Kane County Nuggets

Timbs v. Indiana, 2019 SCOTUS (February). Episode 594 (Duration 24:32) Eight Amendment ban on excessive fines and forfeitures extends to the states. Subscribe: Apple Podcasts | Google Podcasts | Spotify | Android | RSS  APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS While Supplies Last Get A FREE Copy Of The Book... Not your typical legal book. Easily identify winning scenarios.  Busy lawyer's guide to explosive litigation growth. Get Free Book Now! Click Here For Free Book. In This Episode... "Often when the defense wins one, you know, we get excited and we want to apply it to everything." -- Anthony Cameron. About Anthony Cameron Anthony Cameron is a lawyer in Quincy, Illinois. Anthony was Adams County state's attorney from 1980 to 1984. Now, his practice does it's fare share of criminal defense. However, Anthony does not limit his practice to only criminal justice cases. Any dilemma involving conflict with a government agency is in his wheelhouse. "Can't Miss" Moments: ✓ What does Timbs v. Indiana have to say about Illinois DUI vehicle forfeiture? Do innocent owners now have a stronger claim? (Go to 8:41) ✓ Illinois already had a built in Eight Amendment protection clause into its Article 36 Forfeiture statute. To their credit they actually mention the Eight Amendment, but... (Go to 9:41) ✓ Here's a solid example of how Timbs v. Indiana could effect the outcome of a current Illinois based asset forfeiture. (Go to 10:54) Links & Resources Illinois Crime Related Forfeiture of Vehicles Illinois Crime Related Forfeiture of Property Eight Amendment of The United States Constitution Illinois Innocent Owner Hearing Article 36 Eight Amendment Statement on Proportionality Issue The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? Facts Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000. Timbs paid for the vehicle with money he received from an insurance policy when his father died. Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction. The Bill of Rights “The constitutional Amendments adopted in the aftermath of the Civil War,” however, “fundamentally altered our country’s federal system.” McDonald, 561 U. S., at 754. With only “a handful” of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id., at 764–765. A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” The Eighth Amendment Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Part Of Our History For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald, 561 U. S., at 767. This Includes Asset Forfeitures In Austin v. United States, 509 U. S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. We thus decline the State’s invitation to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive. As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. Broad Rights Are Protected In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. Look At These Recent SCOTUS Cases For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id. We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California, 573 U. S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged. * * * For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. Holding The Fourteenth Amendment, we hold, incorporates this protection.. Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment. Before You Go... If you are an Illinios attorney and keeping up with the case law is important to you then read below to see how to get a free copy of my book. You can't argue with the idea that steady, persistent attention to the cases increases your litigation game. But what if you could double, triple, even quadruple the number of cases your brain can digest and process? Are you ready to join the other attorneys who have discovered how to make their ears their secret weapon?

These are the top 13 most important criminal law cases released by Illinois Supreme Court in 2017. Episode 522 (Duration 37:42) 2017 Top 13 Illinois Criminal Law Cases Released By The Illinois Supreme Court Here's a quick snapshot of the top cases: 1. People v. Holmes Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause. 2. People v. Brooks Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn. 3. People v. Way  This was the appellate court decision that reversed the aggravated DUI conviction. 4. People v. Hardman Is is sufficient for a couple officers to testify they are familiar with the neighborhood and that the building is a school? 5. People v. Fort Illinois Supreme Court says State must charge second degree murder if they want to continue with adult sentencing after they lose a first degree murder count. 6. People v. Ayres What does defendant have to say to trigger a Krankel inquiry? 7. People v. Shinaul State is not allowed to reinstate charges after Defendant vacates an invalidated Aguilar AUUW conviction. 8. People v. Howard Illinois Supreme Court upholds the constitutionality of anti loitering statute for sex offenders. 9. People v. Pearse Illinois Supreme Court acknowledges that SORA is a big bloody mess and calls for legislative clarification and police practice changes. 10. People v. Sebby Supreme Court explains how plain error analysis works. 11. People v. Brown Defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case. 12. People v. Relerford Just a small part of the Illinois stalking statute was declared unconstitutional. 13. People v. Ringland Prosecutors cannot designated officials with general policing power.

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)

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

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

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

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

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

People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15) In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs. Lower Case Opinion People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57) Officer untrained in the use of narcotics doesn't know enough to make this DUI drug arrest. The trial court found that the officer lacked probable cause to arrest defendant for DUI/drugs because he was not qualified as an expert on the effects of drug use. Similarly, the appellate court concluded that a person with no specialized training could not properly opine on the “detection of controlled substances,” unlike the detection of alcohol use, the effects of which are “commonly known."  2017 IL App (3d) 160025, ¶ 16. In reaching this conclusion, the appellate court relied, in part, on People v. Shelton, 303 Ill. App. 3d 915 (1999), and People v. Stout, 106 Ill. 2d 77 (1985).  Facts The officer had no specific DUI/drug detection training. He responded to a motorist’s call reporting an unconscious person in a vehicle, possibly having a seizure. When he arrived, paramedics were already on the scene. Defendant’s Ford Explorer was in the eastbound lane of Route 52, with the passenger side tires on the grass and the driver’s side tires on the road. The vehicle’s transmission was in park, and the motor was running. The officer observed defendant behind the wheel, with his foot on the brake and his left hand on the steering wheel. Initially, defendant did not respond to the paramedics’ commands to exit the vehicle. He insisted that he was able to drive and said, incorrectly, that he was northbound on Route 59. Eventually, the paramedics convinced him to leave the vehicle; they placed him in the ambulance and transported him to the hospital. Officer's Observations The officer saw a Red Bull can “on the passenger’s side in plain view.” The can had been cut or torn in half and had burn marks on its interior. On the outside bottom surface of the can, he saw a brown residue. He performed a “NARK swipe” test of the residue, which, he said, showed the presence of “opiates.” He also saw an uncapped one-milliliter syringe on the passenger seat. He described the syringe as having been “used.” He also found a small plastic bag containing a brown granular substance in defendant’s wallet in the center console. Results of testing of this substance were not available at the time of the hearing. He did not conduct any field sobriety tests. At the hospital, the officer observed that defendant was “tired and lethargic.” He also testified that prior to the arrest defendant told him that he was diabetic. Fresh Track Marks On cross-examination, the officer testified that he spoke to the paramedics at the scene to ask if they had seen any signs of intoxication. They reported that defendant did not smell of alcohol, but they did observe a “fresh track mark” on his arm where a needle had been used. Paramedics also reported that defendant was sweating, had pinpoint pupils, had a rapid heart rate of 144 beats per minute, and was drifting in and out of consciousness. Suspension Recession Hearing A motorist may request a judicial hearing for rescission of a statutory summary suspension in a civil proceeding, subject to civil procedure rules. 625 ILCS 5/2-118.1(a). The scope of the hearing is limited to four specific statutory grounds for rescission. One of the issues that may be raised is “whether the officer had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination of both[.]” Id. § 2-118.1(b)(2). The motorist has the initial burden of establishing a prima facie case for rescission. If he does so, the burden shifts to the State to come forward with evidence justifying the suspension. Id. at 559-60; see also People v. Orth, 124 Ill. 2d 326, 338, 340 (1988) (motorist has initial burden of making prima facie case for rescission; to make prima facie case, defendant must present evidence to support at least one of the statutory grounds for rescission). Probable Cause Standard This court has equated the “reasonable grounds” standard with the probable cause standard applied in the context of search and seizure under the fourth amendment. People v. Wear, 229 Ill. 2d 545, 560, 563 (2008). Under this standard, probable cause exists when the facts known to the officer at the time are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime, based on the totality of the circumstances. The standard is the probability of criminal activity, not proof beyond a reasonable doubt or even that it be more likely than not. Issue In This Case A more precise formulation of the issue is whether defendant made a prima facie case that the officer lacked reasonable grounds to arrest him for DUI/drugs. This requires us to answer two questions. First, must an officer be qualified as an expert to testify regarding his inference from the totality of circumstances that a motorist was driving under the influence of drugs? And, if not, did the totality of the circumstances in the present case provide reasonable grounds for the arrest of defendant for DUI/drugs? Opinion Testimony Under our rules, a witness who is not an expert may testify to his opinions or inferences unless they are “based on scientific, technical, or other specialized knowledge.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). If such knowledge is relied upon, the witness must be qualified as an expert. Ill. R. Evid. 702 (eff. Jan. 1, 2011). ¶ 26 People v. Shelton Overruled We have reservations about the court’s analysis in Shelton. In Shelton, an officer testified at a criminal jury trial that the defendant was under the influence of drugs, basing his conclusion on the manner in which he was driving, his conduct during the traffic stop, his failing all of the field sobriety tests given, and his statement to the officer that he was “ ‘on Tylenol 3 with codeine.’ ” Shelton, 303 Ill. App. 3d at 917-18. Although it found the evidence presented sufficient to support the jury’s verdict beyond a reasonable doubt, the appellate court in that case nevertheless commented that the trial court found “ ‘no evidence *** in the record’ ” of the effects of any drugs (id.), apparently discounting the defendant’s speeding, his odd and agitated behavior during the traffic stop, and his failure of field sobriety tests (id. at 917-18). While such conduct is not always indicative of drug intoxication, it was consistent with the defendant’s being under the influence in light of his admission that he was “on” a prescription pain killer. We, thus, disagree with the Shelton court that expert testimony was necessary to present to the jury the officer’s assessment that the defendant was under the influence. To the extent that Shelton requires expert testimony in every case in which an officer’s finding of probable cause is based on his or her inference from the totality of circumstances that the defendant was under the influence of drugs, it is hereby overruled. Defendant Was Acting Wacky In This Case During the traffic stop, the defendant’s behavior included telling the officer that he did not have a driver’s license before giving him the license, his suggestion that the officer should go for a ride with him, ­ his statement that he was “ ‘getting ready to run’ ” followed by a statement that he was just kidding, his constant talking, his inability to stand still, his lack of balance, and his threats against the officer and his family. An officer with many years of experience or with specialized training relevant to the issue may be more credible than a rookie. That said, nothing in our precedent requires expert testimony in every case involving the question of whether a defendant was under the influence of drugs. Sometimes You Do Need An Expert In some circumstances, expert testimony regarding the basis for an officer’s finding of probable cause is required. In People v. McKown, 236 Ill. 2d 278 (2010), the defendant was convicted of DUI/alcohol, based in part on the results of the horizontal gaze nystagmus (HGN) test performed by the arresting officer. The defendant argued on appeal that the HGN test did not meet the Frye standard for admissibility of scientific evidence. We held that “evidence of HGN field-sobriety testing, when performed according to *** protocol by a properly trained officer, is admissible under the Frye test for the purpose of showing whether the subject has likely consumed alcohol and may be impaired.” Id. at 306. “A properly trained police officer who performed the HGN field test in accordance with proper procedures may give expert testimony regarding the results of the test.” Id. Defendant Was Obviously Impaired In the present case, there is no question that the defendant was impaired. The probable cause question is whether the relatively inexperienced officer could have reasonably concluded that the defendant’s obvious impairment was due to his use of drugs. Had the officer conducted field sobriety tests, his experience and expertise in conducting such tests and interpreting the results would be at issue. However, no such tests were conducted, and the results of such tests were not the basis for the arrest. The officer’s conclusion that defendant was under the influence of drugs was not based on scientific, technical, or specialized knowledge that required specialized training or experience. The trial court and the appellate court held categorically that a police officer could not opine as to whether a motorist was under the influence of drugs without being qualified as an expert witness. We reject this conclusion, which is not supported by our precedent. Totality of the Circumstances Having rejected the lower court’s insistence on expert testimony in this c

People v. Middleton, 2018 IL App (1st) 152040 (June). Episode 503 (Duration 17:07) Here's the photo... Reversible error for the state to spring a doctored image before the jury on rebuttal argument. Gist Defendant was arrested and then charged with murder after allegedly shooting to death his girlfriend’s brother on the sidewalk outside the victim's home. A jury found defendant guilty of the first degree murder while personally discharging a firearm and sentenced to 53 years in prison. The Eye Witness At trial, the victim’s neighbor testified that he was standing on his front porch around when he saw defendant near the sidewalk across the street and several houses east from where he stood. The witness was 13 years old. The Shooter He testified that there was nothing blocking his view and he described defendant as an African-American male, with long dreads half pinned back, who was wearing black jogging pants, and a gray hoodie bearing black writing and the hood was hanging down. Defendant wore a ski mask that covered only the lower half of his face, which the witness described as going up “right here to the nose.” The witness saw defendant look in his direction as he drew a silver revolver from his hoodie. The witness said he saw defendant as he “rammed up on” the victim, who was standing on the sidewalk. The Shooting The 13 year old heard the victim plead with defendant not to shoot but defendant fired at his chest, causing the victim to fall to the ground. Defendant returned to his car but “came back like he wasn’t *** finished with him,” and shot the victim again in his upper body. The Get-A-Way The witness then saw defendant get into a white car and drive off. At this point, the witness moved from his porch to the hallway and looked out the window, noting he could see the whole block from that vantage point. He saw defendant, still wearing the half-ski mask as he drove west past his house. The 13 year old could see defendant’s whole upper body and from his nose “all the way up.” The State did not present the ski mask at trial or ask the witness to identify any image of defendant wearing a ski mask. Later ID Less than three months later, the witness identified defendant as the shooter from a photo array. One month later, the witness identified defendant from a lineup.  State's Closing During closing argument, defense counsel honed in on the key question of whether the 13 year old was actually capable of identifying defendant as the shooter. During its rebuttal argument, the State asserted that the identification was sound notwithstanding the half-ski mask. The State argued the witness “could see the defendant’s hair, the defendant’s eyes, the defendant’s forehead, defendant’s legs, his chest, his shoulders.” To emphasize this point, the State presented the jury with two, side-by-each photographs. One was defendant’s mug shot taken the day of his arrest. The other photo showed the same mug shot, but in the nature of a crude “photoshop” edit, it blacked out the bottom portion of his face, in an obvious effort to show what defendant might look like if wearing a “half-ski mask.” The court did not strike the exhibit or the related argument, and it denied the motion for mistrial. The Picture The exhibit showed a black half-circle superimposed over the lower portion of defendant’s face in his arrest mug shot and cannot be described as a graphic representation of a mask.  Issue Defendant contends the trial court’s denial of defense counsel’s motion for a mistrial on the basis of introducing this exhibit during rebuttal closing argument without having introduced this exhibit at trial constitutes reversible error. Defendant's Argument Defendant specifically argues the altered mug shot was inadmissible in the first place as a demonstrative exhibit because it did not depict the “physical facts as they actually existed at the time of the crime” and the display was at the heart of this identification case. Defendant argues that even assuming the altered mug shot was admissible, the State failed to properly tender it to the defense prior to trial or lay a foundation for its introduction during trial, instead springing the surprise exhibit on the jury during rebuttal argument. He argues he was deprived of the opportunity to object to the exhibit, move for its exclusion prior to trial, or prepare a counter demonstrative exhibit depicting defendant wearing full ski mask. Defendant thus asserts the introduction of the exhibit was prejudicial error which could not be cured with any remedial instruction. States Argument The State responds that the State’s conduct was not improper because the altered mug shot accurately reflected the victim’s testimony that defendant wore a half-ski mask during the shooting and, moreover, was used as invited comment, in response to defense counsel’s closing argument. Demonstrative Evidence We note that demonstrative evidence has no probative value in itself but rather serves as a visual aid to the jury in comprehending the verbal testimony of a witness. See Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 341-42 (1991). The overriding considerations in admitting demonstrative evidence are relevancy and fairness. People v. Burrows, 148 Ill. 2d 196, 252 (1992). Thus, before a demonstrative exhibit like the present one can be introduced, a foundation must be laid, by a knowledgeable witness, that it accurately depicts and portrays what it purports to show. In addition, the exhibit is only admissible if its probative value is not substantially outweighed by the danger of unfair prejudice. Court Finding The court agreed with defendant that it was error for the State to introduce a demonstrative exhibit during its rebuttal argument without having produced the exhibit to the defense and without laying any sort of foundation for its use during the trial. Analysis While the State and the court found the exhibit to be consistent with Conner’s testimony as to the half-ski mask, we question the wisdom of that conclusion, as it strains credulity that any ski mask could possibly look like a blacked-out half-circle over an individual’s face. As set forth above, there is no indication that this witness reviewed any photographic or graphic images of defendant wearing a ski mask, when he identified defendant as the shooter to police. At trial, the State did not introduce any mask into evidence or ask the witness to testify about the altered mug shot, let alone defendant’s unaltered mug shot. Moreover, we cannot say that the witness would not have testified that the altered mug shot, apparently created some two years after the shooting, reflected how the half-ski mask looked or how defendant looked while wearing the half-ski mask when the crime occurred. The witness testified that defendant had his hair half pulled back and a hoodie on at the time of the shooting. In the arrest photo, by contrast, defendant’s dreadlocks are down, and he’s wearing a white v-neck T-shirt. The State thus deprived the defense of questioning the accuracy of the image, moving to exclude it or forcing the State to create the image to the defense’s satisfaction, cross-examining the witness regarding the image, and likewise presenting a counterimage of a full ski mask. Prejudice The image was central to this prosecution, which revolved almost entirely around the accuracy of Conner’s identification of defendant as the shooter. Here, the evidence was closely balanced, as there was no physical evidence linking defendant to the crime, and the 13­ year-old witness was the only eyewitness to the shooting. The testimony, while competent, was impeached by the State’s own police reports indicating the shooter wore a full ski mask with velcro and the defense’s two witnesses. The closely-balanced nature of the evidence made the error especially harmful. In addition, the side-by-side presentation to the jury of the altered mug shot, introduced absent any evidentiary foundation, with the exact same properly admitted mug shot immeasurably enhanced the prejudice. The jury was then forced to compare how defendant appeared wearing the supposed ski mask to how he looked without it, not on the day of the crime but the day of his arrest, thus boosting the credibility of the State’s main witness. No Instruction Could Fix This Furthermore, the judge did not instruct the jury to disregard the altered photo but rather emphasized it was demonstrative, making this case arguably more prejudicial. Putting the trial court’s instruction aside, it is difficult to conceive of any instruction that would be curative of this rebuttal sucker punch. Holding Based on the totality of the circumstances, the State failed to maintain its burden of proving the error was harmless beyond a reasonable doubt, and the court abused its discretion in both allowing the State to utilize the undisclosed demonstrative exhibit in rebuttal and also in denying defense counsel’s motion for a mistrial.  The gravity of the error resulted in a denial of fundamental fairness. While we reverse and remand for a new trial on the basis of the improper admission of the altered arrest photo, remand for a new trial. Offensive Rebuttal In reaching this conclusion, we find the State’s argument that the use of the exhibit was “invited” comment on rebuttal is palpably offensive, as this specific argument was surely expected given the defense theory of the case, announced in opening statement, as being all “about identification” and that “no one could have actually seen the face of the person who shot [the victim].” Almost all of the evidence related to the identification issue. The State Had This Ready If such an argument was unanticipated, the State would have had no opportunity to spring this doctored exhibit on the court because they would not have been on notice. Instead, it is clear that the prosecution knew the defense would focus on the eyewitness identification, so they prepared this exhibit ahe

People v. Hayes, 2018 IL App (5th) 140223 (February). Episode 461 (Duration 17:53) Defendant runs over and kills a 7 year old boy, however, the resulting blood draw is out because defendant was never under arrest. Hits & Kills A Little Boy Defendant was driving home from the store with two of his children. One of the children attempted to hand the defendant a piece of candy to unwrap for him. The defendant looked back to talk to the child. As he did, his vehicle struck seven-year-old David Kirby. According to witnesses, the boy rode his bicycle between two parked cars onto the roadway and into the path of the defendant’s van. Defendant could have done anything to avoid the accident. The accident took place near city hall in Sumner, Illinois. The defendant ran into city hall asking for help. Brent Parrott, a volunteer firefighter who was there that day, administered CPR to David. Several police officers responded to the accident, including Lawrence County Deputy Danny Ash, Illinois State Police Trooper Brooks Thomann, and Bridgeport Police Chief Scott Murray. No Signs of Intoxication No Tickets Issued Trooper Thomann testified that he had both training and experience in recognizing the signs of intoxication or influence of drugs in motorists. He did not notice anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated or under the influence. He did not detect the odor of alcohol or drugs, and he noted that the defendant did not slur his speech. Asked what his conclusion was as to the cause of the accident, Trooper Thomann replied, “as far as I could see, the child had just ridden out into the street. And when he came around that vehicle, shot out in the middle of the street, and then Mr. Hayes struck him.” Trooper Thomann testified that he did not issue any traffic citation to the defendant, explaining, “There was no violation, as far as Mr. Hayes.” To The Hospital Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening. Chief Murray did so. He testified that he did not know whether Deputy Ash had placed the defendant under arrest prior to this time. He testified that he did not personally place the defendant under arrest at any time, and he did not issue the defendant any traffic citations. Chief Murray drove the defendant to the hospital. He further testified that during the 10-minute ride to the hospital, the defendant was not handcuffed. At the hospital, Chief Murray accompanied the defendant to the restroom while he provided a urine sample and remained with him while his blood was drawn. Eventually Charged Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. Chief Murray handed Deputy Ash the DUI kit completed by hospital staff and then left. He assumed that Deputy Ash transported the defendant back to the police station, but he left the hospital before they did. The test indicated the presence of drugs, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)). Deputy Ash arrived after the samples were taken and drove the defendant back to the police station. Implied Consent Deputy Ash was then asked about his decision to have the defendant transported to the hospital for drug testing. Defense counsel asked him on what basis he made that decision. Deputy Ash responded, “He was involved in a personal injury accident. He was the driver of a vehicle involved in a personal injury accident.” Deputy Ash then testified that “consent is implied whenever you receive a driver’s license to obey all the rules in the [Illinois Vehicle Code].” Blood & Urine Results The results of initial tests performed by the hospital’s lab were faxed to Deputy Ash later that afternoon. The blood tests revealed the presence of amphetamine. The urine sample collected on that date, however, indicated the presence of methamphetamine, amphetamine, THC, and naproxen. After receiving these results, Deputy Ash placed the defendant under arrest for DUI. Deputy Ash also issued two traffic citations to the defendant for failing to exercise due care (id. § 11-1003.1) and failing to reduce speed to avoid an accident (id. § 11-601(a)). The next day defendant was charged with aggravated DUI (id. § 11-501(d)(1)(F)). Second Blood & Urine Tests Deputy Ash asked the defendant to submit to a second drug testing again a few days later. This testing of both the blood and urine samples tested negative for the presence of any drugs. Deputy Ash testified about the timing of the defendant’s arrest for DUI and the issuance of the two traffic citations. He noted that he believed the statute governing implied consent to drug testing required only the issuance of a traffic citation, rather than an arrest. He conceded that the defendant was not under arrest at the time he was transported to the hospital for testing, testifying that he arrested the defendant on the charge only after receiving the initial test results from the hospital’s lab. Defense counsel asked Deputy Ash whether he had issued traffic citations to the defendant prior to directing him to be taken to the hospital for drug testing. In response, Deputy Ash stated that the defendant had not been handed a citation prior to this point. He acknowledged that he did not give the citations to the defendant until two days after the initial tests, but he testified that the citations were written earlier. Asked to explain why he took the unusual step of ordering a second drug test, Deputy Ash explained that someone from the state’s attorney’s office informed him that the initial test might not be valid because the defendant was not given the warning to motorists and because he was not given any traffic citations prior to the tests. He testified that the second test was intended to remedy this flaw. Trial Court Says There Was Probable Cause The court found that the tests were supported by probable cause. It reasoned that Deputy Ash’s knowledge that the defendant had a history of drug charges and a prior DUI coupled with the defendant’s admitted lack of attention to the road gave Deputy Ash probable cause to believe the defendant may have been under the influence of drugs. In explaining its ruling, the court noted that Deputy Ash might reasonably have decided that he did not believe the defendant’s version of events and that Deputy Ash might reasonably have concluded that the presence of drugs may have been a contributing factor to the defendant’s inattentiveness. 54 Months Prison! The matter proceeded to a stipulated bench trial, at which the court found the defendant guilty. The defendant subsequently filed a motion for a new trial, which the court denied. The court sentenced the defendant to 54 months in prison. Issue The question before us is whether the results of the drug tests should have been excluded because they were obtained in violation of the fourth amendment to the United States Constitution. The Law The compulsory testing of a defendant’s blood or other bodily fluids is a search within the meaning of the fourth amendment. To be reasonable under the fourth amendment, a search must ordinarily be conducted pursuant to a warrant supported by probable cause. There are, however, “a few specifically established and well-delineated exceptions” to the requirement of a warrant. Katz v. United States, 389 U.S. 347, 357 (1967). Consent Is An Exception Under one exception, a warrantless search is reasonable—and therefore permissible— if there is voluntary consent to the search. People v. Anthony, 198 Ill. 2d 194, 202 (2001); Kratovil, 351 Ill. App. 3d at 1030. Consent to a search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. The validity of a warrantless search based on consent thus “depends on the voluntariness of the consent.” Anthony, 198 Ill. 2d at 202. Whether consent is voluntary is a question of fact that must be determined by evaluating the totality of the circumstances. The State has the burden of proving that the defendant’s consent to the search “was truly voluntary.” Id. No Probable Cause Here We also agree that the July 25 test was not supported by probable cause. Here, the court’s finding of probable cause was based on the court’s belief that it would be reasonable for Deputy Ash to disbelieve the version of events given by the defendant, but Deputy Ash never testified that this was the case. In addition, the court found that it would be reasonable for Deputy Ash to conclude that the presence of drugs might have contributed to inattention on the part of the defendant. However, this reasoning is bootstrapping, and Deputy Ash never testified that he in fact reached that conclusion. We note that because Deputy Ash did not have probable cause to test the defendant for drugs, we need not consider whether exigent circumstances were present under McNeely. We conclude that the court erred in finding the tests to be justified on the basis of the exigent circumstances-plus-probable-cause exception. No Consent Either We turn our attention to the question of consent. We first consider whether the testing was supported by the defendant’s actual consent. Must Be Clearly Given Acquiescence to apparent authority is not the same thing as consent. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); Anthony, 198 Ill. 2d at 202. Consent to a search “must be received, not extracted.” Anthony, 198 Ill. 2d at 202 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). A defendant can consent to a search without making an express verbal statement of consent; he can instead convey his consent to officers through nonverbal conduct. As the Illinois Supreme Court observed in Anthony, dueling inferences can easily arise from a single ambiguous gesture. As we explained earlier, consent to a search is the waive

People v. Lee, 2018 IL App (3d) 170209 (February). Episode 458 (Duration 6:59) 25 minute wait for the sniff dog was too long. Drug Charges The State charged defendants, Wan Fung Lee and Jacky Yao Chuan Xiong, with unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2014)), unlawful possession with intent to deliver cannabis (id. § 5(g)), and unlawful possession of cannabis (id. § 4(g)). The Stop Sergeant Clint Thulen testified that he pulled over defendants’ vehicle on March 9, 2015, for failure to signal a lane change. A video recording of the traffic stop was introduced into evidence. Defendants’ exhibit No. 4 is a three-page timeline of the traffic stop. The first page chronicles the stop up until the point where Thulen returns Lee’s license. The second page details Thulen’s requests for consent and the period of waiting for the canine to arrive. The third page covers the period of the stop after the canine arrives. Defendants agree that the traffic stop in the present case was lawful—based upon Thulen’s probable cause to believe a traffic violation had occurred—up until the point that Thulen issued Lee a warning ticket. The State agrees that, at that point, Thulen had neither probable cause nor a reasonable, articulable suspicion upon which defendants could be detained. The Video The video begins as Thulen commences the traffic stop. Thulen approaches the passenger side of the vehicle and leans into the window. Approximately 1½ minutes later, the driver of the vehicle, later identified as defendant Lee, exits the vehicle and walks to the front of Thulen’s squad car. Thulen sits in the driver’s seat of the squad car and soon thereafter Lee sits in the passenger seat. The officers said they couldn’t smell the weed but they were sure the bags in the car contained weed. They ask about it when defendant is in the squad car. He denies and the officer tells defendant to shut the door so he doesn’t run. Thulen radios in defendants’ information. At the seven minute mark of the video recording, a second officer, Sergeant Brian Strouss arrives at the scene. Thulen asks Lee and Xiong, “You guys have got nothing to hide, right? Would you mind waiting for a dog to come and walk around the outside of the car?” Thulen tells them “it won’t take too long.” At the 14:45 minute mark of the video, Thulen radios in requesting a canine. He then tells defendants, “Hey, you’re free to go. You can do anything you want. You know, you’re free to go so I sure appreciate you waiting around for the dog though.” For approximately 25 minutes, defendants and the officers make small talk outside of the vehicle. In that period, Thulen requests that Xiong roll up the windows of the vehicle. The dog alerted. The trial judge granted the motion to suppress and the trial court sustained it. Issue Thus, the issue turns upon whether the encounter from that point forward was consensual. Mendendhall Factors We need not venture outside the four factors enumerated in Mendenhall to find the most compelling in the present case. Thulen yelled, “Hey, no talking” at defendants, a plain example of “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”  Not only was Thulen’s statement made in a loud and controlling voice, but the substance of that statement was in the nature of an order, dictating what defendants may or may not do. Moreover, the order was accompanied by Thulen gesturing for Lee to come to him and, later, a direction that Lee look at Thulen. In a short span of time, toward the very beginning of the purportedly consensual portion of the stop, Thulen had thus made a number of demands of Lee. A reasonable person would not believe that he was allowed to leave the scene completely if he was not even allowed to speak to his friend. Officer Safety In its initial brief, the State ignores Thulen’s command that defendants not speak, only describing Thulen’s tone and language as “respectful, polite, and deferential to [defendants’] wishes as to whether they would remain on the scene.” In its reply brief, the State simply asserts that Thulen’s command “was merely for officer safety.” To be sure, this court recognizes an officer’s need to protect himself or herself by preventing individuals from communicating in a language that the officer does not understand. However, Thulen did not calmly ask defendants to speak in English. Instead, he loudly ordered them to stop speaking completely. Thulen himself testified that he erred in delivering the command that he did, admitting that he should have asked defendants to speak in English. Again, a reasonable person who has been forcefully commanded by an officer to stop speaking would not feel free to enter his vehicle and drive off.  

People v. Chairez, 2018 IL 121417 (February). Episode 457 (Duration 10:04) Another UUW provision is struck down. Gist On April 24, 2013, pursuant to a negotiated plea agreement, defendant Julio Chairez pled guilty in the circuit court of Kane County to possessing a firearm within 1000 feet of Virgil Gilman Trail, a park in Aurora, Illinois, in exchange for the State’s agreement to file a nolle prosequi for several other charges and the recommendation that defendant receive a sentence of two years’ probation. Issue At issue in this appeal is the constitutionality of section 24-1(a)(4), (c)(1.5) of the unlawful use of a weapon (UUW) statute (720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012)), which, in pertinent part, prohibits an individual from carrying or possessing a firearm within 1000 feet of a public park. The Statute At the time of the proceedings herein, the UUW statute provided: “§ 24-1. Unlawful Use of Weapons. (a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(4) does not apply to or affect transportation of weapons that meet one of the following conditions: (i) are broken down in a non-functioning state; or (ii) are not immediately accessible; or (iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card[.] *** * * * (c) Violations in specific places. *** (1.5) A person who violates subsection 24-1(a)(4) *** on any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.” 720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012). The Second Amendment The second amendment to the United States Constitution provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” U.S. Const., amend. II. Through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is “fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). The Case Law In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court determined that there is a guaranteed “individual right to possess and carry weapons in case of confrontation,” based on the second amendment. However, Heller instructs that even though the second amendment guarantees an individual right to bear arms, that right is “not unlimited.” Adopting the reasoning in Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), this court in People v. Aguilar, 2013 IL 112116, ¶ 21, recognized that “the second amendment protects the right to possess and use a firearm for self-defense outside the home.” As such, we held the offense set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, which prohibited carrying on one’s person or in any vehicle, outside the home, an uncased, loaded, and immediately accessible firearm, to be unconstitutional on its face. Two years later, in Mosley, 2015 IL 115872, ¶ 25, we extended Aguilar’s finding of facial unconstitutionality to another portion of the AUUW statute, section 24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)), which prohibited carrying an uncased, loaded, and immediately accessible firearm on a public way. This court has already said that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional “without limitation” (id. ¶ 29) because “[t]he offense, as enacted by the legislature, does not include as an element of the offense the fact that the offender has a prior felony conviction” (id. ¶ 25). As such, we held there is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A), and a prior felony conviction that enhances the felony classification at sentencing is not an element of that offense but, rather, a sentencing factor which enhances the penalty from a Class 4 felony to a Class 2 felony. People v. Burns, 2015 IL 117387. Collectively, this court has held that the second amendment protects an individual’s right to carry a ready-to-use gun outside the home, subject to certain regulations. What About Bans Within 1000 Feet Of A Park? The question, then, is whether the offense of possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute, impermissibly encroaches on conduct at the core of the second amendment right to armed self-defense and whose right it affects. There Is A Constitutional Test In sum, what is taught from these cases is that step two of our second amendment analysis begins with a balance of considerations where the quantity and persuasiveness of the State’s evidence required to justify the challenged restrictions varies depending on how much it affects the core second amendment right to armed self-defense and whose right it affects. The rigor of this means-end analysis “depends on ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.’” The closer in proximity the restricted activity is to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review. If the State cannot proffer evidence establishing both the law’s strong public-interest justification and its close fit to this end, the law must be held unconstitutional. Analysis Applying this framework to the law at issue here requires an initial determination of where on the sliding scale of intermediate scrutiny the law should be analyzed. To answer this question, our first task is to determine the breadth of the law and the severity of its burden on the second amendment. We find that the 1000-foot firearm restriction at issue more closely resembles the restrictions at issue in Ezell I, Ezell II, Moore, and Aguilar. In fact, the 1000-foot firearm restriction not only directly implicates the core right to self-defense, it does so more severely than the regulations at issue in the Ezell cases. That is so because section 24-1(a)(4), (c)(1.5) of the UUW statute prohibits the carriage of weapons in public for self-defense, thereby reaching the core of the second amendment. While in the Ezell cases, the laws only affected a right (maintain firearm proficiency) that was merely a “corollary” to the right to possess firearms for self-defense. Although the firearm restriction at issue is not a comprehensive statewide ban, like in Moore or Aguilar, the restriction is not minimal. The firearm restriction not only covers a vast number of public areas across the state, it encompasses areas this court held in Mosley to be areas where an individual enjoys second amendment protection, i.e., public ways. See Mosley, 2015 IL 115872, ¶ 25. Big Burden As to the second variable on the sliding scale, the severity of the law’s burden on the right, the law at issue affects the gun rights of the entire law-abiding population of Illinois like the laws in Moore, Ezell, Aguilar, and Mosley. As in those cases, the law functions as a categorical prohibition without providing an exception for law-abiding individuals. It is therefore a severe burden on the recognized second amendment right of self-defense. All of this suggests that elevated intermediate scrutiny should apply. Government's Burden And under this more rigorous review, the government bears the burden of showing a very strong public-interest justification and a close fit between the government’s means and its end, as well as proving that the “public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.” That means the State must establish a close fit between the 1000-foot firearm restriction around a public park and the actual public interests it serves. No Legitimate Public Interest Turning to the State’s proffered public-interest justifications, the State claims a compelling interest in public safety is served by reducing firearm possession within 1000 feet of a public park. In support, the State relies heavily on an analysis of school violence and the 1000-foot firearm ban surrounding schools. For instance, the State references the federal Gun Free School Zones Act of 1990, which restricts firearm possession within 1000 feet of school grounds. 18 U.S.C. § 921(a)(25) (2012). The State claims that it was in the atmosphere behind the passage of the Gun Free School Zones Act—a rise in school violence in the late 1980s—that the General Assembly passed the law extending the existing restriction on drugs within 1000 feet of schools, public parks, and public housing to also ban firearms from these locations. The State attempts to relate the reasoning behind the gun-free school zones to public parks, stating that because there is a substantial and distinctive interest in protecting those in parks due to a large number of children who frequent these places, prohibiting firearms near public parks is substantially related to the important government interest in protecting these children and others. According to the State, the goal of the 1000-foot firearm restriction around public parks is to extend the distance where a shooter might fire a weapon. Specific Evidence Required We certainly accept the general proposition that preventing crime and protecting children are important public conc

People v. Johnson, 2018 IL App (3d) 150352 (January). Episode 456 (Duration 11:30) Stealing from a Walmart was not a burglary. Sad Facts Defendant is caught takign $76.91 in girl’s clothing from a Walmart. He was pro se and got a hung jury the first time. In the second trial was aquitted of retail therfet but convicted of burglary. Although burglary is a Class 2 felony with a three-to-seven-year sentencing range (720 ILCS 5/19-1(b) (West 2014); 730 ILCS 5/5-4.5-35(a) (West 2014)), the court sentenced defendant as a Class X offender because his criminal record contained prior theft and burglary felony convictions within 20 years. 730 ILCS 5/5-4.5-95(b) (West 2014). The court sentenced defendant to eight years in prison. Burglary The burglary statute identifies two ways in which a person commits the offense: “A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, *** or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a) (West 2014). To commit either manifestation of burglary, the offender must lack authority to be present within the building. Issue The crux of his argument is that he could not enter Wal-Mart “without authority” because he entered and exited the store during business hours and remained in designated public areas. See Also Episode 155 - People v. Bradford, 2016 IL 118674 (March). Defendant relies on Bradford, where our supreme court held that an offender commits “burglary by remaining” only if “he exceeds his physical authority to be on the premises.” Id. ¶ 31. Defendant claims Bradford applies to either manifestation of burglary. The State argues that defendant never entered the building lawfully; therefore, Bradford does not require reversal. More On Bradford The supreme court recently held that the limited authority doctrine does not apply in “burglary by remaining” shoplifting cases. Bradford, 2016 IL 118674. In Bradford, the defendant walked into a Wal-Mart with another man and immediately stole two DVDs from a display near the cash registers. He took these DVDs to the customer service desk and “exchanged” them for a Wal-Mart gift card. Next, he walked to the men’s clothing department where he selected a hat, removed the price tag, and wore it. He then retrieved a pair of shoes from the shoe department and placed them in a Wal-Mart bag that he concealed in his pocket— presumably to represent that he already purchased the shoes. He wore the hat and carried the shoes to the cash registers, where he rejoined the other man. He paid for the man’s merchandise with the gift card he received in exchange for the DVDs and exited the store without paying for the hat or shoes. The appellate court, citing Weaver, applied the limited authority doctrine and held that the defendant remained in the store without authority once he formed the intent to shoplift. People v. Bradford, 2014 IL App (4th) 130288, ¶¶ 31, 33-34. Limited Authority Doctrine The State relies on the “limited-authority doctrine,” which states that “one’s otherwise valid authority to be in certain premises is vitiated when that individual acts in a manner inconsistent with the authority originally granted.” People v. Wilson, 155 Ill. 2d 374, 378 (1993). According to the State, shoplifters who form the intent to steal before entering a store lack authority to enter.  They commit burglary the instant they cross the building’s threshold. Bradford Was Charged Differently The State claims that this case is distinguishable from Bradford because the State charged defendant with “burglary by entering,” whereas Bradford addressed “burglary by remaining.” Statutory Construction The limited authority doctrine, relied upon by the State, took shape before Illinois passed its retail theft statute in 1975 (720 ILCS 5/16-25 (West 2014)).  In Bradford, the supreme court reversed the appellate court’s decision. The court emphasized that the legislature enacted the retail theft statute in 1975, 14 years after enacting the burglary statute and 7 years after Weaver. Based on this timeline, “it strains logic to presume that the legislature intended most incidents of retail theft to be prosecuted as burglaries.” Bradford, 2016 IL 118674, ¶ 28. The court reasoned that charging every shoplifter with burglary by remaining would “effectively negat[e] the retail theft statute.” Id. ¶ 27. Because stores are often “building[s]” or trailers (720 ILCS 5/19-1(a) (West 2014)), virtually every retail theft would also constitute a burglary if one’s “authority” hinged on whether he or she intended to shoplift merchandise. Bradford Changes The Law To be fair, a long line of cases supports the State’s position that one who intends to commit retail theft lacks authority to enter a store. This limited authority doctrine would allow a prosecutor to charge and convict a first time offender who enters a store with intent to steal a candy bar with burglary rather than with the misdemeanor charge of retail theft. As explained below, we feel that Bradford changes the law and effectively overrules the law upon which the State relies. Analysis Courts should not interpret criminal statutes to provide prosecutors unbridled discretion to arbitrarily charge some shoplifters with Class 2 felony burglary and others with Class A misdemeanor retail theft under similar circumstances. Another reason not to “give improbable breadth” to our burglary statute in retail theft cases is that the retail theft statute occupies the field of shoplifting crimes. Particularly relevant to this case, the statute covers situations where shoplifters knowingly transfer merchandise “to any other container with the intention of depriving the merchant of the full retail value.” 720 ILCS 5/16-25(a)(3) (West 2014). It also covers situations where shoplifters knowingly use a “theft detection shielding device,” which is “any laminated or coated bag or device designed and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor.” Id. § 16-25(a)(7), (e). The Statute Contemplates These Facts Obviously, persons who enter a store with any of these items formed the intent to commit theft before entering. The statute contemplates all manifestations of retail theft, regardless of whether shoplifters form the requisite intent before or after entering the store.  The state's attempt to distinguish Bradford does not logically follow the supreme court’s rationale. Under either manifestation of burglary, the offender must lack “authority.” If forming the intent to shoplift does not revoke one’s authority to remain in a store, then it cannot logically revoke one’s authority to enter either. We suspect that it is a miniscule percentage of shoplifters who form the intent to steal only after entering a store. Burglary Is Different Than Retail Theft The State’s position also ignores the purpose for criminalizing burglary. The “crime of burglary reflects a considered judgment that especially severe sanctions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants.” Model Penal Code § 221.1 (Explanatory Note). In other words, burglary aims to punish circumstances where a trespass and unwelcomed criminal intent combine to harm the victim more than either individual crime; the whole is greater than the sum of its parts. Applying the limited authority doctrine to shoplifting cases disregards the purpose of criminalizing burglary, negates the retail theft statute, and conflicts with Bradford. Holding We hold that Bradford’s physical authority test applies to all retail theft cases, regardless of when the defendant forms the intent to shoplift. In this case, the State alleged that defendant stole $76.91 worth of merchandise from Wal-Mart. Defendant entered the store during its business hours, remained in public areas while inside, and left the store before it closed. He never exceeded his physical authority. We reverse his burglary conviction.

People v. Brown, 2017 IL App (1st) 150146 (May). Episode 377 (Duration 8:07) Attempt armed robbery is a per se forcible felony. Facts Following a bench trial, defendant Dewayne Brown was convicted of the offense of armed habitual criminal. He was sentenced to 8 years’ imprisonment. Officers are drawn to a parking lot when a car alarm goes off. In the lot they find defendant and his girlfriend smoking a blunt in their own car. Defendant gets out of his car, but is immediately handcuffed. Inside the car there was a purse. The purse was open, and the handle of a handgun was “sticking out” in “plain view.” The officer testified that he recovered the weapon, which turned out to be a Highpoint “black 45-caliber semiautomatic handgun.” The gun was loaded and “contained one round in the chamber and seven in the magazine.” He Fesses Up Defendant immediately “stated that the weapon was his” and explained that he had put the handgun into Fain’s purse. On the way to the station, defendant stated that he wanted to apologize to Fain for placing his gun in her purse. Later at the police station defendant explained where and how he purchased the weapon. Defendant had no FOID card. Criminal History The State also entered into evidence certified copies of defendant’s prior convictions, including a 1998 conviction for attempted armed robbery, a 2006 robbery conviction, and a 2012 possession of a controlled substance conviction. Defendant first challenges the sufficiency of the evidence. Issue Specifically, he argues that the State failed to prove beyond a reasonable doubt that his prior conviction for attempted armed robbery was a forcible felony sufficient to satisfy the elements of the offense of armed habitual criminal. Accordingly, because the State simply presented certified copies of his convictions and did not detail the circumstances surrounding his attempted armed robbery conviction, defendant argues that there was insufficient evidence that his crime involved the use or threat of force against another individual. He submits that attempted armed robbery is not inherently a forcible felony and that the State failed to present any specific details pertaining to his attempted armed robbery conviction to establish that the offense “involved any kind of use or threat of physical force or violence,” such that it could be categorized as a forcible felony. Armed Habitual Criminal Section 24-1.7 of the Illinois Criminal Code of 2012 (Criminal Code or Code) sets forth the offense of armed habitual criminal and provides, in pertinent part, as follows: “(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses: (1) A forcible felony as defined in Section 2-8 of this Code[.]” 720 ILCS 5/24-1.7(a)(1). Forcible Felony “‘Forcible felony’ means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.”   720 ILCS 5/2-8. The "Residual Clause" Where, as here, an offense is not one of the specifically delineated offenses set forth in section 2-8 of the Criminal Code, it will only be deemed to constitute a forcible felony if it falls within section 2-8’s “residual clause” in that it involved “the use or threat of physical force or violence against any individual.” Importantly, the Illinois statute that defines forcible felony does not require the actual infliction of physical injury; instead, the statute requires only the ‘use or threat of physical force or violence. Accordingly, courts construing this provision have emphasized that it is the contemplation that force or violence against an individual might be involved combined with the implied willingness to use force or violence against an individual that makes a felony a forcible felony under the residual category of section 2-8. Armed Robbery Therefore, here the relevant inquiry is whether the underlying predicate offense is an inherently forcible felony to satisfy the elements of the armed habitual criminal statute. Pursuant to Illinois law, a person commits the offense of armed robbery when he or she commits the offense of robbery, which is an enumerated forcible felony that entails knowingly taking property from a person or the presence of another by the use of force or by threatening the imminent use of force, and: “(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or (2) he or she carries on or about his or her person or is otherwise armed with a firearm; or (3) he or she, during the commission of the offense, personally discharges a firearm; or (4) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.” 720 ILCS 5/18-2(a). Attempt Armed Robbery A person commits the offense of attempted armed robbery, in turn, when, with the intent to commit armed robbery, he or she takes a substantial step toward the commission of that offense. 720 ILCS 5/8-4(a). Taking into account these statutory definitions, the offense of attempted armed robbery requires evidence that a defendant possessed the specific intent to knowingly take property from another by threat or use of force while armed with a firearm or other dangerous weapon and took a substantial step to accomplish that objective. 720 ILCS 5/8-4(a), 18-2(a). Holding Thus, by virtue of his conviction of that offense, defendant necessarily demonstrated the requisite contemplation or willingness to use force by virtue of the fact that he was armed with a firearm or other dangerous weapon and took a substantial step to deprive another person of property by threat or use of force. The reviewing court then held that the offense of attempted armed robbery qualifies as an inherently forcible felony for purposes of the armed habitual criminal statute. See Also Episode 180 - Some Attempts of Forcible Felonies Are Not Forcible Felonies Episode 126 - Aggravated Battery is Not Necessarily a Forcible Felony

Kane County Sheriff Ron Hain has instituted a series of new inmate programs. Episode 667 (Duration 34:37) The Kane County Jail's new Diversion Program is making every effort to leave detainees better off than when they came into the jail. In This Episode... "'Go and get that bad guy' is actually a bad way to look at our community." -- Sheriff Ron Hain Sheriff Ron Hain Ron Hain was elected Sheriff of Kane County in 2018. As a deputy his number one focus was on gang and drug enforcement. Now, as Sheriff of Kane County, he's tasked with managing the county jail system and must confront a complicated jail population. How To Contact The Sheriff of Kane County Sheriff Ron Hain Kane County Sheriff's Office 37W755 Route 38 St.Charles, Illinois 60175 KaneSheriff.com "Can't Miss" Moments: ✓ How "go and get that bad guy" mentality turned into something else. It was drug and gang arrests until the work transformed into a different meaning for Sheriff Hain.  (Go to 2:50) ✓ Doing this over and over helped the Sheriff come to a new understanding about his role in law enforcement. Not everyone will react this way.   (Go to 4:08) ✓ "These are not bad guys they're people, there citizens. And those high crime neighborhoods are also low income neighborhoods. These are people who have never been giving an opportunity in their life. How did we expect them to turn out?"  (Go to 4:50) ✓ The 3 categories of inmates that fill our jails. Understanding the reason people end up in jail is the first step to really helping them.  (Go to 5:25) ✓ 18 of the 122 corrections officers are specially trained certified officers that help triage and help identify this kind of inmate. The most important cog in the system isn't even about providing onsite services. The real work begins with an appropriate "exit strategy".  (Go to 7:37) ✓ When it comes to this "10 is a soft number." When it comes to assisting others what are your practical limits?   (Go to 9:10) ✓ Lane number 1 in the system overpopulates the jail with this kind of inmate. This is the cog in the entire system. Do noble work here and watch the crime rate plummet.  (Go to 9:40) ✓ This type of inmate is 74 times more likely to die of an overdose upon release. Identifying these inmates is literally life saving information.  (Go to 10:04) ✓ How a 30 person pilot program within a month ballooned to 54 people. The Sheriff won't say "no" to people in need. You'll learn all about it in the "Recovery Pod."  (Go to 10:50) ✓ Here's a common comment the Sheriff hears: "Hey I don't want to pay for a criminal's recovery and addiction programs; they should be paying for it." Go here to see what the Sheriff says in response.   (Go to 11:38) ✓ How the jailhouse commissary can be used to run down the crime rate...on the outside. No joke and it doesn't cost Joe Tax Payer a dime.  (Go to 12:50) ✓ If inmates think they'll take a few classes and get a shiny letter from the Sheriff they can give to the judge they got another thing common. The rubber hits the rode in these programs and no inmate is guaranteed placement.  (Go to 13:46) ✓ A positive vibe, real life mentors, and better life skills can be seen in this Kane County Jail pod. Recently, they even started an online store that sells their own pressed shirts. Learn all about it here.  (Go to 14:50) ✓ One of the most successful inmates out of "Recovery Pod" runs his business in the jail. He's not selling contraband either. It's 100% legit and has the Sheriff's blessing. The Sheriff's Office is even prepared to help him when he gets to the outside.   (Go to 16:57) ✓ What does female inmate recovery look like? There's a mural in the Kane County Jail that only inmates can see. The Sheriff says he can look at it for hours. It was painted by the inmates of "female" pod. In many ways it captures the entire focus of the whole jail.  (Go to 18:20) ✓ What "soft skills" training looks like, and how it translates into opportunities for inmates who have historically lacked any meaningful opportunity. One of the most fun things that happens in this jail is a fair. It's a different kind of fair than you are thinking.  (Go to 20:12) ✓ What is the biggest push-back Sheriff Hain is getting? It's coming from prosecutors and other police. How does the Sheriff (the keeper of 500 misdirected soles) respond to these critics? Go here to see what the Sheriff says. (He doesn't mind losing friends over this.  What he minds most is something else.)  (Go to 24:40) ✓ "You have to get it started to see what will work." (Go to 26:50) ✓ A phone call most defense attorneys never expect to receive. They won't believe their clients when the client says the attorney is getting the call. Go here for a message to defense attorneys directly from Sheriff Hain. (Go to 30:36) Links & Resources Association for Individual Development in Aurora Ecker Center for Mental Health in Elgin Lighthouse Recovery Center in St. Charles The Pie Project (Yoga to Impact People)

Jamie Mosser, candidate for Kane County State's Attorney, stops by to provide an update on the new Illinois cannabis law and lets us know what's happening with bail reform in Illinois. Episode 658 (Duration 26:11). In This Episode… “What I want to do is take a strong office that we already have with some amazing people, and I just want to make it better.” — Jamie Mosser. Attorney Jamie Mosser Jaime Mosser is a former Kane County Assistant State’s Attorney. She’s now in private practice, and is a Democratic candidate for the head Kane County State’s Attorney. Contact Information Legal Office Mosser & Eisenmenger Law, LLC 525 Tyler Rd Ste Q2 St. Charles, IL 60174 (630) 549-0364 https://www.mosserlawfirm.com/ Campaign Office Mosser For Kane County https://mosserforkanecounty.com/ “Can't Miss” Moments: ✓ Beginning January 1, 2020 Illinois will do away with all misdemeanor charges for possession of cannabis. However, there are some significant restrictions. (Go to 2:05) & (5:55) ✓ The law makes it quite clear there is still a certain amount you cannot exceed or you risk facing felony drug possession charges. There are exceptions for possession of cannabis for medical purposes. (Go to 2:50) ✓ The distinction between decriminalization and full blown legalization still matters. It's not accurate to say Illinois went full legalization. It's not legal across the board.  (Go to 3:48) ✓ The truth about cannabis decriminalization is revealed when you consider the raw logic behind the law. Minor possession is not crime anymore. Selling the stuff is a different story. The law has a pretty strict licensing requirement. (Go to 4:19) ✓ How Illinois is going to make money from all this. (Go to 5:28) ✓ The list of things you still can't do with cannabis runs deeper than just a prohibition against selling it. Jump to this time stamp for a detailed description provided by Jamie on everything else you can't do with cannabis. (Go to 5:55) ✓ When police get a hint of the "smell of weed" that currently has significant legal ramifications for citizens. Jamie takes a stab and how things will change after the law takes effect...will things change?  (Go to 7:58) ✓ Jamie asks: "What's going to happen with the DUI's?" Carol Stream Police Department is working with scientists to be the fist department in Illinois with this new type of machine. (Go to 9:33) ✓ Bail reform in Illinois is in effect and underway. How's it going? We are suppose to be emptying out the jail system. How's that going? (Go to 12:32) ✓ The 7-Day Rule was created to act as a stop-gap against oppressive pretrial detention. Here's how it works. (Go to 15:50) Links & Resources New Illinois Cannabis Law The law decriminalization cannabis is called the Cannabis Regulation and Tax Act (CRTA)  See Also HB1438 Story About Carol Stream Police Department New Cannabis Testing Machine Bail Reform In Illinois Article 110 BAIL Meaning of Words and Phrases 725 ILCS 5/102-7.2 Illinois bail reform law draws mixed reviews Bail law a good measure you don't want to use – by Burt Constable See Also You may also want to check out… New Illinois Cannabis Law Episode 207 - The New Illinois Marijuana Law: A Ken Wang Debriefing (This is now the old law that was changed) Episode 251 - Jeffrey Hall On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law Episodesode 258 - Interview With Jeffrey Hall (A behind the scenes look at the legislative process including the good, the bad, and the ugly. ) Episodesode 340 - The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant With Kim Bilbrey Episode 556 - Charles Schierer On The Best Reason To Change The “Smell Of Cannabis” Rule Episode 509 – Analysis of In re O.S. The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search Episode 015 – Police Car Search Legal in Illinois if They Smell Marijuana…Police Officer Describes A Faint Odor Of Marijuana Episode 276 - People v. Kavanaugh, 2016 IL App (3d) 150806 (December) (You Just Can’t Ignore The Stench Of Weed…And An Accident) Episode 050 - People v. Burns, 2015 IL App (4th) 140006 (January) (Police Dog Sniff of Apartment Door Is a No-No) Episode 630 - People v. Campbell, 2019 IL App (1st) 161640 (April) (Dropsy, Smells-Me, Front Seating, and Other Testilying Testimony Has To Be Weighed On It’s Own Merit) Episode 621 - People v. Brandt, 2019 IL App (4th) 180219 (April) (Police Can Rely On Their Own Cannabis Detectors Located On Their Face) Episode 623 - People v. Rice, 2019 IL App (3d) 170134 (April) (3 Districts All Have Said The Smell Of Weed Still Justifies A Car Search) 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)  Illinois Bail Reform Episode 359 - What You Need To Know About The Illinois Bail Reform Law The Early History of Bail Bonds In Illinois Illinois Bail Bond Law Ten Percent Rule May Cause Heart Attack to the Uninformed Sample Bail Bond Related Criminal Law Motions

Mitchell v. Wisconsin, SCOTUS No. 18–6210, Decided June 27, 2019. Episode 647 (Duration 22:02) Unconscious drivers plus natural BAC dissipation create an exigent circumstance for a blood draw. Gist Police get a call of a very drunk man driving off. Man Is Found Man is found near a lake stumbling and slurring his words. He could hardly stand without the support of two officers. Field sobriety tests were hopeless, if not dangerous, but he could blow for a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin. Man Is Arrested He is arrested for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment. By the time the squad car had reached the station, he was too lethargic even for a breath test. Hospital Instead Police drove him to the hospital instead. Defendant lost consciousness on the ride over and had to be wheeled in. Police asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%. Issue We granted certiorari, 586 U. S. ___ (2019), to decide whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.  Implied Consent A states implied consent scheme is centered on legally specified BAC limits for drivers—limits enforced by the BAC tests promoted by implied-consent laws. In Birchfield, we applied precedent on the “search-incidentto-arrest” exception to BAC testing of conscious drunkdriving suspects. See Birchfield v. North Dakota. We held that their drunk-driving arrests, taken alone, justify warrantless breath tests but not blood tests, since breath tests are less intrusive, just as informative, and (in the case of conscious suspects) readily available. Id., at ___ (slip op., at 35). Exigent Circumstances We have also reviewed BAC tests under the “exigent circumstances” exception—which, as noted, allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013). In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to “natural metabolic processes.” Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough. Don't Forget About Schmerber But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the “further delay” caused by a warrant application really “would have threatened the destruction of evidence.” McNeely, supra, at 152 (emphasis added). See Schmerber v. California, 384 U. S. 757, 765 (1966). Reasonableness Is The Standard The Fourth Amendment guards the “right of the people to be secure in their persons . . . against unreasonable searches” and provides that “no Warrants shall issue, but upon probable cause.” A blood draw is a search of the person, so we must determine if its administration here without a warrant was reasonable. The important question here is what officers may do when a driver’s unconsciousness (or stupor) eliminates any reasonable opportunity for a breath test. Though we have held that a warrant is normally required, we have also “made it clear that there are exceptions to the warrant requirement.” Illinois v. McArthur, 531 U. S. 326, 330 (2001). And under the exception for exigent circumstances, a warrantless search is allowed when “‘there is compelling need for official action and no time to secure a warrant.’” McNeely, supra, at 149 (quoting Michigan v. Tyler, 436 U. S. 499, 509 (1978)). Categorical Conclusion Like Schmerber, this case sits much higher than McNeely on the exigency spectrum. McNeely was about the minimum degree of urgency common to all drunkdriving cases. In Schmerber, a car accident heightened that urgency. And here this driver's medical condition did just the same. Here today the court addresses not the specific facts of this case but instead on how the exception bears on the category of cases featuring an unconscious driver. In those cases, the need for a blood test is compelling, and an officer’s duty to attend to more pressing needs may leave no time to seek a warrant. While our exigent-circumstances precedent requires a “totality of the circumstances” analysis, “the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.” McNeely, 569 U. S., at 166 (ROBERTS, C. J., concurring in part and dissenting in part). BAC Tests Are Important The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavailable to advance those aims, a blood test becomes essential. Dissipation Is Still A Thing It must be noted that enforcement of BAC limits also requires prompt testing because it is “a biological certainty” that “[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. . . . Evidence is literally disappearing by the minute.” McNeely, 569 U. S., at 169 (opinion of ROBERTS, C. J.). As noted, the ephemeral nature of BAC was “essential to our holding in Schmerber,” which itself allowed a warrantless blood test for BAC. Id., at 152. When a breath test is unavailable to promote those interests, “a blood draw becomes necessary.” McNeely, 569 U. S., at 170 (opinion of ROBERTS, C. J.). Thus, in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests described above. Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk. It would be perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish. For these reasons, there clearly is a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. Dissipation + Unconsciousness = Exigent Circumstance The only question left, under our exigency doctrine, is whether this compelling need justifies a warrantless search because there is, furthermore, “no time to secure a warrant.” So even if the constant dissipation of BAC evidence alone does not create an exigency, Schmerber shows that it does so when combined with other pressing needs: “We are told that [1] the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where [2] time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case [without a warrant] was . . . appropriate . . . .” Schmerber, 384 U. S., at 770–771. Thus, exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful. In Schmerber, the extra factor giving rise to urgent needs that would only add to the delay caused by a warrant application was a car accident; here it is the driver’s unconsciousness. Indeed, unconsciousness does not just create pressing needs; it is itself a medical emergency. It means that the suspect will have to be rushed to the hospital or similar facility not just for the blood test itself but for urgent medical care. Just as the ramifications of a car accident pushed Schmerber over the line into exigency, so does the condition of an unconscious driver bring his blood draw under the exception. An Accident Could Cause Exigent Circumstance In many unconscious-driver cases, the exigency will be more acute, as elaborated in the briefing and argument in this case. A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park. And then the accident might give officers a slew of urgent tasks beyond that of securing (and working around) medical care for the suspect. Police may have to ensure that others who are injured receive prompt medical attention; they may have to provide first aid themselves until medical personnel arrive at the scene. In some cases, they may have to deal with fatalities. They may have to preserve evidence at the scene and block or redirect traffic to prevent further accidents. These pressing matters, too, would require responsible officers to put off applying for a warrant, and that would only exacerbate the delay—and imprecision—of any subsequent BAC test. Holding In sum, all these rival priorities would put officers, who must often engage in a form of triage, to a dilemma. It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits. This is just the kind of scenario for which the exigency rule was

Episode 643 (Duration 31:51) Illinois attorney Gary True explains the risk involved for anyone who reveals their gun in public. Licensed and unlicensed gun carriers have something to worry about. In This Episode... "A law abiding person that exposes his gun too much, what ever too much is, is subject to being charged and subject to being searched ." -- Gary True. Attorney Gary True Gary True practices in the areas of business and corporate law, mergers and acquisitions and estate planning.  He also concentrates in the area of self-defense and firearms law.  Gary is licensed to practice law in Illinois, Missouri and Wisconsin. He also teaches a course for other Illinois conceal carry instructors. Contact Information  Gary True 515 St. Louis Street, Suite 203 Edwardsville, Illinois 62025 Tel: 314.872.0331 Fax: 314.872.0321 gtrue@summerscomptonwells.com http://www.summerscomptonwells.com "Can't Miss" Moments: ✓ What does the Illinois Concealed Carry law say about exposing your gun in public? What every properly licensed gun carrier has to be worried about. (Go to 3:58) ✓ This two-word adjective has become a term of art for lawyers and gun owners. Funny how the term is not defined anywhere in the code, and reasonable minds can invent their own working definitions. This is the term we are all waiting for the court to define. (Go to 5:12) ✓ Like it or not, properly licensed gun carriers can still get arrested for carrying a gun if this happens. Here's a clear example of how not to carry your gun in public...when just a few seconds can get you arrested. (Go to 5:49) & (9:42) ✓ A certain group of gun instructors believe this legal term means something else entirely different than what some Illinois judges say it means. The consequences may be dire for certain people if we don't all get on the same page. (Go to 7:15) ✓ The absurdity of it...Guy walking down the street and a gust of wind blows his jacket open a bit exposing the butt of his gun. Some say a crime has just been committed.  (Go to 8:25) & (10:00) ✓ This "ordinary common sense" standard is dead. Why the old rules before the current laws existed don't help us, and in fact, might hurt us. (Go to 8:39) ✓ The real reason you're likely to get arrested if you are seen with a gun in public.  (Go to 10:00) ✓ WARNING - All gun owners licensed to conceal carry better make sure they understand the "traffic stop" rule. If the officer says these magic words a gun carrier has to respond in the right way or risk getting arrested for providing the wrong answer. (Go to 11:55) ✓ What is NOT in the statute is as important as what is in the statute. Knowing what's not in there can save you some hassle. There are a lot of unanswered questions about the law, but Gary says there are some clear-cut examples of when an officer cannot stop you even when they know for sure you have a gun.  (Go to 13:16) ✓ 3 serious hints are out there, if you know where to look, strongly suggesting what the court is going to do next. (Go to 18:30) ✓ How a federal case can come along and upend and change the rules in Illinois. If it's going to happen it will happen this way. (Go to 21:05) ✓ Holding your crotch is not indicative of gun possession precisely because police see no gun. That being said, once you take this out of your pants all bets are off...and if it's fully out then you really have some problems. (Go to 24:01) ✓ Let's face it, most law abiding conceal carry citizens are not going to have trouble with the police. This is the number one thing they have to worry about. (Go to 25:40) ✓ Keep an eye on the case law and look for answers to these questions: (1) What in the world does "mostly concealed" mean? (2) Will the Thomas dicta hold-up? (3) Exactly what other factors can be used to justify a gun search? (Go to 28:40) Links & Resources People v. Thomas, 2019 IL App (1st) 170474 (March): (in dicta court suggests seeing a gun otherwise properly concealed does not establish probable cause or reasonable suspicion) Illinois Conceal Carry Law Illinois FOID Law Andrew Branca Law of Self Defense People v. Norals, 2019 IL App (1st) 173010-U (Rule 23 case, police see the outline of a gun through this skinny jeans) People v. Harris, 2018 IL App (1st) 151142-U (February) (Rule 23 case, very anoymous tip of person with a gun cannot be used to justify this stop and search) People v. Holmes, 2017 IL 120407 (July) (good faith exception says a stop and a search before the change in the law does not mean evidence has to be suppressed) Here's That Dicta From Thomas People v. Thomas, 2019 IL App (1st) 170474 (March): "We wish to emphasize that under the current legal landscape, police cannot simply assume a person who possesses a firearm outside the home is involved in criminal activity. Likewise, they cannot use a firearm in partial view, such as a semi-exposed gun protruding from the pant pocket of a person on a public street, alone as probable cause to arrest an individual for illegal possession without first identifying whether the individual has the necessary licenses." See Also You may also want to check out... Episode 609 - People v. Thomas, 2019 IL App (1st) 170474 (March) (Police see a man hand a gun to another man in dicta court states seeing a gun alone does not create basis for a stop.) Episode  387 – People v. Holmes, 2017 IL 120407 (July) (Before The Conceal & Carry Became Law Police Could Stop You If They Saw A Gun) Episode 601 – People v. Holmes, 2019 IL App (1st) 160987 (March)(police get a tip of man with a gun problem was the tip was completley anoymous) Episode 447 - In re Jarrell C., 2017 IL App (1st) 170932 (December) (holding your crotch is not indicative of carrying a gun)

People v. Clifton, 2019 IL App (1st) 151967 (April). Episode 633 (Duration 7:31) Lay witness testified about the details of the gun that he saw. Charges & Sentence Defendant was found guilty of armed robbery and sentenced to 35 years in prison (20 years for the underlying offense and 15 years for the mandatory firearm add-on). The Crime 2 men walked up to a group of 4 people (1 man & 3 women) and rob them. One man said “you know what this is, it’s a robbery” and then pointed a gun at them. The man pointed the gun as close as one inch from one of the victim’s face. The man took two phones from the victim’s pants pocket. The other man took items from the women. The men then got into a Jeep and drove away. Armed Robbery Armed robbery requires taking “property *** from the person or presence of another by the use of force or by threatening the imminent use of force” and doing so “armed with a firearm.” 720 ILCS 5/18-1(a) (definition of robbery); 720 ILCS 5/18-2(a)(2) (armed robbery). A violation of subsection (a)(2) carries a mandatory 15-year sentencing enhancement. 720 ILCS 5/18-2(b). Firearm Definition For the purposes of the armed robbery statute, we derive the definition of “firearm” from the FOID Card Act. 720 ILCS 5/2-7.5 (referring to 430 ILCS 65/1.1). The FOID Card Act defines “firearm” as “any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas” and exempts many types of guns including pneumatic guns, spring guns, paintball guns, BB guns, signal guns, and antique guns. 430 ILCS 65/1.1. Proof a brandished object constitutes a firearm can be established by the testimony of a single eyewitness. Wright, 2017 IL 119561, ¶ 76. We can rely on the eyewitness testimony of a single witness, but that testimony must provide sufficient facts to allow one to objectively conclude that the object used in the robbery meets the statutory definition of a firearm. Sufficiency Of The Evidence To Prove Armed Robbery See People v. Washington, 2012 IL 107993 and People v. Malone, 2012 IL App (1st) 110517. Before January 1, 2000, the armed robbery statute had one requirement: a defendant commits robbery while he or she carried, or was otherwise armed with, a dangerous weapon. See Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (amending 720 ILCS 5/18-2). The amendment left the requirement of a dangerous weapon in place but made separate categories allowing for sentencing enhancements when a defendant possesses or uses a “firearm” in the course of a robbery. Pub. Act 91-404, § 5 (eff. Jan. 1, 2000); see also 720 ILCS 5/18- 2(a)(1)-(4) (West 2012). See also People v. Ross, 229 Ill. 2d 255, 277 (2008). The decisions in Wright and Malone analyze the sufficiency of the evidence to prove armed robbery under the current statute. A different panel in this division called Ross into question in People v. Fields, 2017 IL App (1st) 110311-B, on which the State relies. We respectfully disagree and find that cases analyzing the preamendment armed robbery statute remain just as precedential after amendment. Under The Old Armed Robbery In Ross, our supreme court defined “dangerous weapon” broadly, allowing proof that the weapon used be either (i) Dangerous per se, as is a loaded gun; (ii) Not necessarily dangerous but actually used in a dangerous manner; or (iii) Not necessarily dangerous but capable of use in a dangerous manner. Under that expansive definition, the State need not prove that a gun was loaded and operable to be dangerous. Instead, the State could meet its burden on the “dangerous weapon” element by showing the gun capable of use as a club or a bludgeon. Under The New Armed Robbery By amending the armed robbery statute to require the presence of a “firearm,” the General Assembly narrowed the scope of the offense by virtue of the Criminal Code’s crossreference to the FOID Card Act’s stringent definition of firearms. The State needs to rely on more than the common sense notion that a firearm is dangerous because it is capable of being used dangerously; the State must prove that the object wielded during a robbery “is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2012). The legislature then struck the balance by automatically increasing a defendant’s sentence by 15 years when the State meets its heavy burden of proving the presence of a “firearm.” 720 ILCS 5/18-2(b) (West 2012). So the state has a higher burden but they get more out of it. Ross and Malone, and other cases interpreting the preamendment armed robbery statute, still apply. What has changed is what the state must prove. This Case Turning to this case we see this victim was very specific. He testified that the gun was black, a revolver, and either a .32 or .38 caliber. He had personally observed .32-caliber guns before. And, he testified that the gun was within one inch of his face. This was a high level of specificity like that in Wright. The witness testified about the color of the gun and explained that he had experience firing the exact type of gun he believed was used. Wright, 2017 IL 119561, ¶ 76. Plus, the witness felt the gun and described “something sharp” being pressed into his back. Id. All of his observations led him to be “100% sure” that the weapon was “an actual firearm.” Id. Looking at the objective evidence provided by the victim in this case compared to the testimony of the victim in Wright, we find sufficient evidence that the nature of the firearm was proven beyond a reasonable doubt. Do You Need A Gun To Prove The Existence of A Gun? Illinois courts hold that the State need not present physical evidence of a gun to establish the presence or use of a firearm. People v. Jackson, 2016 IL App (1st) 141448, ¶ 15 (citing Washington, 2012 IL 107993, ¶ 36). Absent some physical evidence, it seems almost impossible to prove that an item alleged to be a firearm meets the technical statutory definition unless fired. The FOID Card Act’s definition of “firearm” requires the object to expel a projectile “by the action of an explosion, expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2012). No lay witness would ever be able to testify to this feature unless the gun was fired or the witness somehow had an opportunity to examine the gun. As Clifton suggests, the act exempts BB guns and other guns that “expel[ ] a single globular projectile not exceeding .18 inch in diameter.” Id. Again, no lay witness would be able to confirm that the object brandished met this definition without examining the ammunition or seeing the weapon fired. As the court indicated in McLaurin, and as the facts establish here, armed robberies pose a pernicious possibility that an offender will use a firearm (or even an object that looks like one) to force compliance with the robbery. Technically No But… This court sustained the armed robbery without the gun. But there is a strong suggestion that if the gun evidence is light or whimsical the state may have a problem. The General Assembly has already accounted for that possibility with the aggravated robbery statute. Aggravated robbery involves taking property from the person or presence of another, “while indicating verbally or by his or her actions to the victim that he or she is presently armed with a firearm ***. This offense shall be applicable even though it is later determined that he or she had no firearm ***.” 720 ILCS 5/18-1(b)(1) (West 2012). The General Assembly has addressed concerns like those expressed in McLaurin by creating an offense punishing an offender who attempts to coerce compliance by implying he or she has a firearm. While precedent compels us to affirm defendants’s conviction, it appears the aggravated robbery statute more aptly describes this defendant’s conduct. The FOID Card Act contains highly technical definitions and exemptions for “firearms.” Those technical definitions have been imported wholesale into the Criminal Code for any offense that punishes the use or possession of a “firearm.” It appears the General Assembly has crafted a careful balance, requiring the State to prove the technical presence of a firearm but allowing a much greater punishment should they be successful. Holding We are troubled by the cases that allow for proof of a firearm with testimony that does not come close to describing the technical features of a firearm outlined in the FOID Card Act, but our supreme court has expressly approved of that type of testimony. Indeed, our supreme court has condoned convictions for armed robbery with far less specific testimony than is present here. So we affirm defendant’s conviction. See Also Episode 634 –People v. McLaurin, 2018 IL App (1st) 170258 (December) (officer testified about seeing a gun from 50 feet away) Illinois Rules Of Evidence Check out the Illinois Rules of Evidence Resource Page to learn more about Illinois Evidence. People v. McLaurin Both the majority and concurrence in People v. McLaurin, 2018 IL App (1st) 170258, provide assistance. In McLaurin, the criminal offense, armed habitual criminal, also requires proof that the defendant possessed a “firearm” as defined in the FOID Card Act. Id. ¶¶ 1, 20-21. The court found the evidence insufficient to prove the defendant’s possession of a “firearm” because the sole witness to see him with the gun, a police officer, testified that she saw what appeared to be a gun but could only provide details about color because all she observed was the handle and the barrel. Id. ¶ 26. The majority in McLaurin distinguished armed robbery cases on the ground that “the underlying offense is robbery” and, to prove robbery, “there is no requirement to prove that a firearm was used in the taking.” Id. ¶ 24. The majority, thus, found that use of a firearm during a robbery to be an “aggravating factor” and, as a result, the State had more leeway to prove the presence of