Case Law Quarterly

 

Illinois Prosecutor Services, LLC

Don Hays

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SEARCH AND SEIZURE QUARTERLY

JULY 2017

IN THIS ISSUE

  1. People v. Derrick Martin, 2017 IL App (1st) 143255, (1st Dist., June 12, 2017) Denial of a Motion to Suppress - - Affirmed. ISSUES: 1) SEARCH AND SEIZURE (Plain View): Did the conduct of the Officer in reaching in and drabbing a package off the inside doorframe of a house constitute a search? (Yes); 2) SEARCH AND SEIZURE (Expectation of Privacy): Did the defendant have an expectation of privacy concerning a substance found sitting on the inside doorframe of an outer door of this house? (Yes); 3) SEARCH AND SEIZURE (Plain View): Was the conduct of the Officer in reaching in and drabbing a package off the inside doorframe justified by the Plain View Doctrine? (No); 4) SEARCH AND SEIZURE (Exigent Circumstances): Did exigent circumstances justify the Officer’s act of reaching inside the house to grab contraband? (No); 5) SEARCH AND SEIZURE (Good Faith): Did the Officer act in good faith when he reached in and drabbed a package off the inside doorframe of the house? (No).
  2. People v. Markell Horton, 2017 IL App (1st) 142019, (1st Dist., March 31, 2017) Denial of Motion to Suppress - - Reversed and Remanded. (MODIFIED ON DENIAL OF REHEARING: June 6, 2017) ISSUES: 1) SEARCH AND SEIZURE (Probable Cause): Did the fact that the police saw the defendant in possession of a handgun justify his arrest? (No); 2) SEARCH AND SEIZURE (Good Faith): Did the police rely in good faith on a weapons statute that was later declared to be unconstitutional? (No); 3) SEARCH AND SEIZURE (Terry Stop): Did the fact that this defendant might have been carrying a firearm justify his detention? (No); 4) SEARCH AND SEIZURE (Hot Pursuit): Were the police justified in chasing this defendant into his home after spotting what they believed to be a handgun in his waistband? (No); 5) SEARCH AND SEIZURE (Flight): Did the suspect’s flight from the police justify their warrantless entry into his home? (No).
  3. People v. Ronald Petty, 2017 IL App (1st) 150641, (1st Dist., May 30, 2017) Retail Theft - - Affirmed. ISSUE: SEARCH AND SEIZURE (Plain View): Did the plain view doctrine justify the warrantless seizure of evidence in this case? (Yes).
  4. People v. Sebastian Rodriguez, 2017 IL App (1st) 141379, (1st Dist., May 8, 2017) First-Degree Murder - - Conviction Affirmed; Sentence Vacated; Case Remanded for Resentencing. ISSUE: SEARCH AND  SEIZURE (Probable Cause to Search): Did the police have sufficient probable cause to justify a search of the defendant’s house? (Yes).

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  1. People v. Isreal Veal, 2017 IL App (1st) 150500, (1st Dist., May 2, 2017) Denial of Motion to Suppress - - Affirmed. ISSUE: SEARCH AND SEIZURE (Detention): Was this defendant still detained after the police arrested the driver of the car in which this defendant was a passenger? (Yes).
  2. People v. Garrett Motzko, 2017 IL App (3rd) 160154, (3rd Dist., April 19, 2017) Grant of Motion to Suppress - Affirmed. ISSUE: SEARCH AND SEIZURE (Probable Cause): Did the police have sufficient probable cause to arrested the driver of a motorcycle who had been involved in an accident for DUI? (No).
  3. People v. Agmet Gocmen, 2017 IL App (3rd) 160025, (3rd Dist., March 29, 2017) Rescission of Summary Suspension - - Affirmed. ISSUE: SUMMARY SUSPENSION (Rescission): Did the fact that the arresting officer had no training with respect to identifying drugged drivers render the arrest of this defendant illegal? (Yes).
  4. People v. John F. West, 2017 IL App (3rd) 130802, (3rd Dist., March 23, 2017) Denial of Motion to Suppress - - Affirmed. ISSUE: SEARCH AND SEIZURE (Detention): Did the police unreasonable extend the duration of this traffic stop? (No).
  5. People v. Ivan Garcia, 2017 IL App (1st) 133398, (1st Dist., March 22, 2017) Aggravated Criminal Sexual Abuse - - Affirmed. ISSUES: 1) SEARCH AND SEIZURE (Franks): Did the trial court err in refusing to conduct a Franks hearing to test the validity of the police search warrant used in this case? (No); 2) SEARCH AND SEIZURE (Motion to Suppress): Did the trial court err in denying this defendant’s motion to suppress? (No).

CASE ANALYSIS

1.     People v. Derrick Martin, 2017 IL App (1st) 143255, (1st Dist., June 12, 2017) Denial of a Motion

to Suppress - - Affirmed.

ISSUES: 1) SEARCH AND SEIZURE (Plain View): Did the conduct of the Officer in reaching in and drabbing a package off the inside doorframe of a house constitute a search? (Yes); 2) SEARCH AND SEIZURE (Expectation of Privacy): Did the defendant have an expectation of privacy concerning a substance found sitting on the inside doorframe of an outer door of this house? (Yes); 3) SEARCH AND SEIZURE (Plain View): Was the conduct of the Officer in reaching in and drabbing a package off the inside doorframe justified by the Plain View Doctrine? (No); 4) SEARCH AND SEIZURE (Exigent Circumstances): Did exigent circumstances justify the Officer’s act of reaching inside the house to grab contraband? (No); 5) SEARCH AND SEIZURE (Good Faith): Did the Officer act in good faith when he reached in and drabbed a package off the inside doorframe of the house? (No).

APPEAL: The Appellate Court held that: (a) officer's actions, in reaching inside of outer doorway of house to seize blue bag that contained controlled substance, constituted warrantless search; (b) the officer's warrantless seizure of bag was not justified by plain view doctrine; and (c) no exigent circumstances justified officer's warrantless entry.

FACTS: Following a bench trial, the defendant was convicted of possession of a controlled substance and sentenced to five years in prison. On appeal, he argued the trial court erred in denying his motion to suppress evidence seized during a warrantless search.

RULE #1: To claim the protection of the Fourth Amendment, a person must have exhibited an actual, subjective expectation of privacy in the place searched or thing seized, and this expectation must be one that

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society is willing to recognize as reasonable. RULE #2: A police officer without a warrant may approach a home and knock because that is no more than any private citizen might do. RULE #3: When the government uses a physical intrusion to explore details of the home, the antiquity of the tools that they bring along is irrelevant to the Fourth Amendment analysis. RULE #4: Under the Fourth Amendment, any physical invasion of the home's structure by even a fraction of an inch is too much. RULE #5: The plain view doctrine supplements a prior valid reason for being present and permits the warrantless seizure of evidence in plain view because it does not constitute a general, intrusive invasion of a person's privacy. RULE #6: Three requirements must be met to apply the plain view doctrine: (1) the officers must be lawfully in a position from which they view the object; (2) the incriminating character of the object must be immediately apparent; and (3) the officers must have a lawful right of access to the object. RULE # 7: If police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object, i.e., if the incriminating character of the object is not immediately apparent, the plain view doctrine cannot justify the seizure. RULE #8: A warrantless search is permissible if it fits within a specifically established and well-delineated exception to the warrant requirement. RULE # 9: The People bear the burden to demonstrate that exigent circumstances authorized a warrantless entry. RULE #10: Relevant factors for determining whether exigent circumstances were present to effectuate an arrest include whether: (1) the crime under investigation was recently committed; (2) there was any deliberate or unjustified delay by the police during which time a warrant could have been obtained; (3) a grave offense was involved, particularly a crime of violence; (4) there was reasonable belief that the suspect was armed; (5) the police officers were acting on a clear showing of probable cause; (6) it was likely that the suspect would escape if he was not swiftly apprehended; (7) there was strong reason to believe that the suspect was in the premises; and (8) the nonconsensual entry was made peaceably. RULE #11: A consideration for determining whether exigent circumstances were present to justify a warrantless entry is whether the evidence would likely disappear without prompt action. RULE #12: In determining whether exigent circumstances authorized a warrantless entry, no list of factors is exhaustive and all factors are guidelines, rather than cardinal maxims to be applied rigidly in each case. RULE #13: The cornerstone of an exigency analysis into a warrantless entry is whether the police officers acted reasonably, a determination a court makes by considering the totality of the circumstances confronting the officers when the entry was made. RULE #14: If the destruction of narcotics is the primary motivation for the warrantless entry, the police must have particular reasons to believe that the evidence will be destroyed for exigent circumstances to arise. RULE #15: Exclusion is a last resort, and the exclusionary rule applies when the deterrent benefits outweigh its heavy costs. RULE #16: Where the particular circumstances show that police acted with an objectively reasonable good-faith belief that their conduct was lawful, or when their conduct involved only simple, isolated negligence, there is no illicit conduct to deter, and the exclusionary rule would not apply. RULE #17: One instance where evidence is not excluded despite a Fourth Amendment violation is when the police conduct a search in objectively reasonable reliance on binding appellate precedent; under this analysis, an officer's subjective awareness of the law is irrelevant.

FINDING #1: Police officer's actions, in reaching inside of outer doorway of house to seize blue bag that contained controlled substance, constituted warrantless search, and thus officer violated Fourth Amendment unless exception to warrant requirement applied; house, despite being a duplex, was owned and occupied by single family, house had “no trespassing” sign in window, outer door could be separately locked even though it led to two apartment doors, and officer reached inside door frame. FINDING # 2: Incriminating nature of blue bag, which contained controlled substance, was not immediately apparent, and thus police officer's warrantless seizure of bag was not justified by plain view doctrine; officer observed transaction between defendant and other individual, in which defendant retrieved item from bag, but officer could not identify that item as controlled substance until after bag was seized. FINDING #3: No exigent circumstances justified police officer's warrantless entry into house to seize blue bag that contained controlled substance; defendant was in custody at time of warrantless entry, any indication that other individual had access to bag and could have destroyed evidence was speculative, and there were multiple officers at scene who could have secured premises

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while warrant was obtained.

2.      People v. Markell Horton, 2017 IL App (1st) 142019, (1st Dist., March 31, 2017) Denial of Motion

to Suppress - - Reversed and Remanded. (MODIFIED ON DENIAL OF REHEARING: June 6, 2017)

ISSUES: 1) SEARCH AND SEIZURE (Probable Cause): Did the fact that the police saw the defendant in possession of a handgun justify his arrest? (No); 2) SEARCH AND SEIZURE (Good Faith): Did the police rely in good faith on a weapons statute that was later declared to be unconstitutional? (No); 3) SEARCH AND SEIZURE (Terry Stop): Did the fact that this defendant might have been carrying a firearm justify his detention? (No); 4) SEARCH AND SEIZURE (Hot Pursuit): Were the police justified in chasing this defendant into his home after spotting what they believed to be a handgun in his waistband? (No); 5) SEARCH AND SEIZURE (Flight): Did the suspect’s flight from the police justify their warrantless entry into his home? (No).

FACTS: The defendant was convicted of being an armed habitual criminal. He appealed and argued four issues: (i) the trial court improperly denied his motion to quash arrest and suppress evidence; (ii) the trial court improperly barred him from introducing registration and ownership evidence of the weapon, both before and after the People “opened the door” to the evidence; (iii) reasonable doubt; and (iv) ineffectiveness of trial counsel.

APPEAL: The Appellate Court held that: (a) after People v. Aguilar, 377 Ill. Dec. 405, 2 N.E.3d 321, declaring unconstitutional the aggravated unlawful use of a weapon (AUUW) statute banning one from carrying ready-to-use guns outside the home, the possible observation of a handgun is not in itself sufficient to provide probable cause for arrest; (b) the void ab initio doctrine precluded application of good faith exception to exclusionary rule; (c) the police officer did not have reasonable suspicion for Terry stop; and (d) Terry stop inside home could not be justified based on the hot pursuit doctrine.

RULE #1: Under the “exclusionary rule,” where evidence has been obtained in violation of the Fourth Amendment, the evidence may not be used against the defendant in a criminal proceeding. RULE #2: The purpose of the exclusionary rule is not to provide a constitutional right to the aggrieved party, but to deter improper conduct by agents of the government. RULE #3: The good-faith exception to the exclusionary rule recognizes the use of evidence where the officer acted in objectively reasonable reliance on a subsequently invalidated search warrant or a statute authorizing warrantless administrative searches ultimately found to violate the Fourth Amendment. RULE #4: The exclusionary rule does not necessarily bar evidence obtained by police in a search based on a violation of a law later invalidated as unconstitutional. RULE #5: The void ab initio doctrine precluded application of the good faith exception to exclusionary rule to evidence seized following an arrest under the portion of aggravated unlawful use of a weapon (AUUW) statute later held to be facially unconstitutional; the statute, having been declared facially invalid, was void ab initio. RULE #6: Justification for a Terry stop does not morph into probable cause to enter a citizen's house protected by the Fourth Amendment. RULE #7: Even potential destruction of drugs does not constitute exigent circumstances sufficient to justify a warrantless entry into a home to make an arrest unless the police officers have particular reasons to believe that the evidence will be destroyed. RULE #8: Entering a locked private home in pursuit of a citizen without a warrant or probable cause violates the Fourth Amendment and the search and seizure provision of the State Constitution.

FINDING #1: After People v. Aguilar, 377 Ill. Dec. 405, 2 N.E.3d 321, declaring unconstitutional the aggravated unlawful use of a weapon (AUUW) statute banning one from carrying ready-to-use guns outside the home, the possible observation of a handgun is not in itself, without any other evidence of a crime, sufficient to

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provide an officer with probable cause for arrest. 720 Ill. Comp. Stat. Ann. 5/24-1.6(a)(1), 5/24-1.6(a)(3)(A). FINDING #2: Police officer did not have reasonable suspicion for Terry stop, where officer merely saw a chrome metal object in defendant's waistband and had a hunch that defendant was carrying a firearm without a valid firearm owner identification card (FOID), even if defendant quickly stepped from the porch and into a house when he saw officer approach. 430 Ill. Comp. Stat. Ann. 65/0.01. FINDING #3: Officer who saw something chrome in defendant's waistband was not engaged in a “hot pursuit” when officer fortuitously picked up keys to a locked private home, unlocked the door, and went inside without a warrant over five or six minutes after defendant, who had stepped quickly from porch into home upon seeing officer approach, and therefore the Terry stop inside home could not be justified based on the hot pursuit doctrine, assuming that officer even had reasonable suspicion for the stop.

3.      People v. Ronald Petty, 2017 IL App (1st) 150641, (1st Dist., May 30, 2017) Retail Theft - -

Affirmed.

ISSUE: SEARCH AND SEIZURE (Plain View): Did the plain view doctrine justify the warrantless seizure of evidence in this case? (Yes).

FACTS: The defendant was convicted by a jury of retail theft (720 ILCS 5/16A-3(b)) and sentenced to two years' incarceration. He argued that the trial court should have granted his motion to quash arrest and suppress  uniform product code (UPC) labels seized from his car. The defendant also complained that the prosecutor argued facts not in evidence to the jury in closing; shifted the burden of proof to the defense; and commented on his post-arrest silence, failure to testify, and failure to present evidence in his defense.

APPEAL: The Appellate Court held that the warrantless seizure of uniform product code labels from defendant's car was lawful under plain view doctrine.

RULE #1: A warrantless search of an arrestee's car may be conducted only when the arrestee is unsecured and within reach of the passenger compartment or there is a likelihood of discovering offense-related evidence. RULE #2: The plain view doctrine allows the police to seize property without a warrant. RULE #3: The plain view doctrine requires that (1) the officer was lawfully in a position from which he observed the property, (2) the incriminating character of the property was immediately apparent, and (3) the officer had a lawful right of access to the property. RULE #4: The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. RULE #5: Probable cause for warrantless seizure does not require proof beyond a reasonable doubt. RULE #6: A mere hunch is insufficient to support warrantless seizure, but a police officer views the facts through the lens of his police experience and expertise and may draw inferences based on his own experience in deciding whether probable cause exists. RULE #7: Probable cause for search is a flexible, common-sense standard; it merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime, and it does not demand any showing that such a belief be correct or more likely true than false. RULE #8: A practical, nontechnical probability that incriminating evidence is involved is all that is required for probable cause for search. RULE #9: The plain error doctrine allows a reviewing court to remedy a clear or obvious error when (1) the evidence is so closely balanced that a jury's verdict may have resulted from the error and not the evidence or (2) the error is so serious that the defendant was denied a substantial right.

FINDING: Warrantless seizure of uniform product code (UPC) labels from floorboard of defendant's lawfully stopped car was lawful under plain view doctrine; police officers were experienced on tactical team investigating retail crimes, they had just interviewed store manager and viewed surveillance video, police

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officers could draw inference from totality of information available to them that UPC labels were related to recent theft, officers knew credit card transaction was in defendant's name and recognized defendant from surveillance video, store manager told officers that storewide thefts had occurred involving falsified bar codes, UPC barcodes were modus operandi in accomplishing theft, and otherwise innocuous UPC labels were incriminating because thefts that had occurred involved scanning of UPC labels on checkout.

  1. People v. Sebastian Rodriguez, 2017 IL App (1st) 141379, (1st Dist., May 8, 2017) First-Degree Murder - - Conviction Affirmed; Sentence Vacated; Case Remanded for Resentencing.

ISSUE: SEARCH AND SEIZURE (Probable Cause to Search): Did the police have sufficient probable cause to justify a search of the defendant’s house? (Yes).

FACTS: This fifteen-year-old defendant was charged with first degree murder in connection with the shooting  of his thirteen-year-old victim. At the time of the offense, 15-year-olds charged with first degree murder were  automatically excluded from juvenile court jurisdiction. Sebastian was accordingly tried, convicted, and  sentenced as an adult. Following his jury trial, the trial court sentenced the defendant to 50 years in prison: 25  years for the murder and 25 additional years pursuant to a mandatory firearm enhancement. In this direct  appeal, the defendant argued that (1) the trial court erroneously denied his motion to suppress evidence found during a search of his home, (2) expert testimony identifying a revolver found in his home as the murder  weapon was improperly admitted without a hearing to determine if it was based on generally accepted scientific  methodologies, and (3) the imposition of a 50-year sentence on an offender who was 15 years old at the time of his offense is unconstitutional.

APPEAL: The Appellate Court held that the complaint submitted by a detective, in support of a search warrant, was sufficient to establish probable cause to search the defendant's home.

RULE #1: Probable cause exists to search if facts set forth in an affidavit would cause a reasonable person to believe a crime has been committed and evidence of that crime is in the place to be searched; nexus must be established—directly or through reasonable inferences—between the criminal offense, the items to be seized, and the place to be searched. RULE #2: Although probable cause to arrest does not always equate to probable cause to search the arrestee's home, it is reasonable to infer, absent evidence to the contrary, that a person will generally keep possessions, including possessions that link that person to the crime, in his or her home.

FINDING: Complaint submitted by detective, in support of the search warrant, was sufficient to establish probable cause to search defendant's home; police sought, not only the murder weapon and a list of intended victims, but a specific article of clothing identified by three eyewitnesses as something that perpetrator was wearing at the time of the shooting, and record did not indicate that defendant, a teenager living in his father's home, had other places available to him to store his possessions.

  1. People v. Isreal Veal, 2017 IL App (1st) 150500, (1st Dist., May 2, 2017) Denial of Motion to Suppress - - Affirmed.

ISSUE: SEARCH AND SEIZURE (Detention): Was this defendant still detained after the police arrested the driver of the car in which this defendant was a passenger? (Yes).

FACTS: Following a 2014 bench trial, Veal was convicted of several counts arising out of his possession of a handgun, all of which merged into his armed habitual criminal conviction, for which he was sentenced to nine

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years' imprisonment. Veal's sole argument on appeal is that the trial court erroneously denied his pretrial motion to quash arrest and suppress evidence of the gun. Specifically, he argued that following the arrest of the driver,  the stop had concluded and he was free to leave. Thus, according to Veal, the order to step out of the car constituted a new police-citizen encounter requiring separate justification under the Fourth Amendment.

APPEAL: The Appellate Court held that traffic stop did not end when driver was placed under arrest, and thus officer could lawfully order defendant, who was passenger, out of vehicle pending completion of stop.

RULE #1: Ordinarily, a search and seizure is reasonable under the Fourth Amendment if supported by a warrant showing probable cause. RULE #2: A traffic stop is reasonable when the police have probable cause to believe that a traffic violation has occurred; a traffic stop may also be justified under the less exacting Terry standard of reasonable suspicion. RULE #3: Following a lawful traffic stop police may, as a matter of course, order the driver and any passengers out of the vehicle pending completion of the stop.

FINDING: Traffic stop did not end when driver was placed under arrest, and thus officer could lawfully order defendant, who was passenger, out of vehicle pending completion of stop; stop was prompted by fact that neither defendant nor other passenger was wearing seatbelt, which was petty offense subject to fine, such that arrest of driver did not convey that passengers were free to leave.

6.         People v. Garrett Motzko, 2017 IL App (3rd) 160154, (3rd Dist., April 19, 2017) Grant of Motion to

Suppress - Affirmed.

ISSUE: SEARCH AND SEIZURE (Probable Cause): Did the police have sufficient probable cause to arrested the driver of a motorcycle who had been involved in an accident for DUI? (No).

FACTS: The defendant was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11501(a)(2). Defendant filed a motion to quash arrest and suppress evidence, as well as a petition to rescind his statutory summary suspension. The trial court granted the defendant's motion to suppress. The People filed motions to reconsider, which the trial court denied. The People then appealed the trial court's order, granting defendant's motion to suppress. Thereafter, the court granted the defendant's petition to rescind. On appeal, the  People argued that the trial court (1) erred in granting the defendant's motion to suppress, (2) erred in denying its motions to reconsider, and (3) lacked subject matter jurisdiction to grant defendant's petition to rescind.

APPEAL: The Appellate Court held that the granting of the defendant's motion to suppress was not manifestly erroneous.

RULE #1: Probable cause to arrest exists when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime; such a determination must be based on the totality of the circumstances at the time of the arrest. RULE #2: Probable cause to arrest must rise to a level higher than mere suspicion. RULE #3: The odor of alcohol on a defendant's breath and his inadequate performance of a field sobriety test do not constitute reasonable grounds to believe that the defendant was driving under the influence. RULE #4: Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination. RULE #5: A defendant's consumption of alcohol and glassy bloodshot eyes are not enough to lead a reasonably cautious person to believe that the defendant had committed the crime of DUI. 625 Ill. Comp. Stat. Ann. § 5/11-501(a)(2).

FINDING: Trial court's granting of defendant's motion to suppress in driving under the influence of alcohol (DUI) prosecution was not manifestly erroneous, where arresting officer admitted that he could not tell how

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much defendant drank based on the “slight odor” of an alcoholic beverage on defendant's breath, and officer also stated Horizontal Gaze Nystagmus (HGN) testing was the most reliable indicator of whether someone has a blood alcohol level of .08, which showed that officer was not properly trained to understand and interpret the results of HGN testing. 625 Ill. Comp. Stat. Ann. § 5/11-501(a)(2).

  1. People v. Agmet Gocmen, 2017 IL App (3rd) 160025, (3rd Dist., March 29, 2017) Rescission of Summary Suspension - - Affirmed.

ISSUE: SUMMARY SUSPENSION (Rescission): Did the fact that the arresting officer had no training with respect to identifying drugged drivers render the arrest of this defendant illegal? (Yes).

FACTS: The defendant was charged with driving under the influence of drugs or combination of drugs (625  ILCS 5/11–501(a)(4)) and improper lane usage (625 ILCS 5/11–709). His driver's license was summarily suspended and he filed a petition to rescind statutory the summary suspension, which alleged the officer did not  have reasonable grounds to believe the defendant had been in control of the vehicle while under the influence of alcohol or drugs. The trial court granted the petition to rescind statutory summary suspension and the People  appealed, arguing that the trial court erred in granting the petition.

APPEAL: The Appellate Court held that police officer lacked probable cause to arrest motorist for DUI of drugs, and thus motorist was entitled to have the summary suspension rescinded.

RULE #1: Probable cause to arrest exists when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime; such a determination must be based on the totality of the circumstances. RULE #2: Though a layperson can testify regarding intoxication from alcohol, the effects of drugs are not commonly known, and training and experience are necessary to understand their effects on people.

FINDING: Police officer lacked probable cause to arrest motorist for driving under the influence (DUI) of drugs, and thus motorist was entitled to have the summary suspension of his driver's license that resulted from his being charged with that offense rescinded; officer had no training or experience in DUI of drugs, officer did not observe the physical symptoms reported by paramedics, such as sweating, pinpoint pupils, and an elevated heart rate, track mark on motorist's arm and syringe found in the vehicle were also connected with diabetes, which motorist told officer he had, and officer would not have been able to distinguish between a diabetic reaction and a reaction to drugs.

  1. People v. John F. West, 2017 IL App (3rd) 130802, (3rd Dist., March 23, 2017) Denial of Motion to Suppress - - Affirmed.

ISSUE: SEARCH AND SEIZURE (Detention): Did the police unreasonable extend the duration of this traffic stop? (No).

FACTS: The People charged this defendant with cannabis trafficking (720 ILCS 550/5.1(a)), unlawful possession with intent to deliver cannabis (720 ILCS 550/5(g)), and unlawful possession of cannabis (720 ILCS 550/4(g)). Before trial, the defendant filed a motion to suppress evidence. He alleged, inter alia, that the traffic stop, which led to police finding the evidence used against him, was unreasonably prolonged and his subsequent consent to search was involuntary. The trial court denied the defendant's motion and found him guilty of all charges. The trial court sentenced defendant to 12 years' imprisonment and imposed a $3000 drug assessment

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and an $87,000 street-value fine. The defendant appealed the trial court's ruling on his motion to suppress and the amount of the street-value fine. He further argued he was entitled to credit for time spent in presentence custody against his fines.

APPEAL: The Appellate Court held that search was valid since defendant gave his consent to search, not once, but twice, after officer explicitly told defendant he was free to leave following traffic stop.

RULE #1: Generally, valid traffic stop ends when the paperwork of the driver and any passengers has been returned to them and the purpose of the stop has been resolved, and there is no seizure, for Fourth Amendment purposes, if the motorist understands that he or she is free to leave and voluntarily prolongs the contact. RULE #2: Officer may convert a lawful traffic stop into a consensual encounter by returning the driver's documentation and informing the driver that he or she is free to leave.

FINDING: Search was valid since defendant gave his consent to search, not once, but twice, after officer explicitly told defendant he was free to leave following traffic stop.

9.         People v. Ivan Garcia, 2017 IL App (1st) 133398, (1st Dist., March 22, 2017) Aggravated Criminal

Sexual Abuse - - Affirmed.

ISSUES: 1) SEARCH AND SEIZURE (Franks): Did the trial court err in refusing to conduct a Franks hearing to test the validity of the police search warrant used in this case? (No); 2) SEARCH AND SEIZURE (Motion to Suppress): Did the trial court err in denying this defendant’s motion to suppress? (No).

FACTS: Following a jury trial, the defendant was found guilty of the aggravated criminal sexual abuse (720 ILCS 5/12-16(d)) of his 15-year-old niece, when he was nearly twice her age, and sentenced to a total of 20  years in prison. He appealed raising a number of contentions relating to the court's compliance with Illinois Supreme Court rules, the denial of his pretrial motions challenging the search warrant, his right to a lawyer and his right to self-representation, as well as the use of propensity evidence and other trial errors.

APPEAL: The Appellate Court held that: (a) the defendant failed to demonstrate police officer's reckless disregard of truth, as required to challenge warrant affidavit; (b) the police did not exceed scope of search warrant by searching lockbox and journal; and (c) the search and seizure of the contents of a lockbox was authorized under the plain view doctrine.

RULE #1: A detached judicial officer determines probable cause for issuance of a search warrant based on the information in the sworn statements or affidavits presented to the magistrate. RULE #2: To overcome the presumption of validity as to search warrant affidavit, a defendant must make a substantial preliminary showing that the warrant's affiant included a false statement in the affidavit, either knowingly and intentionally or with reckless disregard of the truth. RULE #3: When challenging a search warrant affidavit based on a false statement, the allegedly false statement must be necessary to the probable cause finding. RULE #4: The linchpin of the Franks procedure for challenging a search warrant affidavit is the requirement that the defendant make a substantial preliminary showing of a false statement. RULE #5: To establish a substantial showing of a false statement, as required to challenge a search warrant affidavit, the attack must not be conclusory and must be supported by more than a mere desire to cross-examine, while any allegations of deliberate falsehood or reckless disregard of the truth must be accompanied by an offer of proof; thus, the standard lies somewhere between mere denials and proof by a preponderance of the evidence. RULE #6: The deliberate falsity or reckless disregard of the truth required to challenge a search warrant affidavit applies only to the affiant and not to any nongovernmental informant. RULE #7: In looking for items named in a search warrant, the officers are

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free to search anywhere the object of the search could reasonably be expected to be found. RULE #8: Whether a particular search is reasonable depends on the facts and circumstances giving rise to the search and also the nature of the search itself. RULE #9: To be valid, a search warrant must state with particularity the place to be searched and the persons or things to be seized; this requirement is meant to safeguard against general search warrants. RULE #10: Determination of whether a particular search is reasonable must be made by balancing its intrusion on an individual's Fourth Amendment interests against the promotion of legitimate governmental interests. RULE #11: The proper approach for evaluating compliance with the Fourth Amendment is to objectively assess the officer's actions under the facts and circumstances before him at the time of a search, regardless of his underlying intent or motivation. RULE #12: Plain view doctrine, as exception to the warrant requirement, requires (1) that an object's incriminating character be immediately apparent and (2) that the officer have a lawful right of access to the object itself. RULE #13: The plain view doctrine, as exception to the warrant requirement, requires an officer to have probable cause to associate the evidence with criminal activity before he may invoke the doctrine to seize the evidence.

FINDING #1: Defendant failed to demonstrate that police officer recklessly disregarded the truth in officer's affidavit in support of a search warrant for defendant's residence, in which officer attested that a confidential informant purchased marijuana from defendant, and thus defendant failed to overcome the presumption of warrant affidavit's validity in prosecution for aggravated criminal sexual assault; informant, who was defendant's wife, did not provide indication to officer that informant was being untruthful, fact that wife had ulterior motive of gaining custody of her children did not directly support conclusion that her statements were false, and wife and officer appeared before a judge, thus providing a court with an opportunity to test wife's statements. FINDING #2: Subsequent affidavit of defendant's wife, claiming that no drug transaction occurred between wife, as confidential informant for police, and defendant and that police officer told wife to lie to judge who issued search warrant, was insufficient to demonstrate officer's reckless disregard of the truth in affidavit in support of search warrant, as required to overcome the presumption of warrant affidavit's validity in prosecution for aggravated criminal sexual assault; discrepancies between wife's original affidavit, which did not directly implicate officer's truthfulness, and the subsequent affidavit and fact that defendant obtained the subsequent affidavit after the hearing on defendant's motion challenging officer's affidavit suggested collusion between defendant and wife. FINDING #3: Affidavits submitted by defendant, defendant's mother, and defendant's neighbor were insufficient to demonstrate police officer's reckless disregard of the truth in his affidavit supporting a search warrant for defendant's residence, as required to overcome the presumption of warrant affidavit's validity in prosecution for aggravated criminal sexual assault; defendant and mother's affidavits lacked credibility for providing details they were unlikely to recall more than three years after the date in question, and neighbor's claim regarding a locked gate at apartment where officer attested that a confidential witness purchased drugs from defendant did not prove that officer knew the gate was locked or preclude possibility that informant had a key to gain entry. FINDING #4: Police did not exceed scope of search warrant for defendant's residence, which authorized seizure of drugs, drug paraphernalia, records of illegal drug transactions, money, and residency documents, by searching lockbox in which evidence of sex crimes was discovered and reviewing a journal found in the lockbox; lockbox could have contained evidence of drugs or drug records, and journal could have contained drug records. FINDING #5: Defendant waived on appeal his challenge of consent to search sexual abuse victim's lockbox provided by victim's mother, where defendant failed to raise his challenge at trial and in his opening appellate brief. FINDING #6: Search and seizure of contents of lockbox, in which evidence of sex crimes was discovered, during execution of search warrant of defendant's residence for evidence of drug crimes, was authorized under the plain view doctrine; police found the lockbox while legally searching for drugs, police had received a tip that defendant was having sexual relations with a minor in his family, and lockbox was hidden under a bed and contained photograph of defendant with a minor female within a journal, a vibrating ring, and a memory card.

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