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Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here?

The Traffic Stop

State trooper stops Defendant on the highway for crossing the yellow line and following too closely. About 20 or 30 minutes into it, the tickets are written out and the trooper still has Defendant’s DL.

“Get Out”

But before giving Defendant the paper work and returning his DL, the trooper asks him to get out his truck. Also, he had called for the drug dog before getting him out of the car.

Trooper tells defendant that he smelled cannabis in the vehicle. He asked defendant to explain why he smelled cannabis. Defendant says that there was probably an odor of cannabis on his clothes. He also admitted that he had a “bowl” in the center console.

Why Did the Stop Take So Long?

Oh yea,  defendant was on the terrorist watch list. Cop had to make several calls to the feds and was working on confirming Defendant’s identity. The trooper knew, before he gets him out of the car, that the feds cleared Defendant.

What They Find?

Prior to the dog arriving, the trooper searched the truck and found a smoking device and a tobacco package with raw cannabis inside. The dog alerted to the presence of drugs at the back of the vehicle. The troopers pried open the tailgate and found four duffel bags containing 5,505 grams of marijuana.

Did the Trooper Really Smell Anything?

The trooper who stops defendant testified that he could smell a faint odor of cannabis when he first approached the truck. On the squad video he says, “When I was up there talking to him I thought I could smell an odor of burnt cannabis, not raw cannabis. I’m not certain the way the wind was blowing and stuff. I’m not going to call him out on that, and I am going to question him about it at some point. I am not going to use that as probable cause to search the vehicle. I’m not 100% sure about that.”

A second trooper testified that he only smelled a masking agent. Said it smelled like freshly sprayed deodorant. This trooper also had two separate conversations with Defendant. Each time Defendant denied having cannabis in the truck (this was before the get him out the car and he finally admits to the pipe).

Law

A seizure that is lawful at its inception may become unlawful under the fourth amendment if –

(1) the duration of the stop is unreasonably prolonged, or
(2) the officer’s actions during the stop independently trigger the fourth amendment.

See Illinois v. Caballes, 543 U.S. 405, 407-08 (2005).

An investigative stop that is lawful at its inception must cease once reasonable suspicion dissipates, unless there is a separate Fourth Amendment justification to prolong the stop.  See People v. Baldwin, 388 Ill. App. 3d 1028, 1033 (2009). “Mere hunches and unparticularized suspicions are not enough to justify a broadening of the stop into an investigatory detention.” People v. Ruffin, 315 Ill. App. 3d 744, 748 (2000).

A routine traffic stop may not be used as a subterfuge to obtain other evidence based on an officer’s suspicion.People v. Koutsakis, 272 Ill. App. 3d 159, 164 (1995).

Where a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person had committed an offense, reliance on that information justifies a stop to check identification, to pose questions to the person or to detain the person briefly while attempting to obtain further information. See United States v. Hensley, 469 U.S. 221, 232 (1985); see also People v. Ewing, 377 Ill. App. 3d 585, 593-94 (2007) (Hensley  principles apply to communications sent through dispatch). Evidence recovered during the course of a bulletin stop is admissible if the stop is not significantly more intrusive than would  have been permitted by the issuing department. Hensley, 469 U.S. at 233.

Analysis

Prolonging the Stop Means Illegal Traffic Stop

The record establishes that the trooper waited for approximately 23 minutes before dispatch reported back to him the Defendant was not wanted by the feds. Rather than returning his DL and giving him the tickets, at that point, the trooper gets defendant out of the truck. All of this was done 30 minutes into the stop.

The stop lasted an additional 22 minutes after tickets are written. It seems clear that the troopers prolonged the stop in an effort to obtain incriminating information from defendant.

What About Smell of Weed?

While the smell of burnt cannabis may be sufficient in some cases, in this case the arresting officer failed to supply the articulable facts necessary to support a fourth amendment intrusion.

Trooper testified that he thought he smelled burnt cannabis, but he was not sure. His statements on the videotape of the stop were consistent with his vague statements at trial. On the videotape, the trooper told the dispatcher that he thought he smelled an odor of burnt cannabis but was uncertain because of the way the wind was blowing.

The second trooper did not testify that he thought the “masking agent” was a sign of contraband. Second trooper then asks Defendant directly if he has marijuana. Defendant says no. At that point, any reasonable suspicion that may have been generated by first trooper’s uncertain smell dissipated.

Holding

These facts support only a hunch or suspicion of illegal activity. They do not give rise to a reasonable and articulable suspicion that defendant was trafficking cannabis. Thus, beyond the delay pursuant to the terrorist watch list issue, the troopers did not have an independent articulable suspicion to prolong the stop. The continued detention of defendant was a violation of his constitutional rights.

Supreme Court Rules Right to Speedy Trial Ends at Guilty Verdict

The Supreme Court on Thursday unanimously ruled that the Constitution’s guarantee of a speedy trial does not protect people convicted of crimes from lengthy sentencing delays.

The case, Betterman v. Montana, No. 14-1457, concerned Brandon T. Betterman, who pleaded guilty to jumping bail in the spring of 2012. He spent the next 14 months in a Montana jail waiting to hear what his sentence would be.

He complained to the judge, saying the delay had put him on an “emotional roller coaster due to the anxiety and depression caused by the uncertainty.” In the summer of 2013, the judge finally sentenced him to seven years in prison, with four years suspended.

The long delay, Mr. Betterman said, had violated his Sixth Amendment right to a speedy trial.

Justice Ruth Bader Ginsburg, writing for the court, rejected the argument. There is a difference between trials, which adjudicate guilt, and sentencings, which determine punishment, she wrote.

“As a measure protecting the presumptively innocent, the speedy trial right — like other similarly aimed measures — loses force upon conviction,” Justice Ginsburg said.

She added that “the sole remedy for a violation of the speedy trial right” is dismissal of the charges, which “would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions.” The empty seat left by Justice Antonin Scalia’s death leaves the court with two basic options for cases left on the docket this term if the justices are deadlocked at 4 to 4.

Mr. Betterman had not sought outright dismissal of the case against him, suggesting instead that an appropriate remedy for the 14-month delay in his sentencing would be an equivalent reduction in his prison term. Justice Ginsburg rejected the possibility of “a flexible or tailored remedy.” A violation of the right to a speedy trial, she said, “demands termination of the prosecution.”

Nor did it matter, she wrote, that a vast majority of criminal prosecutions these days end with guilty pleas rather than trials, making sentencing proceedings more important. That “modern reality,” she wrote, “does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause.”

Justice Ginsburg did say that capital cases, in which the sentencing phase is often elaborate and crucial, may require a different speedy-trial analysis.

The court left open a different avenue to attack long sentencing delays.

Mr. Betterman, Justice Ginsburg wrote, “retains an interest in a sentencing proceeding that is fundamentally fair.” It was possible, she said, that he could have attacked the delay in his case as a violation of a different constitutional right, that of due process.

“But because Betterman advanced no due process claim here,” Justice Ginsburg wrote, “we express no opinion on how he might fare under that more pliable standard.”

In a concurrence, Justice Sonia Sotomayor sketched out a possible framework for deciding whether sentencing delays violate due process. In a second concurrence, Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., said that was premature.

“We have never decided whether the Due Process Clause creates an entitlement to a reasonably prompt sentencing hearing,” Justice Thomas wrote. “Today’s opinion leaves us free to decide the proper analytical framework to analyze such claims if and when the issue is properly before us.”

April 2016 Illinois Criminal Case List

April 2016 Illinois Criminal Case List DUI | Appeal Prosecutor on this aggravated DUI represented defendant when he was charged with his first DUI.​​​People v. Kibbons Is this a conflict of interest? Well the defense argued that his plea should be vacated because there was a per se conflict of interest on the part of the State’s Attorney, a violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution. However, the court did not reach the merits of the claim. The defendant did not file a notice of appeal within 30 days of the denial of the motion to reconsider his plea. Instead, he filed what he should have filed initially, that being a motion to vacate his guilty plea under Rule 604(d). While that motion was filed while the trial court still had jurisdiction, it was not a timely motion under Rule 606(b), and we have no discretion to forgive the defendant’s failure to comply with the rule. See People v. Salem, 2016 IL 118693, ¶ 19 (motion for a new trial, filed within 30 days of sentencing but not within 30 days of the verdict, was not a timely motion to extend the time to appeal under Rule 606(b); to hold otherwise would render the term “timely” in 606(b) meaningless). Since the notice of appeal was untimely, the court lacked lack jurisdiction over the appeal. Go to case. Sex Case | Other Cries Was it error for the judge to admit other crimes evidence from other patients?​People v. Arze Defendant was a family physician convicted of aggravated criminal sexual assault for forcibly having sexual intercourse with a patient during treatment. The trial judge observed that the women at issue were in the same age range and all had been diagnosed with depression, although the other crimes occurred during other types of treatments. Each incident occurred when the women were partially undressed. Two of the women testified to observing defendant’s erection during the incidents. In each case, defendant touched the vaginal area. The women each had said “no” or otherwise indicated the behavior was inappropriate. The incidents also occurred when defendant was in close proximity to the women on an examination table. In 1 Illinois, however, our legislature has chosen to provide a limited exception to this general rule of inadmissibility for other­crimes evidence intended to show the defendant’s propensity to commit crimes.” “If a defendant is tried on one of the enumerated sex offenses, section 115­7.3(b) of the Code [citation] allows the State to introduce evidence that the defendant also committed another of the specified sex offenses.” Our supreme court has upheld the constitutionality of section 115­7.3. In this case, all the victims had the same relationship to defendant, i.e., the doctor­patient relationship. The evidence demonstrated that the women were in the same age range and all had been diagnosed with depression, although the other crimes occurred during other treatments. Each incident occurred in defendant’s examination rooms, when the women were partially undressed. Two of the women testified to observing defendant’s erection during the incidents. In each case, defendant touched the vaginal area. The women each had said “no” or otherwise indicated the behavior was inappropriate. The incidents also occurred when defendant was in close proximity to the women who were on an examination table. The fact that this victim alleged forced sexual intercourse, while the two other crimes victims alleged lesser forms of sexual misconduct, is insufficient to conclude that the trial judge abused her discretion. Finally, the case lays the proper procedure for a court to follow when a defendant is asking for medical records of a victim. Go to case. Evidence | 115‐10 Statement | Sex Case Defendant is convicted on two counts of predatory criminal sexual assault based on the child’s testimony and her 115­10 statement. ​People v. Johnson The child testified that her father licked his fingers and inserted them into her private part. In the recorded statement she also said that he put his private part in her private part, but on the stand she only testified to the digital penetration. The 115­10 statement is substantive so defendant was properly convicted on both counts. In Crawford, the Court dispensed with the “amorphous notions of ‘reliability’ ” that governed the Roberts Court’s confrontation clause analysis. Instead, the Court held that, regardless of a statement’s reliability, the confrontation clause bars the admission of any out­of­court statement that is “testimonial,” unless (1) the statement’s declarant is unavailable and (2) the defendant was afforded a prior opportunity for cross examination. Therefore any case law before Crawford suggesting that 115­10 statements need to be narrowly construed are now rejected. Section 115­10 requires the trial court to “find[]” that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” 725 ILCS 5/115­ 10(b)(1). The statute does not require that those findings be made in writing, nor does it require those findings to contain any specific level of detail. The court merely tracked the language of the statute and that was found to be sufficient. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 2 Evidence | Other Crimes | Domestic Violence Case Other crimes of a domestic nature are admissible in a general crime that is motivated by domestic violence. ​People v. Nixon In this trial for aggravated discharge of a firearm and being an armed habitual criminal other crimes evidence of a domestic nature was admitted. The case involved defendant taking shots at the tires of the car of his ex girlfriend and mother to his two children. The victim had fled to Wisconsin and the state had jail phone calls indicating the defendant had something to do with the victim being unavailable for trial. Nonetheless, the State is allowed to admit evidence that defendant had shot her before and also is allowed to admit her hearsay statement of the incident where her tires were shot. Other­crimes evidence is admissible to prove propensity as provided in sections 115­7.3, 115­7.4, and 115­20 of the Code (725 ILCS 5/115­ 7.3, 115­7.4, 115­20 (West 2012)). See Ill. R. Evid. 404(b). The trial court also found that evidence of the 2006 shooting was admissible as propensity evidence pursuant to section 115­7.4 of the Code (725 ILCS 5/115­7.4 (West 2012)), which allows the admission of other­crimes evidence in domestic­violence cases. Section 103(3) of the Act defines “domestic violence” as “abuse.” 750 ILCS 60/103(3). “Abuse,” in turn, is defined as “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.” 750 ILCS 60/103(1). Contrary to defendant’s argument, the evidence surrounding the charged offenses establishes that the 2012 shooting constituted an act of domestic violence as that term is defined in the Act. First, the car shooting shooting constituted “physical abuse.” For purposes of section 115­7.4 of the Code (725 ILCS 5/115­7.4), “physical abuse” includes “knowing or reckless use of physical force” as well as “knowing or reckless conduct which creates an immediate risk of physical harm” (750 ILCS 60/103(14). The car shooting constituted knowing or reckless conduct creating an immediate risk of physical harm because the gun was fired in the direction of the house which had people in it. See People v. Garcia, 407 Ill. App. 3d 195, 201­02 (2011) (discussing harm created by act of firing bullets in the direction of an occupied building). Therefore, it constituted “physical abuse” as defined in the Act. Defendant’s conduct on the day of the shooting also constituted “harassment” as that term is defined in the Act. “Harassment” is “knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the [victim].” Here, the evidence presented at trial clearly established that defendant’s conduct in the hours leading to the car shooting subjected the victim to “harassment.” The evidence of the 2006 shooting established defendant’s continuing animosity toward her, his intent to harm her, and a motive—defendant’s desire to assert control over his relationship with her. Additionally, The doctrine of forfeiture by wrongdoing is a common­law doctrine. People v. Hanson, 238 Ill. 2d 74, 96 (2010); People v. Peterson, 2012 IL App (3d) 100514­B, ¶ 20. Under this doctrine, “one who obtains the absence of a witness by wrongdoing April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 3 forfeits the constitutional right to confrontation.” The Illinois Supreme Court has also recognized that the doctrine serves both as an exception to the hearsay rule and to extinguish confrontation claims. Illinois Rule of Evidence 804(b)(5) provides an exception to the rule against hearsay for “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Ill. R. Evid. 804(b)(5) When the State raises the doctrine of forfeiture by wrongdoing, it must prove both the wrongdoing and the intent to procure the unavailability of the declarant. The telephone conversations between defendant and others show a concerted effort on the part of defendant and others to ensure that the victim did not testify or appear in court. Go to case. Trial | Batson Challenge Trial court properly accepted race neutral reasons for excluding minority jury members. People v. Shaw Defendant is African American and was on trial for drug charges. The prosecution excluded two African Americans from the jury. The State said that when the question came up could you find the defendant guilty, there was a juror with a long pause, there was a look, the Court actually had to repeat the question. In regards, to the second African American the state recalled that it had initially sought to remove her for cause because she was friends with defendant’s cousins and nieces. In addition, the State noted her boyfriend had pending cases and was represented by the public defender’s office. The trial court found that defendant has not shown purposeful discrimination. The Court found that the prosecutor was credible and that the prosecutor’s demeanor did not show discriminatory intent, but merely showed strategic decisions. Furthermore, the reviewing court found the trial court was justified in finding that both jurors demonstrated demeanor that exhibited the basis for the strike by the prosecutor. Go to case. Trial | Sufficiency of the Evidence Out of control 2 year old rescues defendant from a conviction for contributing to the delinquency of a child. ​People v. Gharrett Defendant was at the SOS office so his newlywed could change her name. When his 2 year old step daughter ran into the back office, defendant followed to retrieve her. On his way out he snatches a bundle of cash and checks in a desk drawer. It’s all on video. He is convicted of 12 April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 4 years for burglary and 10 years for contributing to the delinquency of a child. A person commits contributing to the criminal delinquency of a child when they, a person 21 years of age or older, “with the intent to promote or facilitate the commission of an offense solicits, compels or directs a minor in the commission of the offense that is *** a felony when the minor is under the age of 17 years ***.” 720 ILCS 5/12C­30(b)(i). The video shows defendant leaning in to talk to the child. The state argued he told her to run toward the office, which allowed defendant to enter the office and commit a theft without raising the suspicions of the SOS employees. The kid was basically running around everywhere. Previously, she wandered all over the SOS building and, in particular, into the office without any prompting from defendant. Given that context, the evidence was insufficient to prove beyond a reasonable doubt that the child’s running to the office area was the result of defendant’s directing her to do so. Additionally, lay witness opinion testimony was admitted that allowed a witness to describe what was depicted in the video. Namely that defendant was carrying an object in his right hand that was “consistent with the pile or wad of cash and checks”. Go to case. Trial | Shackling | Sex Case | Other Crimes Shackling of defendant during bench trial in this child sex case leads to reversal.​People v. Williams In general, shackling the accused should be avoided. People v. Boose, 66 Ill. 2d 261, 265 (1977). A defendant may be shackled when there is reason to believe that he may try to escape or that he may pose a threat to the safety of people in the courtroom or if it is necessary to maintain order during the trial. Although the possibility of prejudicing the jury is a factor to be considered, the reasons for forbidding shackling are not limited to trials by jury. Here, there is no indication that the trial court conducted a Boose analysis before keeping the defendant in shackles during his trial. Thus, the defendant proved a due process violation which amounted to error by showing that he was required to be restrained without the court having first determined that it was necessary. Reversal is required because this was a close case and there is no indication that the the trial court conducted any type of a Boose hearing. In fact, the trial court suggests that the defendant was in shackles due to a blanket policy of the court. Since there was no evidence of any threats or disturbances in the record, the trial court made the statement that suggests a blanket policy, and there was no hearing for which we can remand for a more complete record, we reverse and remand for a new trial. Also, this child is allowed to testify in the judge’s chambers which could also have been a problem. 725 ILCS 5/115­11 permits a limited closure of a courtroom during the testimony of minors who are the victims of certain sex crimes. See also People v. Falaster, 173 Ill. 2d 220, 226 (1996). The trial court must make a April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 5 finding that anyone with an interest in the case would also be allowed to go into chambers for the testimony. Go to case. Defense | Compulsion No ineffective assistance of counsel for failing to instruct the jury on compulsion. ​People v. Orasco This was a murder and attempt murder conviction. It’s robbery in the victim’s home and they are executed to prevent them from calling the police. Female victim, however, does not die as the bullet remains lodged in her head. Defendant claimed in his police interview that the codefendant made him do it, by pointing the gun at him and threatening to kill him if he tried to run or told police. Trial strategy focused on claiming elements of accountability were not met then pivoted to an argument that defendant only acted out of fear for his own life. The affirmative defense of compulsion is available when a defendant has committed criminal acts under a reasonable belief that death or great bodily harm would be inflicted upon him if he refused to commit the acts. 720 ILCS 5/7­11. Here, counsel’s failure to tender an instruction did not prejudice defendant. The evidence did not establish that defendant committed the acts constituting any of his offenses under threat of great bodily harm or death. Further, any potential compulsion arose from the fault of defendant. Finally, Defendant failed to withdraw from the criminal enterprise when he had the perfect opportunity to do so. Go to case. Gun | Armed Habitual Conviction Attempted residential burglary is not a forcible felony that can be used to sustain an armed habitual criminal conviction. P​eople v. Sanderson The Code defines “forcible felony” as follows: “[T]reason, 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.” An unenumerated felony falls within the residual clause if the defendant “contemplated that the use of force or violence against an individual might be involved and [was] willing to use such force or violence.” (Emphasis in original.) People v. Belk, April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 6 203 Ill. 2d 187, 196 (2003). But the defendant need not actually inflict physical injury. Additionally,because every attempted murder involves a specific intent to cause death, the trier of fact who finds a person guilty of attempted murder must find that the guilty person contemplated the use of sufficient force to cause very serious injury, injury that can lead to death. Accordingly, the court held that every attempted murder qualifies as a forcible felony for purposes of the armed habitual criminal statute. A felony can qualify as a forcible felony, even if a crime does not have violent intent as an element, is if the State proves that under the particular facts of this case, the defendant contemplated the use of force and was willing to use it. Defendant’s conviction for attempted residential burglary is neither by definition nor by circumstance a forcible felony. None of the elements of attempted residential burglary requires that the defendant contemplate the use of violence. Second, there is no evidence that, under the particular facts of this case, Defendant contemplated the use of force. Go to case. Procedure | Conflict of Interest | Corrupt Judge Postconviction petition alleging corrupt trial judge is dismissed. ​People v. Gacho The trial judge conducting this murder trial actually was convicted of accepting bribes. However, defendant’s case was not a “fixed” case. The gist of the claim was that a codefendnat paid the judge $10,000 for a not guilty in his case. If true that meant the judge could not be fair in defendant’s case. Also, defendant said he could not raise $60,000 to pay the judge and because of that the judge could not have been fair. In sustaining the dismissal of this postconviction petition the reviewing court found that defendant failed to produce any direct evidence that the judge was, in fact, bribed by the codefendant. The trial attorney denied that he ever talked to defendant or his family about a $60,000 bribe & defendant’s story about the codefendant saying he paid $10,000 but got convicted anyway also does not add up. If the judge possessed a pecuniary interest in the outcome of the defendant’s trial, the defendant would be entitled to relief under the Act in the form of a new trial. Defendant did not prove this up sufficiently. The fact that the judge was bribed in some cases does not establish that he was not impartial in others. The judge’s pattern of bribe taking cannot alone support an inference that he engaged in compensatory bias in the defendant’s case. A defendant must still “who alleges that his trial judge’s corruption violated his right to a fair trial must establish (1) a ‘nexus’ between the judge’s corruption or criminal conduct in other cases and the judge’s conduct at [the defendant’s] trial; and (2) actual bias resulting from the judge’s extrajudicial conduct.” See the dissent for a strong counter argument. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 7 Procedure | Statute of Limitations Does the statute of limitations bar a charge of violation of bail bond when defendant is apprehended 18 years later?​People v. Casas No it doesn’t. Defendant was on the lamb for 18 years for a drug case. He came back and was arrested, sentenced to 20 years on the drug thing, and then charged with violation of his 1996 bail bond. 720 ILCS 5/32­10(a). Most felony offenses must be charged “within 3 years after the commission of the offense.” 720 ILCS 5/3­5. A continuing offense tolls the three­year limitations period as follows: “When an offense is based on a series of acts performed at different times, the period of limitation prescribed by this Article starts at the time when the last such act is committed.” 720 ILCS 5/3­8. According to the State, the limitations period was tolled when the offense was initially committed, and began to run once defendant was taken into custody. This court said that the legislature intended that, like escape, violation of bail bond would be treated as a continuing offense. Like escape, wherever else the bail­bond offender is, he is not where he is lawfully supposed to be; he has breached his lawful custody. People v. Grogan, 197 Ill. App. 3d 18 (1st Dist. 1990) was wrong. Any other ruling would give defendant an unmerited winful in that it would encourage a defendant “to remain in hiding until the three­year statute of limitations had expired” and the underlying case itself could be weakened. Go to case. Procedure | Speedy Trial What happens when defendant demands a trial within 120 days but continues to file motions? ​People v. Lilly Although, defendant was adamant about wanting his 120 days, he also was pretty persistent with his pro se motion filing. “For purposes of a speedy­trial question, a delay is charged to [a defendant] where his act in fact causes or contributes to the delay.” Further, our supreme court has held that where a defense attorney requests or agrees to a continuance on behalf of a defendant, the resulting delay is attributable to the defendant even if the defendant did not agree with the continuance. Here, a new public defender was appointed to represent defendant and he simply could not be ready for trial on the date that already had been set. Where a defendant fails to “promptly repudiate an attorney’s unauthorized act upon receiving knowledge of the same, the defendant effectively ratifies the act.” Further, an agreed continuance tolls the speedy trial period. An express agreement to a continuance on the record is an affirmative act attributable to the defendant. Defendant failed to promptly repudiate defense counsel’s actions. Indeed, defendant responded that it was “fine” when the trial court told defendant that the April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 8 motion for bond reduction would be heard the following week. Although defendant was saying he wanted his 120, he was still agreeing to continuances and requesting bond reduction hearings; these dates were all attributed to him. Any type of motion filed by defendant which eliminates the possibility that the case could immediately be set for a trial also constitutes an affirmative act of delay attributable to defendant. As defendant’s motion needed to be resolved, it eliminated the possibility that the case could immediately proceed to trial. Further, the court could not construe defendant’s subsequent statement that he wanted to “use [his] 120” as an objection to the continuance. Section 103­5(a) places the responsibility on a defendant to take affirmative action when he becomes aware that his trial is being delayed by objecting to the delay via a written demand for trial or an oral demand for trial on the record in order to prevent the speedy trial clock from tolling. “Defendant’s contention illustrates what the Cordell court sought to prevent, the use of section 103­5(a), not as a shield to protect defendant’s right to a speedy trial, but as a sword to defeat his conviction.” Go to case. Procedure | Krankel Hearing After remand, trial judge gets to the bottom of Defendant’s K​rankel​complaint even though trial counsel was in Mexico.​People v. Willis This case was sent back to the trial level so the judge could conduct a Krankel hearing, otherwise the murder conviction stands. Once set back, defendant told the judge his trial attorney was ineffective because he did not ask for a lesser included instruction on second degree murder or involuntary manslaughter. The trial court denied a new trial or an appointment of new counsel because he found this decision to be a matter of trial strategy. This time record showed that the court fully considered Defendant’s pro se claim of ineffective assistance by discussing the claim with him, and evaluating the claim based on its knowledge of defense counsel’s performance and the insufficiency of the claim on its face. Although, trial counsel filed a motion on his own ineffectiveness for not securing a witness. The defendant did not bring up that issue when the trial court finally gave him a chance to bring up his complaints. Thus, the trial judge met his Krankel obligations. Go to case. Sentencing | Life Sentence This discretionary life sentence for 17 year old defendant stands. ​People v. Walker April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 9 Defendant shot a cab driver in the back of the head with a sawed off shotgun in 1984. He was sentenced to a discretionary life sentence. Defendant’s 2013 postconviction petition was denied because the trial court found that the original trial court had considered defendant’s youth and other relevant factors before sentencing. The trial court also declined to extend Miller to defendant’s case, reasoning that Miller applies to mandatory life sentences, not discretionary ones. First, the petition was untimely. Reviewing court did not agree that this strand of argument has only been available to criminal defendants since the Supreme Court decided Miller. A juvenile’s relative lack of fault, in comparison to their adult counterpart, is not an intellectual breakthrough that came to light solely in the wake of Miller. Second, Miller only says no mandatory life sentences for juveniles. Trial courts must consider the youth’s age. This was a discretionary life sentence were the judge followed the mandates of Miller. The facts of the case matter. Leon Miller was a lookout during a robbery which he played no part in planning, had approximately one minute to contemplate his decision to participate, and never handled a gun in the course of the offense. He was “the least culpable offender imaginable.” This defendant was the triggerman. He planned his acts before deliberately putting them into action. The murder was horribly mutilating to the body of the victim, and was performed cold­bloodedly without any provocation, real or imagined, on the part of the victim. Go to case. Sentencing | Fines | Postconviction | 2‐1401 Petition Trial court vacated fines and fees after defendant files a civil 2­1401 petition. ​People v. Hible Here, both parties challenge the entry of fines by the circuit clerk for the first time on appeal. People v. Castleberry, 2015 IL 116916, does not prevent the court from vacating the fines imposed by the circuit clerk in this case. Fines imposed by the circuit clerk are still void. The clerk possesses no power or jurisdiction to render a judgment, but only to enter it under the express or implied order of the judge, in the exercise of judicial power. The judgment rendered by him is, therefore, unauthorized and void. While the circuit court has original jurisdiction, jurisdiction for sentencing is limited to the judge. The circuit clerk is prohibited from entering judgment. This court has held the clerk of court is a nonjudicial officer and has no power to impose sentences or levy fines. Therefore, under a section 2­1401 petition, void judgments can be challenged beyond the two­year time limit. A void judgment is one entered without jurisdiction and can be challenged at any time or in any court, either directly or collaterally. The reviewing court has jurisdiction to address this issue for the first time on appeal. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 10 Sentencing | Fines Reviewing court vacates more fines imposed by the circuit clerk.​People v. Strong Defendant got 4 years for DWLS. The trial court made no mention of fines, stating only that “judgment enters for costs of prosecution.” Similarly, the court made no mention of fines in its written sentencing order. Then, a fines and fees sheet featuring 20 monetary assessments imposed against defendant appeared in the record. $150 of the listed “assessments” are in fact fines that must be vacated. They were: a $20 Violent Crime Victims Assistance Fund assessment, a $50 court systems fee, a $10 arrestee’s medical costs fund assessment, a $15 State Police Operations Assistance Fund assessment, a $15 drug court fee, a $30 Children’s Advocacy Center assessment, and a $10 State Police Services Fund assessment. Each of the assessments identified by defendant is, indeed, a fine. See People v. Johnson, 2015 IL App (3d) 140364, (appendix). Fines imposed by circuit clerks are “void from their inception.” Go to case. Postconviction | Sex Case A strictly statutory error does not rise to the level of a constitutional error. ​People v. Rademacher In his postconviction petition defendant argued that the trial court deprived him of his constitutional right to a fair sentencing hearing when it considered in aggravation evidence unsupported by the record. Specifically, defendant contended that the crimes were committed in the parsonage, which does not constitute a “place of worship” under the aggravating factors statute. 730 ILCS 5/5­5­3.2(a)(11). He was a youth minister. This argument failed because it was not of sufficient constitutional dimension. There must be a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both. Any such error is one created solely by statute. Defendant here allowed his victims to spend the night at his house, which was property owned by the church. He proceeded to perform sexual acts on the victims in that house before taking them to church the next morning. That the trial court reasonably cited this pattern of behavior in aggravation does not offend either the federal or state constitution. Any purported error was only committed insofar as the facts of defendant’s case do not line up with the language and definitions set forth in subsection (a)(11) of the aggravating factors statute. 730 ILCS 5/5­5­3.2(a)(11). In other words, but for the existence of that statute, there could be no claim of error. Accordingly, the issue raised by defendant is one of statutory construction, and is not an issue of constitutional deprivation. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 11 Postconviction Dismissal of this postconviction petition was improper.​People v. Russell He is saying his postconviction counsel failed to provide him with a reasonable level of assistance in that he failed to amend one of his postconviction claims in order to avoid dismissal on the basis of waiver. Specifically, defendant argues that the claim that the trial court erred in admitting evidence of other crimes and prior bad acts should have been amended to claim that the waiver of the claim was due to ineffective assistance of appellate counsel. Rule 651(c) requires that appointed postconviction counsel make any amendments that are necessary for an adequate presentation of petitioner’s contentions. It is considered routine for postconviction counsel to amend the petition to allege ineffective assistance of counsel. The failure of postconviction counsel to make this routine amendment, which contributed directly to the dismissal of the petition without an evidentiary hearing, rebutted the presumption of reasonable assistance created by the filing of the certificate of compliance with Rule 651(c). Further, a defendant is not required to make a positive showing that his counsel’s failure to comply with Rule 651(c) caused prejudice. People v. Ross, 2015 IL App (3d) 130077, ¶ 15. Instead, where postconviction counsel failed to fulfill the duties of Rule 651(c), remand is required, regardless of whether the claims raised in the petition had merit. Postconviction counsel’s noncompliance with Rule 651(c) may not be excused on the basis of harmless error. Dismissal of petition is reversed and Defendant is allowed new counsel. Go to case. Postconviction Trial court was correct to dismiss the 2­1401 petition. P​eople v. Rolfe The proof of service, attached to his petition, states only that it was placed the prison mail system to be mailed to the clerk of the circuit court. The proof of service says nothing, one way or the other, about serving the petition on the State. He argues the petition is unripe for adjudication until 30 days pass after service of the petition on the State pursuant to Illinois Supreme Court Rule 105, and he represents he has not yet served the petition on the State. The supreme court explained that, as the appellant, the defendant “ha[d] the burden to present a sufficiently complete record such that the court of review [could] determine whether there was the error claimed by the appellant.” Without a record affirmatively showing the claimed error, a April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 12 court of review would presume the trial court followed the law. “To serve as a basis for [the] defendant’s contention of error, [the proof of service had to] affirmatively establish that [the] defendant mailed his petition via some means other than certified or registered mail.” It did not do so, so this dismissal was proper. See People v. Carter, 2015 IL 117709. The silence of the record is not the affirmative showing of error required of an appellant. Defendant never asked the trial court to reconsider its decision on the ground that he had not yet served the State. See 735 ILCS 5/2­1203(a). Any section 2­1401 petitioner who seeks to use, on appeal, his own error, by way of allegedly defective service, in an effort to gain reversal of a circuit court’s sua sponte dismissal of his or her petition on the merits, must affirmatively demonstrate the error via proceedings of record in the circuit court. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 13

Illinois Supreme Court released 4 criminal law cases for March 2016.

 

Here are the top 13 criminal law cases from the Illinois court system for March 2016. The first 4 are from the Illinois Supreme Court. Number 4 was a victory for the defense at the lower level and the Illinois Supreme Court had something to say about that.

  1.  People v. Burns
    The “no-nights visits” rule is affirmed, can’t bring the sniffer dog to your front step for a little sniff action.
  2. People v. Bradford
    Prosecution no longer allowed to overcharge an ordinary retail theft to a burglary.
  3. People v. Clark
    Aggravated vehicular hijacking and armed robbery without a firearm are not lesser-included offenses of aggravated vehicular hijacking and armed robbery with a firearm.
  4. People v. Timmsen
    Apparently, the police can stop you for trying to legally avoid a roadblock.
  5. People v. Abram
    Officers approach defendant who was sitting in his car he then, to say the least, ensues in outright flight.
  6. People v. Smith
    This trial judge was overruled; there is nothing unconstitutional about requesting citizen’s to roll up their sleeves.
  7. People v. Thompson
    Some of the State’s remarks relied on questionable advocacy, but did not rise to the level of clear and obvious error.
  8. People v. Meuris
    In a leaving the scene of an accident prosecution the State must not only prove that Defendant knew he was involved in an accident but also that another person was involved.
  9. People v. Weinke
    Reviewing court says ASA exaggerated the severity of victim’s condition and misled the court as to the source and timing of her information in order to pressure the court into granting a quickie deposition.
  10. People v. Tayborn
    Trial counsel was ineffective for not challenging defendant’s confession given without Miranda warnings.
  11. People v. Little
    Cigarette break is not a sufficient amount of time to remove the taint of the original Miranda violation.
  12. People v. Gray
    These drug officers were themselves charged with distributing narcotics and Defendant was not told about the investigation before he plead guilty to his own drug charges.
  13. People v. Fulton
    In a charge of armed habitual criminal the same conviction can be used as one of the predicate offenses as well the predicate to the UUW Felony conviction that may be being used.

his is what the Illinois court system was up to in February of 2016.

This is what the Illinois court system was up to in February of 2016. Here are the 9 best and worst cases. The last one is the one the prosecution doesn’t want you to know about.

  1. People v. Boston
    Sloppy grand jury work by State’s Attorney does not prejudice defendant. Go to case.
  2. People v. Ligon
    Many objects can qualify as dangerous weapons for purposes of aggravated vehicular hijacking, but not as to armed violence.  In other other words, list of bludgeons is greater for AVH and smaller for armed violence. Go to case.
  3. People v. Zayed
    Smell of cannabis does not give this officer a free pass to search this passenger because the officer crossed the line by whipping out the defendant’s penis and essentially conducting an unreasonable strip search.  Go to case.
  4. People v. Jarvis
    The visual examination of defendant’s buttocks might have exposed defendant’s anus. Nonetheless, any search for the “person” authorizes a strip search. Go to case.
  5. People v. Little
    This DWLR conviction stands because the police officer didn’t need proof of every element of the crime he was investigating. The stop with limited information was good. Go to case.
  6. People v. Buschauer
    The trial court’s finding was against the manifest weight of the evidence in that a reasonable person in would have felt free to leave at any point during the interrogation. Trial court just can’t ignore the factors that weigh against coercion. Go to case.
  7. People v. Harrison
    This force blood draw was not suppressed because it was done before the McNeely decision and binding precedent was in place. Good faith exception applies. Go to case.
  8. People v. Moore
    Lost photo arrays were not done in bad faith, so no due process violation occurred. The proper remedy for this discovery violation was to grant Civil Jury Instruction 5.01. Go to case.
  9. People v. Nibbe
    Second degree murder conviction is vacated outright because a blow with a bare hand is not ordinarily contemplated to cause death.  Go to case.
  10. People v. Pmulamasaka
    This rape is overturned, in large part, because the State committed and the trial judge allowed gross prosecutorial misconduct. Among the list of error committed by the prosecution two stand out. He repeatedly argued the victim was mentally handicapped when there was no such evidence, and he sat in the witness box during closing argument. Go to case.

Couple seek to have convictions thrown out, cite corrupt Chicago cop

Couple seek to have convictions thrown out, cite corrupt Chicago cop

Ben Baker had long been a thorn in the side of corrupt Chicago police Sgt. Ronald Watts, who framed the part-time drug dealer on a narcotics charge in retaliation for refusing to pay a protection payoff of $1,000, court records show.

While Baker was on bond awaiting trial in December 2005, he and his wife, Clarissa Glenn, were stopped by Watts and one of his team members. Once again, the officers claimed they found a bag of heroin in Baker’s car and tagged the couple with major felony drug charges, according to the court records.

Faced with up to 15 years in prison and frightened that their young children would be left without parents, the couple copped deals with prosecutors in order to spare Glenn from prison. Baker, though, had an additional two years tacked on to his sentence for the other drug case — a total of 14 years behind bars.

Now Baker and Glenn are seeking to have those guilty pleas thrown out, claiming in a court filing last week that Watts had planted the heroin — this time as retribution for blowing the whistle on him. Watts had been tipped off that Baker had gone to the Chicago police internal affairs division about his earlier shakedown, records show.

To buttress their claim, the couple has produced court records that show the judge who took their guilty pleas in September 2006 was already aware that Watts’ crew was under investigation, according to the petition filed in Cook County Criminal Court.

In fact, Judge Michael Toomin told the couple that if the allegations were ever proved, they could come back to court and he would gladly throw out their cases.

The court filing marks the latest fallout over the corrupt squad led by Watts, who in 2012 was charged along with one of his underlings, Officer Kallatt Mohammed, with shaking down a drug courier who turned out to be an FBI informant. Both were convicted and sentenced to federal prison.

Baker was freed in January after serving more than a decade of his 14-year sentence. Cook County prosecutors agreed to drop the original drug charge against him after his lawyer, Joshua Tepfer, revealed dozens of pages of court and law enforcement records showing that police internal affairs had been aware as far back as the late 1990s of corruption allegations involving Watts’ team — yet failed to take them off the street.

At the time of Baker’s arrest, Watts and his entire crew also were the target of an ongoing FBI investigation, according to records uncovered by Tepfer, of the Exoneration Project at the University of Chicago Law School. One FBI report from September 2004 showed that an informant had told federal agents that Watts and other officers were routinely shaking down drug dealers for thousands of dollars in cash in exchange for police protection at the Ida B. Wells public housing complex.

But it wasn’t until five years later that agents were able to build a criminal case against Watts and Mohammed, based in part on the undercover work of two whistleblower officers, Shannon Spalding and Daniel Echeverria.

Tepfer told the Tribune on Friday that the latest filing shows how Watts and his crew were able to terrorize a community for years with their illegal schemes, using their police powers to keep the largely poor and vulnerable people who lived in Ida B. Wells in line.

“These cases were brought by vindictive and corrupt police officers who were framing individuals for things that they did not do,” Tepfer said. “(Baker and Glenn) are likely just the tip of the iceberg when it comes to victims of the decadelong criminal enterprise headed by Sgt. Watts.”

The experience was particularly rough on Glenn, a churchgoing mother of three who had never been arrested before and has not been since, according to her lawyer, Jonathan Brayman.

“Every step of the way, Clarissa has told anyone who would listen that she and Ben were innocent,” he said.

According to the petition, Baker and Glenn were stopped by Watts and Officer Alvin Jones on Dec. 11, 2005. Jones claimed in police reports that as he walked up to the car he saw Glenn hand a clear plastic bag filled with heroin to Baker, who put it in the driver’s-side console.

But Baker and Glenn claimed Watts had pulled the bag out of his sleeve and placed it in the car after a search had turned up no drugs. Back at the Wentworth District police station, Jones and several other members of Watts’ team typed up a false report, adding officers as witnesses who weren’t even at the scene, the couple alleged.

Before the couple pleaded guilty, Judge Toomin acknowledged in court that he had been shown reports that indicated Watts’ crew had been under investigation by internal affairs and that a prosecutor with the state’s attorney’s office’s public integrity unit was involved. But there had been no concrete evidence of wrongdoing and no move by prosecutors to drop the charges, so the judge said he couldn’t do anything with the information, according to a transcript.

“Let me say this to both of you,” Toomin told Baker and Glenn, according to a transcript. “There has not been sufficient showing to me that these are renegade police officers, that they are bad police, that they are outlaws.”

But, Toomin said, “police officers do get charged with doing things that are wrong, breaking the law.”

“If that should happen here in this case, I would have no hesitation,” the judge said. “I would toss out these convictions.”

KENTUCKY SENATE PASSES GOP BILL ALLOWING DISCRIMINATION AGAINST INTERRACIAL COUPLES

KENTUCKY SENATE PASSES GOP BILL ALLOWING DISCRIMINATION AGAINST INTERRACIAL COUPLES

Despite being legal in the United States since 1967, Kentucky Republicans are trying to turn back the clock on interracial marriage by allowing discrimination against interracial couples.

A bill moving forward in the Kentucky Senate would give private businesses and public institutions the right to discriminate against basically anyone they want to as long as they hide behind their Bibles when they do it.

In other words, interracial couples, Muslims, atheists, and gay people can be denied services by businesses and the government for religious reasons even though federal law explicitly forbids discrimination. While the bill does not expressly mention these groups, it is so broad that it might as well.

According to SB180:

‘Protected activities’ means actions by people commissioned, employed, hired, retained, or otherwise used by the public or the government to provide customized, artistic, expressive, creative, ministerial, or spiritual goods or services, or judgments, attestations, or other commissions that involve protected rights;
‘Protected activity provider’ means a person who provides protected activities; and
‘Protected rights’ means the rights of persons to be free from governmental actions that impair, impede, infringe upon, or otherwise restrict the exercise of any right guaranteed by the United States Constitution or the Constitution of Kentucky, including but not limited to a person’s right of conscience, freedom of religion, freedom of speech, freedom of the press, and right to peaceable assembly.

The bill even denies those who are discriminated against the ability to sue in court, which makes it even more clear that Republicans want to turn Kentucky into a theocracy where civil justice and civil rights only belong to conservative “Christians.”

It hasn’t passed yet, but considering the Senate and the House are controlled by Republicans, and Tea Party nitwit Matt Bevin is the Governor, it’s only a matter of time before this bill becomes law and drags Kentucky back to the 1950s.