UNITED STATES & ILLINOIS SUPREME COURT CRIMINAL LAW UPDATE

Transcription

1 UNITED STATES & ILLINOIS SUPREME COURT CRIMINAL LAW UPDATE By: Justice Patrick J. Quinn

2 UNITED STATES SUPREME COURT CASES SEARCH & SEIZURE: BLOOD DRAW BASED ON D.U.I. Missouri v. McNeely, No (April 17, 2013). The following is taken from the syllabus. Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely's BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely's blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U.S. 757, in which this Court upheld a DWI suspect's warrantless blood test where the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence.' Id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely's right to be free from unreasonable searches of his person. Held: The judgment is affirmed. The court concluded that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Pp. 4-13, (a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see e.g., United States v. Robinson, 414 U.S. 218, 224, applies here, where the search involved a compelled physical intrusion beneath McNelly's skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception "applies when ' "the exigencies of the situation" make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.' " Kentucky v. King, 563 U.S.,. This Court looks to the totality of circumstances in determining whether an exigency exists. See Brigham City v. Stuart, 547 U.S. 398, 406. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene. Pp (b) The State nonetheless seeks a per se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. Though a person's blood alcohol 1

3 level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456. Circumstances may make obtaining a warrant impractical such that the alcohol's dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the "considerable overgeneralization" that a per se rule would reflect. Richards v. Wisconsin, 520 U.S. 385, 393. Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U.S. 291, 296, BAC evidence naturally dissipates in a gradual and relatively predictable manner. In Illinois, 625 ILCS 5/ , Chemical and other tests, sets out the requirements the State must meet for the results of blood tests taken at the request of a law enforcement officer to be admissible at trial. 625 ILCS 5/ , Admissibility of chemical tests of blood or urine conducted in the regular course of providing emergency medical treatment, sets out the requirements the State must meet for blood test results which arise out of medical treatment to be admissible at trial (c)(2) provides: "Notwithstanding any ability to refuse under the Code to submit to these tests or any ability to revoke the implied consent to these tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in actual physical control of a person under the influence of alcohol, other drug or drugs, *** has caused the death or personal injury to another, the law enforcement officer shall request, and that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests of his or her blood, breath or urine for the purpose of determining the alcohol content thereof or the presence of any other drug or combination of both." In People v. Jones, 214 Ill. 2d 187 (2005), the defendant driver was involved in a car accident which did not result in the death or personal injury of another. The defendant was taken to a hospital at his request and the hospital did not request blood or urine samples for defendant's medical treatment. Defendant objected to the taking of samples, but he also said he would not physically resist their collection. Defendant provided a urine sample and a hospital phlebotomist obtained a blood sample at the request of the police. The samples were then analyzed for alcohol and drug content. The circuit court suppressed the test results and the appellate court affirmed the suppression. The supreme court reversed the order of suppression. The court first noted that prior to the enactment of section (c)(2), "nonconsensual chemical testing was permissible in all DUI situations, not merely those involving death or personal injury." Jones, 214 Ill. 2d at 195. The court then considered the language in section (c) and held that it did not "alter[] the settled law of this state." Jones, 214 Ill. 2d at 200. The court continued: "For purposes of clarification, our holding in this case does not give law enforcement officers unbridled authority to order and conduct chemical tests. We do not suggest that a DUI arrestee's lack of a right to refuse chemical testing under section (c)(2) permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples ***. Thus, while the circumstances surrounding defendant's DUI arrest did not involve death or personal injury, and 2

4 the chemical tests of defendant's blood and urine were performed over defendant's objection, the results of defendant's chemical tests should not have been suppressed." Jones, 214 Ill. 2d at SEARCH & SEIZURE: CANINE SNIFF FROM FRONT PORCH Florida v. Jardines, No (March 26, 2013). The following is form the syllabus. Police took a drug-sniffing dog to Jardines' front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court's decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause. Held: The investigation of Jardines' home was a "search" within the meaning of the Fourth Amendment. Pp (a) When "the Government obtains information by physically intruding" on persons, houses, papers, or effects, "a 'search' within the original meaning of the Fourth Amendment" has undoubtedly occurred." United States v. Jones, 565 U.S.,, n. 3. Pp (b) At the Fourth Amendment's "very core" stands "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 505, 511. The area "immediately surrounding and associated with the home" the curtilage is "part of the home itself for Fourth Amendment purposes." Oliver v. United States, 466 U.S. 170, 180. The officers entered the curtilage here: The front porch is the classic example of an area "to which the activity of home life extends." Id., at 182, n. 12. Pp (c) The officers' entry was not explicitly or implicitly invited. Officers need not "shield their eyes" when passing by a home "on public thoroughfares," California v. Ciraolo, 476 U.S. 207, 213, but "no man can set his foot upon his neighbour's close without his leave." A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is "no more than any private citizen might do." Kentucky v. King, 563 U.S.,. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp PROBABLE CAUSE FOR AUTO SEARCH BY CANINE Florida v. Harris, No (February 19, 2013). Harris was stopped by police while driving a truck. Harris had an open beer can. Harris refused a police request for permission to search his vehicle. The police then had a dog sniff the outside of the truck. The dog alerted at the driver's-side door handle. Ingredients for meth were found in the door. The Florida Supreme Court suppressed the drugs, holding that the State failed to maintain records as to how often the dog in question had falsely alerted. The Supreme Court reversed the Florida Supreme Court. "The question - similar to every inquiry into probable cause - is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, 3

5 would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime." Courts look at the totality of the circumstances when evaluating probable cause. "We have rejected rigid rules, bright-line tests and mechanistic inquiries in favor of a more flexible, all-things-considered approach." The Court criticized the Florida Supreme Court's "strict evidentiary checklist." Absent evidence to the contrary, the state can show a dog's reliability with evidence that the canine has been certified by a bonafide organization or has completed a proficiency testing program. SEARCH WARRANT - DETENTION OF OCCUPANT Bailey v. United States, No (February 19, 2013). Police were preparing to execute a search warrant on an apartment to look for a handgun. Two officers who were watching the apartment saw the defendant and another man leave the area of the apartment. The police stopped the men as they drove about a mile from the apartment. They recovered a key from the defendant, who initially admitted living in the apartment. The police took both men back to the apartment. A search of the apartment turned up a gun and drugs. Defendant filed a motion to suppress the key and his statements. The district court and the Court of Appeals affirmed. The Supreme Court reversed and remanded for the Court of Appeals to consider the district court's finding that the police stop of defendant was a valid Terry stop. The Court considered the holding in Michigan v. Summers, 452 U.S. 692 (1981), which allowed detention of an individual walking down the front stairs of a home being searched. Summers had cited three reasons justifying the seizure of a person incident to execution of a search warrant: officer safety, facilitating the completion of the search, and preventing flight. Those reasons don't have the same force when the occupant of the premises is beyond the immediate vicinity of the premises to be searched. In determining "immediate vicinity" "courts can consider a number of factors *** including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant's location, and other relevant factors." If the occupant is not in the immediate vicinity, the police cannot rely on Summers and must have probable cause based on other factors. INVOCATION OF RIGHT TO REMAIN SILENT Salinas v. Texas, No (June 17, 2013). The following is from the syllabus Salinas, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer's questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At defendant's murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution's use of his silence in its case in chief violated the Fifth Amendment. The Supreme Court concluded that petitioner's Fifth Amendment claim failed because he did not expressly invoke the privilege in response to the officer's question. (a) To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who "desires the protection of the privilege...must claim it" at 4

6 the time he relies on it. Minnesota v. Murphy, 465 U.S. 420, 427 (1984). This Court has recognized two exceptions to that requirement. First, a criminal defendant need not take the stand and assert the privilege at his own trial. Griffin v. California, 380 U.S. 609, (1965). Petitioner's silence falls outside this exception because he had no comparable unqualified right not to speak during his police interview. Second, a witness' failure to invoke the privilege against self-incrimination must be excused where governmental coercion makes his forfeiture of the privilege involuntary. See e.g., Miranda v. Arizona, 384 U.S. 436, (1966) and n. 37. Petitioner cannot benefit from this principle because it is undisputed that he agreed to accompany the officers to the station and was free to leave at any time. (b) Petitioner seeks a third exception to the express invocation requirement for cases where the witness chooses to stand mute rather than give an answer that officials suspect would be incriminating, but this Court's cases all but foreclose that argument. A defendant normally does not invoke the privilege by remaining silent. See Roberts v. United States, 445 U.S. 552, 560 (1980). And the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. See Murphy, supra, at For the same reasons that neither a witness' silence nor official suspicion is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege they do not do so together. The proposed exception also would be difficult to reconcile with Berghuis v. Thompkins, 560 U.S. 370 (2010), where this Court held in the closely related context of post-miranda silence that a defendant failed to invoke his right to cut off police questioning when he remained silent for 2 hours and 45 minutes. Petitioner claims that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case like his, but such silence is "insolubly ambiguous." See Doyle v. Ohio, 426 U.S. 610, 617 (1976). To be sure, petitioner might have declined to answer the officer's question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner also suggests that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his "right to remain silent." But the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself," not an unqualified "right to remain silent." In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. Murphy, 465 U.S., at (c) Petitioner's argument that applying the express invocation requirement in this context will be unworkable is also unpersuasive. The Court has long required defendants to assert the privilege in order to subsequently benefit from it, and this rule has not proved difficult to apply in practice. In People v. Oaks, 169 Ill. 2d 409, 453 (1996) and In re Christopher K., 217 Ill. 2d 348, 379 (2005), our supreme court held: "absent unambiguous or unequivocal request for counsel, the investigators had no obligation to stop questioning the defendant," citing Davis v. United States, 512 U.S. 452, 461 (1994). 5

7 DOUBLE JEOPARDY Evans v. Michigan, No (February 20, 2013). Evans was charged with burning "other real property." The State's evidence at trial showed that Evans had burned down an unoccupied house. In his motion for directed verdict defense counsel argued that pursuant to the statute which defendant was charged under required that the building "was not a dwelling house." The trial court granted defendant's request for a directed verdict. The State appealed. The Michigan Court of Appeals reversed, saying that it was "undisputed that the trial court misrepresented the elements of the offense with which [Evans] was charged and erred in directing a verdict." The Michigan Supreme Court held that the trial court's ruling was erroneous and it did "not constitute an acquittal for purposes of double jeopardy and retrial is therefore not barred." The Supreme Court reversed: "This Court has previously held that a judicial acquittal premised upon a 'misconstruction' of a criminal statute is an 'acquittal on the merits *** [that] bars retrial.' Arizona v. Rumsey, 467 U.S. 203, 211 (1984). Seeing no meaningful constitutional distinction between a trial court's 'misconstruction' of a statute and its erroneous addition of a statutory element, we hold that a midtrial acquittal in these circumstances is an acquittal for double jeopardy purposes as well." PADILLA v. KENTUCKY IS NOT APPLICABLE RETROACTIVELY Chaidez v. United States, No (February 20, 2013). In 2004, Chaidez pled guilty to mail fraud. In 2009, immigration officials initiated removal proceedings against her. Chaidez sought to overturn her conviction by filing a petition for a writ of coram nobis, contending that her former attorney's failure to advise her of the guilty plea's immigration consequences constituted ineffective assistance of counsel under the Sixth Amendment. While her petition was pending, the Court decided Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla held that the Sixth Amendment requires defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas. The District Court vacated Chaidez' conviction. The Seventh Circuit reversed. The Supreme Court held that Padilla declared a new rule that answered an open question about the Sixth Amendment's reach in a way that altered the law of most jurisdictions. As Padilla announced a "new rule," a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding. Only when the Court applies a settled rule may a person avail herself of the decision on collateral review. APPLICABILITY OF APPRENDI TO MANDATORY MINIMUM SENTENCES Alleyne v. United States, No (June 17, 2013). Alleyne was charged with using or carrying a firearm in relation to a crime of violence, 18 U.S.C. 924(c)(1)(A), which carries a 5-year mandatory minimum sentence, 924(c)(1)(A)(I), that increases to a 7-year minimum "if the firearm is brandished," 924(c)(1)(A)(ii), and to a 10-year minimum "if the firearm is discharged," 924(c)(1)(A)(iii). In convicting Alleyne, the jury form indicated that he had "[u]sed or carried a firearm during and in relation to a crime of violence," but not that the firearm was "[b]randished." When the presentence report recommended a 7-year sentence on the 924(c) count, Alleyne objected, arguing that the verdict form clearly indicated that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a sentencing judge's finding of brandishing would violate his Sixth 6

8 Amendment right to a jury trial. The District Court overruled his objection, relying on this Court's holding in Harris v. United States, 536 U.S. 545 (2002), that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. The Fourth Circuit affirmed, agreeing that Alleyne's objection was foreclosed by Harris. The Supreme Court held: 1. Because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. Accordingly, Harris is overruled. "(a) Apprendi v. New Jersey, 530 U.S. 466 (2000), concluded that any 'facts that increase the prescribed range of penalties to which a criminal defendant is exposed' are elements of the crime, id., at 490, and thus the Sixth Amendment provides defendants with the right to have a jury find those facts beyond a reasonable doubt, id., at 484. Apprendi's principle applies with equal force to facts increasing the mandatory minimum, for a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed. Id., at 490. Because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense. It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. The fact that criminal statutes have long specified both the floor and ceiling of sentence ranges is evidence that both define the legally prescribed penalty. It is also impossible to dispute that the facts increasing the legally prescribed floor aggravate the punishment, heightening the loss of liberty associated with the crime. Defining facts that increase a mandatory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the indictment, see id., at , and preserves the jury's historic role as an intermediary between the State and criminal defendants, see United States v. Gaudin, 515 U.S. 506, (1995). In reaching a contrary conclusion, Harris relied on the fact that the 7-year minimum sentence could have been imposed with or without a judicial finding of brandishing, because the jury's finding authorized a sentence of five years to life, 536 U.S., at 561, but that fact is beside the point. The essential Sixth Amendment inquiry is whether a fact is an element of the crime. Because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense, that must be found by the jury, regardless of what sentence the defendant might have received had a different range been applicable. There is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum. (b) This ruling does not mean that any fact that influences judicial discretion must be found by a jury. This Court has long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. See, e.g., Dillon v United States, 560 U.S., (2010)." 7

9 2. Here, the sentencing range supported by the jury's verdict was five years' imprisonment to life, but the judge, rather than the jury, found brandishing. This increased the penalty to which Alleyne was subjected and violated his Sixth Amendment rights." PLAIN ERROR IS TO BE DETERMINED AT THE TIME OF REVIEW Henderson v. United States, No (February 20, 2013). The following is from the syllabus. A federal court of appeals normally will not correct a legal error made in a criminal trial unless the defendant first brought the error to the trial court's attention. United States v. Olano, 507 U.S. 725, 731. But Federal Rule of Criminal Procedure 52(b) provides an exception, permitting "[a] plain error that affects substantial rights [to] be considered even though it was not brought to the [trial] court's attention." Here, the District Court increased the length of petitioner Henderson's sentence so he could participate in a prison drug rehabilitation program. Henderson's counsel did not object to the sentence, but, on appeal, Henderson claimed that the District Court plainly erred in increasing his sentence solely for rehabilitative purposes. While the appeal was pending, this Court decided in Tapia v. United States, 564 U.S.,, that it is error for a court to "impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation." While this meant that the District Court's sentence was erroneous, the Fifth Circuit determined that Rule 52(b) did not give it authority to correct the error. In doing so, it concluded that an error is "plain" under the Rule only if it was clear under current law at the time of trial, but that, in this case, circuit law was unsettled until Tapia was decided. Held: Regardless of whether a legal question was settled or unsettled at the time of trial, an error is "plain" within the meaning of Rule 52(b) so long as the error was plain at the time of appellate review. Pp (a) The question of whether an error must be plain at the time it is committed or at the time it is reviewed reflects two competing legal principles. The principle that a right may be forfeited in a case if it is not timely asserted before a tribunal having jurisdiction to determine it favors limiting the assessment of plainness to the time of the error's commission. See Olano, supra, at 731. And the rule that an appellate court must apply the law in effect at the time it renders its decision favors assessing plainness at the time of review. See Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281. Because neither principle is absolute, the conflict cannot be decided by looking to one rather than the other. The text of Rule 52(b) also leaves open the temporal question. In Olano, this Court said that Rule 52(b) authorizes an appeals court to correct a forfeited error only if (1) there is an "error," (2) that is "plain," (3) that "affect[s] substantial rights," 507 U.S. 732, and (4) that " 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,' " Id., at 736. In Johnson v. United States, 520 U.S. 461, 468, the Court concluded that, where a trial court's decision was clearly correct under circuit law when made but becomes "clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration." However, neither case addressed what rule should apply where the law is unsettled at the time of the error but plain at the time of review. 507 U.S. at 734, 520 U.S. at Pp

10 (b) This precedent, when read in light of the underlying background principles, leads to the conclusion that Rule 52(b)'s "plain error" phrase applies at the time of review. If "plain error" covers trial court decisions that were plainly correct when made and those that were plainly incorrect when made, it should cover cases in the middle-i.e., where the law was neither clearly correct nor incorrect, but unsettled, at the time of the trial court's decision. To hold to the contrary would lead to unjustifiably different treatment of similarly situated individuals, for there is no practical reason to treat a defendant more harshly simply because his circuit's law was unclear at the time of trial. 9

11 ILLINOIS SUPREME COURT CASES SEARCH AND SEIZURE: ARREST FOR PETTY OFFENSES People v. Lewis Fitzpatrick, 2013 IL (April 4, 2013). Police saw defendant walking in the street in Zion. This is a violation of the Illinois Vehicle Code and a municipal ordinance and is classified as a petty offense. The police officer testified that he had no specific belief that defendant was armed, and defendant was not doing anything threatening at the time. The officer patted defendant down and placed him under arrest, as part of routine procedure. Defendant was searched for contraband at the police station. Cocaine was found in defendant's socks. 4. The trial court denied defendant's motion to suppress and the appellate court affirmed IL App (2d) On appeal to the supreme court, defendant argued that this his motion to suppress should have been granted because the search and seizure clause of the Illinois Constitution (Art. I, sec. 6) provides greater protection than its federal counterpart. The supreme court rejected defendant's argument pointing out that in People v. McDonald, 26 Ill. 2d 325 (1962), the court upheld a search incident to an arrest for a fine-only offense. Also, "in People v. Hoskins, 101 Ill. 2d 209, 216 (1984) this court held that under both the federal and Illinois constitutions, it is 'reasonable' for police to conduct a full search of a person after any lawful arrest." 19. The court concluded "we will construe article I, section 6, of the Illinois Constitution of 1970 in the same manner as the fourth amendment." 24. SEARCH AND SEIZURE: SCOPE OF SEARCH AFTER TERRY STOP People v. Michael Colyar, 2013 IL (April 18, 2013). Police saw defendant sitting in a car parked in the entrance driveway of a motel. As the police walked toward the car, a person walked from the motel and got in the car. The police asked defendant why he was parked in the entrance. Defendant replied that he was there to pick someone up at the motel. The police then observed a three inch long.454 caliber bullet in a clear plastic bag in the center console. The police told the occupants to get out of the car and handcuffed them. The police then went into the car, recovering the plastic bag which contained five bullets. A bullet was also found in defendant's pants pocket. The police then searched the car and recovered a.454 revolver under the floor mat on the front passenger side. Defendant was charged with multiple weapons offenses. Defendant filed a motion to suppress evidence, arguing that the police lacked probable cause for any of their actions because possession of a bullet is not per se illegal and the police never asked the defendant if he had a valid F.O.I.D. card. The circuit court granted the motion to suppress as to both the bullets and the gun. The State filed a certificate of impairment. A divided appellate court affirmed the suppression. 407 Ill. App. 3d 294. The supreme court reversed, holding: "Relevant to the issues here, the United States Supreme Court has extended Terry to permit a protective search of a passenger compartment of a vehicle during an investigatory stop. Michigan v. Long, 463 U.S (1983); see also Arizona v. Gant, 556 U.S. 332, 352 (2009) (Scalia, J., concurring) (noting that 'the rule of Michigan v. Long is not at issue here'). Explaining its decision, the Long Court noted that roadside encounters are 'especially hazardous,' and a police officer may reasonably believe that he is in danger from the possible presence of accessible 10

12 weapons inside the vehicle. Long, 463 U.S. at Under Long, the investigative search of the passenger compartment should be limited to the area where a weapon may be located or hidden. The search is permissible only when the officers possess a reasonable belief, based on specific and articulable facts and reasonable inferences from those facts, that the individual was dangerous and could gain control of a weapon. As in Terry, '[t]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' Long, 463 U.S. at 1050 (quoting Terry, 392 U.S. at 27)." 38, 39. "Thus, under the circumstances of this case, and consistent with Long's extension of Terry to permit protective searches of a vehicle passenger compartment during a Terry stop, Officer Alcott and Detective Johnson, acting on a reasonable fear for their safety, properly searched the passenger compartment of defendant's vehicle and recovered the.454-caliber handgun under the front passenger floor mat." 48. The supreme court cited cases from 17 other jurisdictions which upheld protective sweeps of vehicles when the police observe ammunition in plain view. 60. The court concluded: "Ultimately, the dissent's position would require us to hold that police officers must ignore a bullet in plain view and first establish that defendant committed a crime before conducting a protective search for weapons. Terry, however, clearly rejected such a conclusion when it determined that 'a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime.' Terry, 392 U.S. at " 61. PROBABLE CAUSE TO ARREST: SOLICITATION OF UNLAWFUL BUSINESS People v. Ronnie Grant, 2013 IL (February 7, 2013). Defendant was convicted in a stipulated bench trial of possession of cocaine. Defendant had been arrested by Chicago Police for "soliciting unlawful business on a public way," a municipal offense. Defendant filed a motion to quash arrest and suppress evidence. A police officer testified that he saw defendant standing in a "highly used narcotics sales spot," yelling "dro, dro." This is a street term for cannabis. The police frisked defendant and found four small bags containing cannabis. The trial court found that the police had probable cause to arrest defendant and their search incident to arrest was appropriate. On appeal, a divided appellate court reversed, concluding that the facts elicited from the police officer, did not constitute probable cause that defendant violated the city ordinance IL App (1st) The supreme court reversed the appellate court. The supreme court considered several federal and other state appellate cases which held there was no error in allowing police officers to testify regarding the meaning of terms spoken and actions taken by persons engaged in the sale of narcotics The court held that "what is required are facts sufficient to lead a reasonably cautious person to believe that the 11

13 arrestee solicited unlawful business ***. Here, the facts known by the officers at the time of defendant's arrest met this requirement, even without the traditional indicia of drug activity." 22. JUVENILE CONFESSION People v. Germill Murdock, 2012 IL (November 1, 2012). Defendant was convicted by a jury of first degree murder and aggravated battery with a firearm. Defendant's conviction was affirmed on appeal. Defendant filed a postconviction petition, alleging that his trial counsel was ineffective for failing to move to suppress his incriminating statements to police. Defendant was 16 years old when he was arrested in 2001 for murder. In his postconviction petition, defendant alleged that his confession had been coerced. The circuit court advanced the petition to a third stage evidentiary hearing and denied it. On appeal, the appellate court reversed and remanded for a suppression hearing. The trial court conducted the hearing and denied the motion to suppress. The appellate court affirmed this denial. Defendant appealed to the supreme court, primarily arguing that the absence of a concerned adult during his interrogation required the suppression of his statements. At defendant's trial, Detective Mushinsky testified that he advised defendant of his Miranda rights. Defendant confessed that he had driven two associates to a park for the purpose of shooting two people parked in a car. Defendant then gave a written statement which was consistent with his oral statement. Defendant then gave a video taped statement. During the postconviction suppression hearing, defendant's grandmother testified that she had gone to the police station but was not allowed to meet with defendant. The trial court denied the postconviction petition finding that defendant could not have prevailed on a motion to suppress. The appellate court reversed, remanding the matter to the circuit court with instructions to conduct a suppression hearing. At the hearing on remand, Mushinsky testified that during his interview with defendant, defendant's grandfather arrived at the police station and spoke with Mushinsky. Neither defendant nor the grandfather asked to speak to one another. Mushinsky testified that when he was interrogating defendant, he was acting as both the lead investigator and as a juvenile officer. Defendant's grandmother did not testify at the suppression hearing which was conducted by a different judge than the postconviction hearing. The circuit court denied the motion to suppress. The appellate court affirmed. On appeal, the supreme court reviewed its prior holdings addressing confessions as well as some appellate court decisions. " 'In reviewing a trial court's ruling concerning whether a confession is voluntary, the trial court's factual findings will be reversed only if those findings are against the manifest weight of the evidence.' People v. Morgan, 197 Ill. 2d 404, 437 (2001). Ultimately, however, the trial court's ruling on whether the confession was voluntary is subject to de novo review. Id. To determine the voluntariness of a confession, courts consider the totality of the circumstances, including such factors as the defendant's age, intelligence, background, experience, education, mental capacity, and physical 12

14 condition at the time of questioning. Id. Other factors include the duration and legality of the detention and whether there was any physical or mental abuse by the police. Id. Threats or promises made by the police may be considered physical or mental abuse. Id. No single factor is dispositive, rather '[t]he test of voluntariness is whether the individual made his confession freely and voluntarily, without compulsion or inducement of any kind, or whether the individual's will was overborne at the time of the confession.' " Id The court continued, pointing out that "the taking of a juvenile's confession is a sensitive concern," and must "not be the product of adolescent fantasy, fright or despair," and courts also consider the "presence of a concerned adult." 32 However, "the concerned adult factor is just one of the many factors to be examined when determining whether a juvenile's confession was voluntary." 33 The court then noted that the appellate court has developed two lines of cases addressing the role of a juvenile officer - either to ensure that the juvenile is not coerced or that the juvenile officer should take an active role and "affirmatively protect their rights." 49 The court then found "Even under the more lenient standard, Mushinsky cannot be said to have been acting as a juvenile officer." 50 However, the court found that the factual circumstances mitigated this failure. "Under the totality of the circumstances, we find defendant's statements to be voluntary. In a motion to suppress, the true test of voluntariness is whether the defendant 'made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether the [defendant's] will was overcome at the time he or she confessed." G.O., 191 Ill. 2d at 54 (quoting People v. Gilliam, 172 Ill. 2d 484, 500 (1996)). No single factor is dispositive, and each case is fact specific and must be evaluated on its own specific set of circumstances. Minniti, 373 Ill. App. 3d at 73. In this case, the absence of a concerned adult did not create a coercive atmosphere so as to render defendant's statements involuntary. Defendant was able to clearly communicate with Mushinsky and understand the questions posed to him. He was able to understand and give assent to a waiver of his Miranda rights. On tape defendant appeared mostly calm and collected. He did not appear frightened or under any intense coercion. Defendant was never threatened physically or mentally and Mushinsky made no promises or assurances to defendant so as to contribute to a coercive atmosphere. Defendant was allowed access to food, drink, and restrooms. We find that, despite the absence of a concerned adult, defendant's statements were the result of his own decision and that at no point during the interview was defendant's will overborne. Under the totality of the circumstances, and considering all the factors, defendant made his statements freely and voluntarily and absent any compulsion or inducement." 55 Justices Burke, Freeman and Theis dissented, arguing that the appellate court erred in remanding the case for a suppression hearing after the circuit court had conducted a third-stage evidentiary 13

15 hearing. The dissenters argued that this error resulted in the supreme court majority erroneously failing to consider defendant's grandmother's testimony. INEFFECTIVE ASSISTANCE OF COUNSEL; FAILURE TO FILE A MOTION TO SUPPRESS People v. Carl Henderson, 2013 IL (May 23, 2013). Chicago police officers were flagged down by an unidentified concerned citizen who told them there were some men driving nearby in a tan four-door Lincoln and they "possibly" had a gun. The police saw the described vehicle and pulled it over. The driver and front seat passenger exited the car when the police told them to do so. The defendant was a passenger in the rear of the car. When he was told to exit the car, he did so, but a handgun fell from defendant's waistband. Defendant then ran away. The defendant was convicted of aggravated unlawful use of a weapon after a bench trial. In finding defendant guilty, the trial court commented that had defendant not run away, the court may have granted a motion to suppress. On appeal, defendant alleged that his trial attorney provided ineffective assistance of counsel for failing to file a motion to suppress the gun. The supreme court first held: "We now clarify that where an ineffectiveness claim is based on counsel's failure to file a suppression motion, in order to establish prejudice under Strickland, the defendant must demonstrate that the unargued suppression motion is meritorious, and that a reasonable probability exists that the trial outcome would have been different had the evidence been suppressed." 15. The court next considered whether the police had probable cause to stop the vehicle. "A tip from an anonymous person may supply the requisite quantum of suspicion to conduct a Terry stop, provided the information bears some indicia of reliability. Alabama v. White, 496 U.S. 325, 327 (1990); People v. Ledesma, 206 Ill. 2d 571, 583 (2003); overruled in part on other grounds by People v. Pitman, 211 Ill. 2d 502, 513 (2004). The tip must be 'reliable in its assertion of illegality, not just in its tendency to identify a determinate person.' Florida v. J.L., 529 U.S. 266, 272 (2000). As the Supreme Court explained: " 'An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity.' " Id. Knowledge of concealed criminal activity may be demonstrated where the anonymous informant accurately predicts future behavior, thus indicating that the informant has 'inside information.' White, 496 U.S. at 332; accord Ledesma, 206 Ill. 2d at " 26. The supreme court held that the cooperating citizen in the instant case did not provide "predictive information." Consequently, the vehicle stop was an illegal seizure of the defendant. The court 14

16 next considered the holding in California v. Hodari D., 499 U.S. 621 (1991). There, the Supreme Court considered whether a seizure occurs when a suspect runs away when police approach. The Court held it does not. 499 U.S. at 626. "We conclude that defendant has failed to demonstrate that the gun was the fruit of the poisonous tree. Defendant's flight interrupted the causal connection between the officers' misconduct, which was not flagrant, and the discovery of the gun. This is not a case where the evidence 'could be said to have been obtained by exploitation of the illegality.' Gabbard, 78 Ill. 2d at 95. To conclude otherwise, as defendant urges, is not only contrary to fourth amendment jurisprudence, but is contrary to public policy. Permitting defendants to flee from police under the circumstances of this case, and yet claim the protections of the fourth amendment, would foster a lack of cooperation with law enforcement officers, putting the police and the public at risk. See Hodari D., 499 U.S. at 627 ("Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged."); Keys, 375 Ill. App. 3d at 464 (public policy supports courts of law, rather than suspected criminals, determining the legality of seizures); Henson v. United States, 55 A.3d 859, 969 (D.C. App. 2012) (if the defendant believed that the officer's conduct was illegal, he should have tested its legality through the courts, rather than engage in self-help by fleeing). Because a motion to suppress the gun would not have been granted, defendant cannot satisfy his burden under Strickland. Accordingly, we reject defendant's claim that his trial counsel was ineffective." STATE APPEAL OF GRANT OF MOTION TO SUPPRESS IN JUVENILE DELINQUENCY PROCEEDINGS In re B.C.P., 2013 IL , June 20, B.C.P. was alleged to be delinquent because he committed two counts of aggravated criminal sexual abuse. He moved to suppress his confession on the grounds that he was not advised of his Miranda rights. Following a hearing, the trial court granted the motion to suppress. The State filed a certificate of impairment and a notice of appeal. The appellate court dismissed the appeal for lack of jurisdiction IL App (3d) The court reasoned that no supreme court rule specifically allowed the State to take an interlocutory appeal from the granting of a motion to suppress in a juvenile delinquency proceeding. Id The supreme court agreed with the State that "[t]he State has the same need for an automatic interlocutory appeal of the suppression of evidence in delinquency proceedings as it does in criminal proceedings because, in many cases, whether or not evidence is suppressed will determine if the State can go forward with its case." 16, quoting State v. Jade G., 154 P.3d 659, 664 (N.M. 2007). The supreme court modified Supreme Court Rule 660(a) to allow the State to appeal an interlocutory order suppressing evidence in a juvenile delinquency proceeding. 20. Finally, "when the State takes an interlocutory appeal from a suppression order in a juvenile delinquency proceeding the matter should be expedited pursuant to Rule 660A."

17 ATTORNEY CONFLICT OF INTEREST People v. Albert Fields, 2012 IL (September 20, 2012). Fields was charged with sexually assaulting his stepdaughter over a number of years when she was under 18 years-of-age. Prior to trial, the State moved to introduce other-crimes evidence pursuant to section to show that defendant had a propensity to commit sex crimes. The offered evidence alleged that defendant had been convicted in a different county of the aggravated sexual abuse of nine-year-old C.S., when C.S. and her mother lived with Fields. Fields filed an ARDC complaint against his attorney and a new attorney was appointed. The new attorney had represented Fields on the case involving C.S. Fields was convicted of the sexual assault of his stepdaughter and sentenced to two consecutive 18-year sentences. On appeal, Fields argued that his trial attorney had served as a guardian ad litem for C.S. several years before Fields was convicted of her sexual abuse. A majority of the appellate court reversed and remanded, finding there was per se conflict of interest because of his trial attorney's having been C.S.'s GAL and C.S. testified against Fields in the case involving his stepdaughter. 409 Ill. App. 3d 398. The supreme court reversed. "There are two categories of conflict of interest: per se and actual. Id. A per se conflict of interest exists where certain facts about a defense attorney's status, by themselves, engender a disabling conflict. Stated otherwise, a per se conflict arises when a defendant's attorney has a tie to a person or entity that would benefit from an unfavorable verdict for the defendant. Hernandez, 231 Ill. 2d at 142. As the appellate court stated, this court has found three situations where a per se conflict exists: (1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; (2) where defense counsel contemporaneously represents a prosecution witness; and (3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant. Taylor, 237 Ill. 2d at 374; Hernandez, 231 Ill. 2d at If a per se conflict is found, a defendant need not show that the conflict affected the attorney's actual performance. Taylor, 237 Ill. 2d at Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal. Taylor, 237 Ill. 2d at 375. *** Upon review, we find that the appellate court majority erred in holding that a per se conflict of interest existed in this case. Illinois supreme court case law has clearly and consistently held that, in cases where defense counsel has represented a State's witness, a per se conflict of interest will not be held to exist unless the professional relationship between the attorney and the witness is contemporaneous with defense counsel's representation of the defendant. DEFENDANT'S CUSTODIAL STATEMENTS: PLEA NEGOTIATIONS People v. Jose Rivera, 2013 IL (February 22, 2013). Rivera was arrested after his stepdaughter and her friend reported being sexually assaulted by Rivera over a three-year period beginning when the girls were 12 years old. While in police custody, Rivera told the police and an ASA that he would "talk about what happened" but he did 16