Dale A. Anderson

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February 2020 CourtSmart Exam

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IS A GUN CONCEALED IF AN OFFICER SEES THE PASSENGER PUT IT IN THE GLOVE BOX?

Context
Officers are sometimes confused about the
constitutional and statutory issues related to a
person’s right to have a firearm in a vehicle.

People v Balark

Facts
Officers conducted a traffic stop on a vehicle that
had four occupants. As the officers approached the car, the officers had their guns
drawn. An officer saw the front seat passenger put a gun into the glove compartment.

The officers got the occupants out of the vehicle and local residents began to get hostile
toward the officers. So the officers decided they would take the occupants and their
vehicle to the station.

The officer who saw a gun never told anyone that he saw the gun during the tense
episode. The officer testified that he notified another officer but not the officer who drove
the suspect car to the station. The weapon was not “inventoried” until three and half
hours later.

It was stipulated in court that Balark did not have a FOID card or CCL.

Balark testified that he had been picked up by his cousin about 10 minutes before they
were stopped by the police. He further testified that he had nothing in his hands as the
officers approached.

Trial Court
The trial court judge believed the officer when he said that he saw Balark put the gun
into the glove box. Therefore, the judge found Balark guilty of UUWF and sentenced
him to six years in prison.

The Illinois Appellate Court
The Illinois Appellate Court affirmed, stating that “open” possession of a firearm during a
traffic stop is illegal -- and that the officer had probable cause for the arrest.

Training Tips
1. The court noted that “probable cause does not even demand a showing that the
suspect has committed a crime is more likely than not.” People v Lee, 214 Ill.2d
476, 485 (1985)
2. The court points out that the Supreme Court in Colyar re-affirmed its decision
after Aguilar. In Colyar, the officers who saw a bullet in a vehicle in a high crime
area at dusk were reasonable in getting all occupants out of the car and
searching them. After finding more bullets on them, the officers had reasonable
suspicion to search the vehicle for a weapon. The important part of this
affirmation of Colyar is that it is still good law after the Aguilar court held that it is
lawful to have a gun if the person has a right to carry it. Colyar is the most
important 4th Amendment case ever decided in Illinois – you must read it and
understand it – the entire case.
3. The court distinguished Horton. Horton was the case where officers saw
something metallic in Horton’s waistband as he ran into a house. The officers
followed him, arrested him and discovered the weapon nearby. The appellate
court in Horton held that there was no law against possessing a firearm and
suppressed the evidence. Possibly the court thought that the officers in Horton
arrested Horton too soon (before they had probable cause) as they did not know
if he had the right to carry.


HOW DO YOU TURN A SUSPICIOUS CAR INTO AN ARREST?

Context
Many officers believe that if a person calls 911
about a suspicious person or car, the officer may
detain the suspect. Those officers don’t
understand that “suspicious” is what attorneys call
a “conclusory” term – basically meaning that there
are no facts explaining why the person or car is
suspicious.

There seem to be more and more cases recently
where officers question persons in parked cars. In
most of these, officers go from a consensual
encounter to reasonable suspicion (which permits
the officers to detain the suspect and get him out
of the car), then arrest.

People v Jordan

Facts
Two officers in two separate cars responded to a report of a “suspicious vehicle” in a
high crime / high drug area. The resident reported that the car’s engine was being
turned on and off and that people were getting in and out of the car.

When the officers arrived, they saw Jordan. An officer asked what Jordan was doing
there and Jordan responded that he was “waiting on a ride.” Jordan opened his door
and the officer then stood inside it. Jordan would not provide identification. The officer
told Jordan that he would be arrested for “obstructing identification.”

An officer also saw a very small (one inch by one inch) baggie on the floorboard. The
officer later testified that he had never seen a baggie that small except for drug sales.

The baggie, however, had no drugs in it.

So the officers ordered Jordan out of the car. Shortly thereafter a drug dog hit on the
car. The officers searched the car and discovered meth.

Jordan filed a motion to suppress and argued that he was seized while in the car
because there were multiple officers who flanked both sides of the car with their
weapons visible. Finally, the officers’ voices rose during the encounter making Jordan
feel that he could not leave.

He also argued that seeing a very small plastic baggie did not create the reasonable
suspicion necessary to order him out of the car.

The Trial Court
The trial judge ruled that the original contact was a consensual encounter. The
encounter became a seizure when the officer ordered Jordan out of the car. At that
point there was not reasonable suspicion as the only thing suspicious was the plastic
bag and there was nothing in it. Therefore, the evidence was suppressed.

The Illinois Appellate Court
The Illinois Appellate Court ruled that the initial encounter was consensual (under
MENDENHALL) as:
 There were only two officers;
 They never pulled their guns;
 They never grabbed the suspect;
 They never ordered the suspect to do anything (initially).

The court ruled that Jordan was seized when he was ordered out of the car. The court
ruled at that time the officers had reasonable suspicion as:
 This was a high crime / drug area;
 The plastic baggie was indicative of drug transactions.
The court also ruled that the stop was not unduly prolonged.
So the court reversed the trial court and ruled the evidence admissible.

Training Tips
1. Always try to get the dispatcher to ask about facts related to the suspicious
circumstances.
2. An officer in this case testified that she conducted an “investigative stop” when
she walked up to the driver’s side. Officers often say that they “stopped” a person
to talk to them. This is a bad thing to put in your reports. Some defense attorneys
and judges use these against the officer. A stop of a person normally requires
reasonable suspicion. It is much better to say that you contacted the person.
3. The officer also used her spotlight instead of her overhead / emergency lights. An
officer’s use of a spotlight during a consensual encounter is constitutional as it is
considered to be not a seizure. Use of overhead / emergency lights is a seizure
(requiring reasonable suspicion). The courts noted also that the officers did not
box the suspect car in (which would also have been a seizure).
4. Courts vary in how they view the seizure tiers. This court stated that “third-tier
encounters are also known as consensual encounters.” Other courts call them
first-tier encounters.
5. The strongest argument Jordan made that the encounter became a seizure was
that the officer was persistent in her questioning / interrogation. Interrogation is
NOT a seizure, and the court so ruled. See e.g. People v Richardson, 876 NE2d
303 (2007)
6. The drug dog apparently arrived 14 minutes after the stop. 14 minutes is
probably the outside time limit for a drug dog to arrive during a traffic stop. Since
this was not a traffic stop (the officer had reasonable suspicion that there were
drugs), the dog arrived well within the time limit.
7. A suspect cannot be forced to provide identification during a consensual
encounter or even during a TERRY stop in the state of Illinois (See People v
Fernandez, 963 NE2d 1058 (2012), but obviously must during a traffic stop.
8. The officers described the area as a high crime high drug area. The problem was
that they could not provide “any statistics or specific details regarding that area.”
Always be prepared to provide details if one of your reasons for the stop was the
high crime area.


DOES THE OFFICER HAVE TO ASK ABOUT INSURANCE TO INVENTORY A CAR?

Context
According to Illinois statute, every driver
must have insurance and must produce
proof of it when asked during a traffic stop.

People v Nash, 409 Ill App3d 342 (2011)

If the officer asks for insurance, and the
vehicle is not insured, the vehicle may be
impounded and inventoried under the 4th
Amendment for community care-taking
reasons.

An inventory search is constitutional only if:
 The original impoundment is lawful;
 The purpose is to protect the person’s property;
 The search is not a pretext to discover crime-related evidence.

What happens when an officer doesn’t ask for insurance?

People v Davis

An officer saw Davis driving. The officer knew Davis and thought that his license was
revoked. When he ran Davis’ name in his computer, he confirmed his license was
revoked. Davis was stopped. The officer asked Davis if he had a license and Davis
admitted that he didn’t. The officers arrested Davis and took him to the police station.

Several unknown men said they would move the car, but an officer got in the car, drove
it to the station and discovered a gun under the driver’s seat during an inventory search.

Davis was charged with several firearm offenses.

The Trial Court
The trial judge ruled that the car was lawfully parked and therefore could not be
impounded (seized) and searched.

The Illinois Appellate Court
The Illinois Appellate Court ruled that the officer failed to ask Davis if he had insurance,
so the court ruled that the officer did not carry his burden of proving that Davis did not
have insurance. Therefore, the evidence was suppressed.

Training Tips
1. Officers should ALWAYS ask for proof of insurance during traffic stops.
Obviously, officers should ask about this before the person is in custody (as then
the officers will have to MIRANDIZE before asking that question).
2. So many officers do NOT ask for insurance. We have wondered why.
3. There are so many cases now that rule that officers cannot conduct an inventory
(e.g. when the car is lawfully parked or there is a licensed sober driver in the
vehicle). If you want to have a situation where it is constitutional to impound and
inventory the vehicle, this is a perfect way – there is no insurance on the vehicle.
And the reason why impoundment is constitutional is that we can’t have vehicles on
the road that are not insured. It is a classic community caretaking rationale. See e.g.
People v Nash, 947 NE2d 350 (2011)


WHAT HAPPENS WHEN A STATUTE MEETS THE 4TH AMENDMENT?

Legislatures often “codify” the Constitution. That means they try to turn Constitutional law into legislation.

Sometimes it makes them feel like they are doing something worthwhile. It is virtually always a mistake.

Legislatures also create statutes that are, or appear to be, in direct conflict with the Constitution.

That is / was the apparent problem with section 11-501.2(c)(2) of the Illinois Vehicle Code. It basically says that if a person is DUI and kills (or hurts) someone that officers can take his blood or urine. The only thing that saves this kind of legislation is that courts are required to always try to figure out a way to interpret all statutes so they are constitutional.

This can conflict with the 4th Amendment that says that taking blood is very serious intrusion into the suspect’s body. MISSOURI V MCNEELY, 133 S Ct 1552 (2013). In McNeely, the Supreme Court ruled that there must be something more than just the dissipation of BAC to justify not obtaining a warrant under the exigency doctrine.

You may remember this case, Eubanks, from last year – a drunk driver runs over and kills a pedestrian. The trial court judge in Eubanks ruled that the evidence against Eubanks (the results of a urine sample) was admissible (the blood sample showed nothing), and Eubanks was convicted of first degree murder and aggravated DUI.

The Illinois Appellate Court ruled in People v Eubanks, 2017 IL App (1st) 142837 that Eubanks’ aggravated DUI conviction must be reversed because the police took blood and urine from Eubanks without a warrant. The court ruled that the statute above was unconstitutional and therefore, suppressed the evidence (the results of the urine test).

The Illinois Supreme Court took the case on appeal. (See below.)

People v Eubanks

Facts
Eubanks was driving 80-90 miles an hour in a Chicago neighborhood with his headlights off. He hit a woman, Maria, and her six-year-old son. Eubanks did not slow down or stop but continued down the street. Maria’s body was found about a block away. She was unrecognizable and the top of her head was gone. Her brains were found at the site of the “accident.” Possibly worse, her son suffered permanent terrible injuries.

10 minutes after the accident, around 9:00 p.m., officers caught Eubanks and took him into custody. At approximately 10:30 officers interviewed Eubanks at the station. At midnight Eubanks refused to give blood or have his urine tested. Officers informed Eubanks that he did not have a right to refuse a blood or urine draw under the statute.

The officers took Eubanks to the hospital at about 3:00 a.m. Because Eubanks resisted the blood and urine draw, officers held him down and handcuffed him to the bed at about 4:00.

The blood draw ended up testing negative for drugs and alcohol even though everyone could smell the alcohol on Eubank’s breath, and Eubanks said he drank a 5th of Hennessey earlier.

Eubanks continued to refuse to provide a urine sample, so the nurse threatened to use a catheter. Eubanks finally acquiesced to provide a urine sample at 5:20.

Eubanks’ urine tested positive for cannabis, and its metabolite, ecstasy and its metabolite, and cocaine metabolite.

Illinois Supreme Court
The Illinois Supreme Court ruled that If an officer has an exigency -- like the injury of a third party-- the statute permits the officer to draw blood without obtaining a warrant. So it is not “per se” unconstitutional.

It is obvious in this case that the officers were not relying on the exigency doctrine – They were instead relying on the statute – as they did not draw Eubank’s blood or take a urine sample for seven (7) hours after the officers took Eubanks into custody.

The silly part of this decision is, if there is an exigency, the officers can rely on that – not the statute – to support their decision NOT to get a warrant. One justice on the supreme court offered that common-sense statement – probably to let the legislature know that the legislation was ill-conceived in the first place. In this instance the legislature thought it was doing officers a favor – instead the legislation actually hurts officers.

Training Tips
1. The main mantra officers must always remember is this rule –
If you have probable cause and it is a “big” case, always get a warrant
(unless you can’t).
2. The most likely circumstance where the court is going to rule that there is an
exigency, to avoid getting a warrant, is when the driver himself is injured.
3. Do not trust this statute.
4. If a statute is unconstitutional, officers cannot rely on the good faith doctrine to
bail them out. See People v Krueger, 675 NE2d 604 (1996)
5. Since the prosecutor cannot use the urine test results at trial, the prosecutor will
probably need to plead the case down considerably.
6. The following is an esoteric point that is sort of important to understand the
holding of this case. A statute can be unconstitutional – or just unconstitutional as
applied to the particular defendant’s case. Here, of course, it was unconstitutional
just in this case. The court did a great dis-service to every officer who in the
future believes they can avoid getting a warrant in a case where the suspect
killed someone. Mark these words – this will happen again as most officers
believe they can under the statute.


January 2020 CourtSmart Exam

January CourtSmart Mandates 

  • Civil Rights
  • Constitutional and Proper Use of Law Enforcement Authority
  • Law Updates
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SHOULD OFFICERS AVOID BEING OVERLY-INFLUENCED BY CITIZENS?

Context
Officers often want to help citizens and other
government workers on issues of concern. In
so doing, officers must remember that they
are to be impartial and careful not to violate
citizens’ rights.

Illustrative are emergency, protective services and social personnel who do not
understand why officers cannot constitutionally accomplish the tasks government
personnel want them to accomplish.

An example of this occurred when a social worker talked an officer into pushing their
way into a home to see if a 3-year-old had marks on his buttocks. Obviously, the officer
could not explain his exigent circumstances and both were successfully sued as neither
could even get qualified immunity by the Circuit Court. Calabretta v Floyd, 189 F3d 808
(9th Cir 1999)

Citizens, no matter how influential, should not be able to push officers to violate rights or
do what is wrong.

Green v Howser

Facts
Grandparents, the Howsers, thought that their daughter-in-law, Green, was an unfit
mother of their grandchild.

At one point, Green wrote a $200 check to the Howsers. The check bounced. As a
result, the prosecutor was persuaded to file a felony information and obtain a warrant.
The Sheriff was persuaded to execute the arrest warrant against Green in the middle of
the night. Green’s husband (the Howser’s son) was not at home.

Green was arrested, and the grandfather took the granddaughter. When Green was
released, she was re-arrested for failing to return a memory card to the Howsers. Green
finally regained custody of her daughter.

After the custody proceedings, Green sued the Howsers, the prosecutor and the sheriff
for conspiring with state officials to violate her due process right to make decisions
regarding the care, custody and control of her child under Section 1983. The
prosecutor and sheriff had to settle the case.

Federal District Court
A federal district court jury ruled in favor of Green awarding her close to a million dollars
in compensatory, punitives and attorneys’ fees.

The 7th Circuit Court of Appeals
The 7th Circuit affirmed.

Training Tips
1. Generally, Section 1983 does not allow officers to shift the blame of constitutional
violations to other people. Every officer must know when they can search or
seize.
2. Officers should never search or seize just because someone asks them or tells
them to. Search or seize only when it is constitutional.


WHEN DOES TIME DISSIPATE PROBABLE CAUSE?

Context
Time can dissipate probable cause, but this
normally occurs when there is evidence of drugs in
a home, etc.; and officers wait too long to obtain
the warrant. The question then is – how do the
officers know the drugs are still there? Generally,
that is not true in probable cause related to arrests.
If there is probable cause to arrest at an earlier
time, the probable cause does not usually dissipate
if the arrest is made a little later.

United States v Haldorson

Facts
A confidential informant bought drugs from Mike Jones (AKA Michael Haldorson) during
a controlled buy. Over three weeks later, officers arrested Haldorson. The officers
searched Haldorson’s car and discovered a lot of drugs, pipe bombs and explosives.

The Illinois Appellate Court
The Illinois Appellate Court ruled that “the mere passage of time does not necessarily
dissipate the probable cause for an arrest. It is well established that there is no
requirement that a suspect be arrested the moment probable cause is established. It is
the rare case where ‘staleness’ will be relevant to the legality of a warrantless arrest.
When there is a reasonable belief that someone has committed a crime, time by itself
does not make the existence of that fact any less probable. Certainly, good police
practice often requires postponing an arrest, even after probable cause has been
established, in order to place the suspect under surveillance or otherwise develop
further evidence necessary to prove guilt to a jury.”

Training Tips
1. The Vehicle Search– The court ruled that the search of the vehicle was
constitutional under the inevitable discovery theory as eventually the car
would have been searched under the inventory doctrine.
2. The Apartment Search– The court also ruled that the officers’ search of
Haldorson’s bedroom / apartment without a warrant was also constitutional –
under the exigency doctrine. The officers discovered explosives. They then
obtained a warrant.


DOES THE OFFICER HAVE TO ASK IF THE SUSPECT HAS A FOID CARD?

Context
Officers often do not ask a suspect if he has a FOID card if
the officers are pretty sure that he doesn’t. This is a
mistake. Ask!!

People v Thomas

Facts
Thomas stopped his car. Officers pulled up behind him and
turned on their spot light. An officer saw through the window
of Thomas’ car a handgun sticking out from under the
passenger’s seat. The officers handcuffed Thomas and his
passenger and put them in the back seat of the patrol car.
The officers then entered the unlocked car and seized the
firearm. Thomas was charged with AUUW. The officer later
testified that he never asked whether Thomas (or his
passenger) had a FOID card.

The Illinois Appellate Court
The Illinois Appellate Court ruled that the officers were within their constitutional powers
when they seized the weapon (even though Thomas and his passenger could not
access it). But they held that the officers could not arrest Thomas when the gun was
under the passenger’s seat without asking him and the passenger if they possessed a
FOID card. Therefore, the gun was suppressed.

Training Tips
1. The Illinois Supreme Court in Aguilar ruled that officers cannot arrest a suspect
simply because he has a gun as it is legal to have a gun (if the person has a
license), so wouldn’t it make sense to find out if the suspect has a FOID card?
2. If suspects are handcuffed when you talk to them, you must MIRANDIZE them
before questioning them.
3. The search itself was constitutional under The TERRY / LONG doctrine, that
provides that officers may search a vehicle if there is reasonable suspicion that
there is a weapon in the vehicle.


IS THERE PC FOR A WARRANT WHEN THE SELLER GOES FROM HIS HOME TO THE DEAL?

Context
There has been an abundance of cases recently
explaining the probable cause requirement when it
comes to a controlled buy. If the suspect comes
directly from his home, is that probable cause to
believe that the suspect has drugs in his home?

People v Teague

Facts
Officers set up a controlled buy between a confidential source and Teague. The source
called Teague at his home and Teague went directly from his home to the place of the
transaction. The officers obtained a warrant for his home and discovered drugs.

Illinois Appellate Court
The Illinois Appellate Court ruled that the officers had probable cause to obtain a search
warrant for Teague’s home. Therefore, the evidence was admissible.

Training Tips
1. In cases like this, always try to have more evidence that just that the seller
travelled directly from his home to the place of the transaction as the defendant
may be able to persuade a judge that the defendant had the drugs for the
transaction at his home, but that most drug dealers would keep the drugs some
other place.
2. Try to get the seller to admit that he has drugs in his home.


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