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Exam Passed

CourtSmart

By Law Enforcement Training LLC

April 2022

Editors: Anthony Polse, Stephen Scheller, James Volpe, Renee Weingard

Contents

officers questions—our answers

autism: facts, awareness and ideas

what happens when an officer acts recklessly in obtaining a search warrant?

what are the factors courts will consider to determine whether a confession is voluntary?

when does a police officer have reasonable suspicion to conduct a terry search?

what happens when a person abandons property during an unlawful seizure?

DISCLAIMER

CourtSmart publications are not intended to be legal advice. You should not consider them as such. Rules may be interpreted differently by different attorneys and may change at a moment’s notice. CourtSmart does not create a lawyer-client relationship. You must always check with a competent attorney before proceeding to act on any information or situation encountered. Any & all information in CourtSmart is not a substitute for legal advice which must come instead from your attorney. Detrimental reliance on the materials found in CourtSmart may not be claimed.

REPRODUCTION OR RETRANSMISSION OF MATERIALS IS PROHIBITED. All rights are reserved. The material contained in CourtSmart may not be republished, retransmitted or forwarded without express written consent fromLaw Enforcement Training, LLC. Violation of this copyright may result in subscription cancellation and/or collection of full or partial subscription charges from unauthorized users.

COPYPRIGHT

LAW ENFORCEMENT TRAINING LLC

2022

OFFICERS QUESTIONS — OUR ANSWERS

Q

Are officers ever under any obligation to serve an arrest warrant?

We had someone come to our police department recently and report that there was a wanted subject currently at a residence in our jurisdiction. We confirmed the subject had two active felony warrants out for his arrest, had a history of flight/resisting arrest, and was known to carry a firearm on him. Additionally, the location he was said to be at was a known drug house and had cameras covering the outside. I work in a small town, and there were only two officers on duty at the time we received this tip. We decided not to serve the warrant that day because we did not feel we had enough manpower, not to mention we did not feel we had the proper training/equipment to serve a high-risk warrant safely. We ended up calling the Marshal Service, they adopted the warrant, and they located the subject two days later and took him into custody.

Was this the correct decision from a legal perspective?

A

Thank you for your question. This is our answer- from one of our great CourtSmart attorneys, who is also a police officer:

Here is the Illinois statute that addresses the officer's question:

725 ILCS 5/107-16

Sec. 107-16. Apprehension of offender. It is the duty of every sheriff, coroner, and every marshal, policeman, or other officers of an incorporated city, town, or village, having the power of a sheriff, when a criminal offense or breach of the peace is committed or attempted in his or her presence, forthwith to apprehend the offender and bring him or her before a judge, to be dealt with according to law; to suppress all riots and unlawful assemblies, and to keep the peace, and without delay to serve and execute all warrants and other process to him or her lawfully directed.

(Source: P.A. 89-234, eff. 1-1-96.)

So, what does "without delay" mean? Since day one, as a police officer, I was trained that an officer makes an arrest when the officer decides it is the best tactical time and place to make the arrest. I don't know of any case law on this, but we do have a new amendment to our Illinois Use of Force by a Peace Officer statute that states this:

720 ILCS 5/ 7-5(d)

Peace officers shall use deadly force only when reasonably necessary in defense of human life. In determining whether deadly force is reasonably necessary, officers shall evaluate each situation in light of the totality of circumstances of each case, including, but not limited to, the proximity in time of the use of force to the commission of a forcible felony, and the reasonable feasibility of safely apprehending a subject at a later time, and shall use other available resources and techniques, if reasonably safe and feasible to a reasonable officer.

(Source: P.A. 89-234, eff. 1-1-96.)

The last line of this statute says it all..."and the reasonable feasibility of safely apprehending the subject at a later time". The officer made a very wise decision that is supported by our "de-escalation" statute. He weighed the Totality of the Circumstances (another phrase that is in the new Use of Force Statute) and decided to arrest the subject later when other available resources andvtechniques (here, a special warrant team) were available. When an officer has the authority to arrest an individual, the officer should always consider the best time/ place/ means to make the arrest.

Most of the time, the crime happens in the officer's presence, and the arrest is immediate. However, in the case of an arrest warrant, the officer MUST consider the factors involved in the case. Violent offenders in areas that may be fortified may certainly call for a special arrest warrant team that is specially trained to handle high-risk warrant service. If this is the case, the team will get briefed and choose the most appropriate time and method to execute the arrest warrant. In this regard, I would interpret this as being done "without delay."

Q

In addressing United States v. Cole, 7th Circuit Court of Appeals, 2021, you stated in the training tips that "The 7th Circuit consists of Illinois, Indiana, and Wisconsin, but Illinois state courts technically don't have to follow this decision -- and probably won't." I do not understand that, as I was under the impression that a state's officers and courts had to be responsive to their Circuit Court's decisions, but not the decisions of other Circuit Courts. Since it seems I have misunderstood, I would appreciate some clarification on how that actually works.

A

The United States v. Cole opinion is a CRIMINAL decision from the federal court of appeals. Illinois law states that Illinois state courts are not bound by decisions of the federal courts even in the same area (district). So, while the federal opinion is not binding, meaning Illinois courts do not have to follow it, it is considered persuasive authority. However, even if the case is considered to be persuasive authority, Illinois courts are still free to reject the decision and are not legally obligated to follow the federal decision.


However, all police officers have to follow the 7th Circuit Court of Appeals decisions on section 1983 lawsuits.


All courts, whether federal or state, are bound by decisions of the United States Supreme Court interpreting the U.S. Constitution and federal law.

Q

Recently, our officers were conducting a traffic stop. While speaking with the driver, the interior of the vehicle smelled of burnt cannabis. The driver ultimately refused to step out of the vehicle and fled the scene after being told he was under arrest for obstructing. The driver did not hold a cannabis card. Is the smell of burnt cannabis coming from within a vehicle still give probable cause for a vehicle search given the new cannabis laws in Illinois? Thank you.

A

In our September 2021 edition of CourtSmart, we discussed the case of People v Lindsay. In Lindsay, the court found that the smell of cannabis gave the officers probable cause to search the car. While both the United States Supreme Court and the Illinois Supreme Court have had the opportunity to decide whether the smell of cannabis alone is sufficient to search a car, both courts have decided not to answer that specific question.


At this time, the case of People v Stout, found in The Illinois Officer’s Legal Source Book, Volume I, page 286, still is controlling law. That is a decision by the Illinois Supreme Court that held the smell of cannabis is enough to provide probable cause to search a car.


We have stated that the recent case of People v. Hill, page 286-287, (a decision by the Illinois Supreme Court) did not specifically address the issue of whether the smell of cannabis alone is sufficient to provide probable cause to search a car. Rather, the court noted in a footnote that the smell of cannabis is a factor in the totality of the circumstances known to the officer. We have stated that officers should try and get as much information as possible to give them probable cause to search a car when they smell cannabis.


However, until the Stout case is overruled, the smell of cannabis still gives the police probable cause to search a car. We would still caution officers to try to obtain as much information as possible when they do smell cannabis- furtive movements, admissions to using cannabis, the sight of cannabis in the car, etc.

AUTISM: FACTS, AWARENESS AND IDEAS

April is World Autism Month, dedicated to increasing awareness about Autism Spectrum Disorder, with Saturday, April 2nd being World Autism day. Autism is defined as:

a developmental disorder of variable severity that is characterized by difficulty in social interaction and communication and by restricted or repetitive patterns of thought and behavior.

Oxford Dictionary

Autism is a medical condition. Why do I, as a law enforcement officer, need to know about this?

September of 2021, Georgia police tased a 21-year-old non-verbal autistic man six times.

In 2017, an officer in Arizona, who was certified in drug recognition expertise, tackled, slammed against a tree, and pinned to the ground a 14-year-old autistic child he believed to be exhibiting signs of drug-related behavior. He released the traumatized boy only after a caretaker intervened.

USA Today

On July 18, 2016, Charles Kinsey, a mental health therapist, was shot in the leg by a police officer in North Miami, Florida. Kinsey had been retrieving his 27-year-old autistic patient, Arnaldo Rios Soto, who had run away from his group home.

NPR Scott Neuman

“Louisiana cop gets 40 years in shooting death of 6-year-old autistic boy.” -

Associated Press

Failure to train in recognition and best approaches to handling persons within the Autism Spectrum could be considered deliberately indifferent. Discussed in Canton v. Harris. Deliberate indifference could put you and your agency at risk for not only civil liability, but also criminal for civil rights violation(s). This is also a case in which police qualified immunity claims are being looked at closely by the courts.

One in 125 children in 2010 vs. 1 in 59 in 2020. While this number is debated on the inclusion of Asperger’s Syndrome into the count, as well as better diagnoses, the fact remains, a fair amount of our populations fall within the Autism Spectrum.

More Often Victims

People with ASD (Autism Spectrum Disorder) are more likely to be victimized than other people (Mansell, Sobsey, Wigosh, & Zawallich,). Children and adults are often sexually assaulted by predators who view them as easy marks.

Because of their impaired ability to communicate and socially interact, people with ASD may be more likely to be victims of institutional abuse in group homes, treatment facilities, nursing homes, schools, hospitals, and residential facilities. Children and adults with ASD are often bullied due to their unique social characteristics. On the street, criminals sometimes take them as easy marks for robbery, pick-pocketing, and other property crimes. They might also be used as drug mules, for retail theft, and otherwise intentionally placed in dangerous situations that they are not aware of.

(Debbaudt & Legacy, 2004).

Increased Personal Danger

A person with ASD experiences the world differently and learns differently than a neurotypical (average) person. That’s one reason why they are likely to have an alternative sense of fear.

They are often attracted to bodies of water and have no fear of drowning (Debbaudt & Legacy, 2004). Certain sounds and sights, or perhaps even some odors or textures, may frighten them, but at the same time, they might have no fear of opening a door in a moving car or darting into heavy traffic. Wandering off is a big problem with children and some adults as well.

So what can we, as first responders, do to aid in our assisting and interaction with persons with ASD as well as their caregivers?

Verbal Communication

While about half of all people with ASD are nonverbal, most understand to some degree or even a great deal, as long as you’re interacting with their primary language. This language may be in the form of spoken, sign or through the use of Autism Flashcards. Communication should be direct, to the point and allow them a long time to respond. Use pauses after questions, and offer praise when they comply.

Do not ask leading questions.

Persons with ASD will often have a very literal interpretation of words, thoughts, and actions. For example, if an officer says, “show me your hands,” a person with ASD may begin to walk quickly towards the officer while quickly putting his hands directly at you. They are attempting to comply but in a literal manner. Avoid using metaphors. Ask yourself, “does what I’m about to say mean the same thing to a person who only hears the literal phrase?” Address them directly, and by their first name, if known. Avoid being too close, and be aware that lack of eye contact is not a sign of disrespect. Know that people with ASD will often be drawn to shiny objects, such as your badge. Some are very tactile, and some touching of certain textures may cause them distress and/or comfort. Think of how you can reduce sensory overload by the person with ASD that could inhibit communication or create a reaction that appears to be one of violence to themselves or another. Avoid sirens, barking dogs, loud radios etc. They may also have an aversion to flashing lights or any overstimulating visual stimuli. Gain as much information on persons with ASD from their caregivers. The caregivers will know the best way of assisting a person with ASD, which is tailored to their loved one. This is learned over the years through trial and error.

Some common behavior and medical concerns you should know about people with ASD. Biting can often be used as a defense if they are in fear, be sure to utilize distance and a below-the line of sight barrier, if possible. People with ASD are 40% more prone to seizures. Persons with ASD are often hypotonic (low muscle tone), more easily bruised, bones broken, and at a greater risk of internal bleeding. Due to this low muscle tone, they are at a greater risk of having difficulty breathing under stress. This needs to be taken into account, when safe, handcuff placement, time until they are put into a recovery position (not laying down on their diaphragm) and how they are transported. Use of an ambulance for transport may be safest for both the person as well as yourself. Often persons with ASD will have an altered sense of pain, use of control tactics, OC, and impact weapons may not gain compliance as desired and can lead to a more serious injury to the person. Their adrenaline levels tend to stay up higher, for longer periods of time, so allow extra time for them to calm down.

Suggested Strategies for officers and their agencies.

Conduct training on how to respond to calls for people with Autism and common calls associated with ASD persons. Establish communication and identification of those living in your community with Autism and their caregivers. The caregivers are your best source of information for handling calls with ASD individuals. Seek to develop programs similar to Ohio’s Communication Disability Law which allows people with special needs in your community to register, so law enforcement knows before arriving a person may have ASD or have another impairment, such as being deaf.

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CourtSmart

April 2022 Examination Session

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

Alexander Hamilton

Oak Brook

PTBID: 123456789

1

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

2

In the Taylor v. Hughes case, the 7th Circuit Court of Appeals found that the officer made reckless misrepresentations of fact.

True

False

3

When handling a call with a person with ASD an officer should speak slowly, clearly, avoid metaphors and give the person time to think about their answer. To aid in communication the person with ASD can be assisted by removing the noise when possible?

True

False

4

When handling a call with a person with ASD an officer should speak slowly, clearly, avoid metaphors and give the person time to think about their answer. To aid in communication the person with ASD can be assisted by removing the noise when possible?

True

False

5

In the Taylor v. Hughes case, the 7th Circuit Court of Appeals found that the officer made reckless misrepresentations of fact.

True

False

6

In the Taylor v. Hughes case, the 7th Circuit Court of Appeals found that the officer made reckless misrepresentations of fact.

True

False

7

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

8

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

9

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

10

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

Included with your CourtSmart subscription

Monthly Articles

& Exams

Written by a team of attorneys who specialize in constitutional principles of police work.

Answers to scenario based questions from other officers.

Context and summaries of recent court decisions.

Training tips on how to apply these to your daily work.

Exam Passed

CourtSmart

By Law Enforcement Training LLC

April 2022

Editors: Anthony Polse, Stephen Scheller, James Volpe, Renee Weingard

Contents

officers questions—our answers

autism: facts, awareness and ideas

what happens when an officer acts recklessly in obtaining a search warrant?

what are the factors courts will consider to determine whether a confession is voluntary?

when does a police officer have reasonable suspicion to conduct a terry search?

what happens when a person abandons property during an unlawful seizure?

DISCLAIMER

CourtSmart publications are not intended to be legal advice. You should not consider them as such. Rules may be interpreted differently by different attorneys and may change at a moment’s notice. CourtSmart does not create a lawyer-client relationship. You must always check with a competent attorney before proceeding to act on any information or situation encountered. Any & all information in CourtSmart is not a substitute for legal advice which must come instead from your attorney. Detrimental reliance on the materials found in CourtSmart may not be claimed.

REPRODUCTION OR RETRANSMISSION OF MATERIALS IS PROHIBITED. All rights are reserved. The material contained in CourtSmart may not be republished, retransmitted or forwarded without express written consent fromLaw Enforcement Training, LLC. Violation of this copyright may result in subscription cancellation and/or collection of full or partial subscription charges from unauthorized users.

COPYPRIGHT

LAW ENFORCEMENT TRAINING LLC

2022

OFFICERS QUESTIONS — OUR ANSWERS

Q

Are officers ever under any obligation to serve an arrest warrant?

We had someone come to our police department recently and report that there was a wanted subject currently at a residence in our jurisdiction. We confirmed the subject had two active felony warrants out for his arrest, had a history of flight/resisting arrest, and was known to carry a firearm on him. Additionally, the location he was said to be at was a known drug house and had cameras covering the outside. I work in a small town, and there were only two officers on duty at the time we received this tip. We decided not to serve the warrant that day because we did not feel we had enough manpower, not to mention we did not feel we had the proper training/equipment to serve a high-risk warrant safely. We ended up calling the Marshal Service, they adopted the warrant, and they located the subject two days later and took him into custody.

Was this the correct decision from a legal perspective?

A

Thank you for your question. This is our answer- from one of our great CourtSmart attorneys, who is also a police officer:

Here is the Illinois statute that addresses the officer's question:

725 ILCS 5/107-16

Sec. 107-16. Apprehension of offender. It is the duty of every sheriff, coroner, and every marshal, policeman, or other officers of an incorporated city, town, or village, having the power of a sheriff, when a criminal offense or breach of the peace is committed or attempted in his or her presence, forthwith to apprehend the offender and bring him or her before a judge, to be dealt with according to law; to suppress all riots and unlawful assemblies, and to keep the peace, and without delay to serve and execute all warrants and other process to him or her lawfully directed.

(Source: P.A. 89-234, eff. 1-1-96.)

So, what does "without delay" mean? Since day one, as a police officer, I was trained that an officer makes an arrest when the officer decides it is the best tactical time and place to make the arrest. I don't know of any case law on this, but we do have a new amendment to our Illinois Use of Force by a Peace Officer statute that states this:

720 ILCS 5/ 7-5(d)

Peace officers shall use deadly force only when reasonably necessary in defense of human life. In determining whether deadly force is reasonably necessary, officers shall evaluate each situation in light of the totality of circumstances of each case, including, but not limited to, the proximity in time of the use of force to the commission of a forcible felony, and the reasonable feasibility of safely apprehending a subject at a later time, and shall use other available resources and techniques, if reasonably safe and feasible to a reasonable officer.

(Source: P.A. 89-234, eff. 1-1-96.)

The last line of this statute says it all..."and the reasonable feasibility of safely apprehending the subject at a later time". The officer made a very wise decision that is supported by our "de-escalation" statute. He weighed the Totality of the Circumstances (another phrase that is in the new Use of Force Statute) and decided to arrest the subject later when other available resources andvtechniques (here, a special warrant team) were available. When an officer has the authority to arrest an individual, the officer should always consider the best time/ place/ means to make the arrest.

Most of the time, the crime happens in the officer's presence, and the arrest is immediate. However, in the case of an arrest warrant, the officer MUST consider the factors involved in the case. Violent offenders in areas that may be fortified may certainly call for a special arrest warrant team that is specially trained to handle high-risk warrant service. If this is the case, the team will get briefed and choose the most appropriate time and method to execute the arrest warrant. In this regard, I would interpret this as being done "without delay."

Q

In addressing United States v. Cole, 7th Circuit Court of Appeals, 2021, you stated in the training tips that "The 7th Circuit consists of Illinois, Indiana, and Wisconsin, but Illinois state courts technically don't have to follow this decision -- and probably won't." I do not understand that, as I was under the impression that a state's officers and courts had to be responsive to their Circuit Court's decisions, but not the decisions of other Circuit Courts. Since it seems I have misunderstood, I would appreciate some clarification on how that actually works.

A

The United States v. Cole opinion is a CRIMINAL decision from the federal court of appeals. Illinois law states that Illinois state courts are not bound by decisions of the federal courts even in the same area (district). So, while the federal opinion is not binding, meaning Illinois courts do not have to follow it, it is considered persuasive authority. However, even if the case is considered to be persuasive authority, Illinois courts are still free to reject the decision and are not legally obligated to follow the federal decision.


However, all police officers have to follow the 7th Circuit Court of Appeals decisions on section 1983 lawsuits.


All courts, whether federal or state, are bound by decisions of the United States Supreme Court interpreting the U.S. Constitution and federal law.

Q

Recently, our officers were conducting a traffic stop. While speaking with the driver, the interior of the vehicle smelled of burnt cannabis. The driver ultimately refused to step out of the vehicle and fled the scene after being told he was under arrest for obstructing. The driver did not hold a cannabis card. Is the smell of burnt cannabis coming from within a vehicle still give probable cause for a vehicle search given the new cannabis laws in Illinois? Thank you.

A

In our September 2021 edition of CourtSmart, we discussed the case of People v Lindsay. In Lindsay, the court found that the smell of cannabis gave the officers probable cause to search the car. While both the United States Supreme Court and the Illinois Supreme Court have had the opportunity to decide whether the smell of cannabis alone is sufficient to search a car, both courts have decided not to answer that specific question.


At this time, the case of People v Stout, found in The Illinois Officer’s Legal Source Book, Volume I, page 286, still is controlling law. That is a decision by the Illinois Supreme Court that held the smell of cannabis is enough to provide probable cause to search a car.


We have stated that the recent case of People v. Hill, page 286-287, (a decision by the Illinois Supreme Court) did not specifically address the issue of whether the smell of cannabis alone is sufficient to provide probable cause to search a car. Rather, the court noted in a footnote that the smell of cannabis is a factor in the totality of the circumstances known to the officer. We have stated that officers should try and get as much information as possible to give them probable cause to search a car when they smell cannabis.


However, until the Stout case is overruled, the smell of cannabis still gives the police probable cause to search a car. We would still caution officers to try to obtain as much information as possible when they do smell cannabis- furtive movements, admissions to using cannabis, the sight of cannabis in the car, etc.

AUTISM: FACTS, AWARENESS AND IDEAS

April is World Autism Month, dedicated to increasing awareness about Autism Spectrum Disorder, with Saturday, April 2nd being World Autism day. Autism is defined as:

a developmental disorder of variable severity that is characterized by difficulty in social interaction and communication and by restricted or repetitive patterns of thought and behavior.

Oxford Dictionary

Autism is a medical condition. Why do I, as a law enforcement officer, need to know about this?

September of 2021, Georgia police tased a 21-year-old non-verbal autistic man six times.

In 2017, an officer in Arizona, who was certified in drug recognition expertise, tackled, slammed against a tree, and pinned to the ground a 14-year-old autistic child he believed to be exhibiting signs of drug-related behavior. He released the traumatized boy only after a caretaker intervened.

USA Today

On July 18, 2016, Charles Kinsey, a mental health therapist, was shot in the leg by a police officer in North Miami, Florida. Kinsey had been retrieving his 27-year-old autistic patient, Arnaldo Rios Soto, who had run away from his group home.

NPR Scott Neuman

“Louisiana cop gets 40 years in shooting death of 6-year-old autistic boy.” -

Associated Press

Failure to train in recognition and best approaches to handling persons within the Autism Spectrum could be considered deliberately indifferent. Discussed in Canton v. Harris. Deliberate indifference could put you and your agency at risk for not only civil liability, but also criminal for civil rights violation(s). This is also a case in which police qualified immunity claims are being looked at closely by the courts.

One in 125 children in 2010 vs. 1 in 59 in 2020. While this number is debated on the inclusion of Asperger’s Syndrome into the count, as well as better diagnoses, the fact remains, a fair amount of our populations fall within the Autism Spectrum.

More Often Victims

People with ASD (Autism Spectrum Disorder) are more likely to be victimized than other people (Mansell, Sobsey, Wigosh, & Zawallich,). Children and adults are often sexually assaulted by predators who view them as easy marks.

Because of their impaired ability to communicate and socially interact, people with ASD may be more likely to be victims of institutional abuse in group homes, treatment facilities, nursing homes, schools, hospitals, and residential facilities. Children and adults with ASD are often bullied due to their unique social characteristics. On the street, criminals sometimes take them as easy marks for robbery, pick-pocketing, and other property crimes. They might also be used as drug mules, for retail theft, and otherwise intentionally placed in dangerous situations that they are not aware of.

(Debbaudt & Legacy, 2004).

Increased Personal Danger

A person with ASD experiences the world differently and learns differently than a neurotypical (average) person. That’s one reason why they are likely to have an alternative sense of fear.

They are often attracted to bodies of water and have no fear of drowning (Debbaudt & Legacy, 2004). Certain sounds and sights, or perhaps even some odors or textures, may frighten them, but at the same time, they might have no fear of opening a door in a moving car or darting into heavy traffic. Wandering off is a big problem with children and some adults as well.

So what can we, as first responders, do to aid in our assisting and interaction with persons with ASD as well as their caregivers?

Verbal Communication

While about half of all people with ASD are nonverbal, most understand to some degree or even a great deal, as long as you’re interacting with their primary language. This language may be in the form of spoken, sign or through the use of Autism Flashcards. Communication should be direct, to the point and allow them a long time to respond. Use pauses after questions, and offer praise when they comply.

Do not ask leading questions.

Persons with ASD will often have a very literal interpretation of words, thoughts, and actions. For example, if an officer says, “show me your hands,” a person with ASD may begin to walk quickly towards the officer while quickly putting his hands directly at you. They are attempting to comply but in a literal manner. Avoid using metaphors. Ask yourself, “does what I’m about to say mean the same thing to a person who only hears the literal phrase?” Address them directly, and by their first name, if known. Avoid being too close, and be aware that lack of eye contact is not a sign of disrespect. Know that people with ASD will often be drawn to shiny objects, such as your badge. Some are very tactile, and some touching of certain textures may cause them distress and/or comfort. Think of how you can reduce sensory overload by the person with ASD that could inhibit communication or create a reaction that appears to be one of violence to themselves or another. Avoid sirens, barking dogs, loud radios etc. They may also have an aversion to flashing lights or any overstimulating visual stimuli. Gain as much information on persons with ASD from their caregivers. The caregivers will know the best way of assisting a person with ASD, which is tailored to their loved one. This is learned over the years through trial and error.

Some common behavior and medical concerns you should know about people with ASD. Biting can often be used as a defense if they are in fear, be sure to utilize distance and a below-the line of sight barrier, if possible. People with ASD are 40% more prone to seizures. Persons with ASD are often hypotonic (low muscle tone), more easily bruised, bones broken, and at a greater risk of internal bleeding. Due to this low muscle tone, they are at a greater risk of having difficulty breathing under stress. This needs to be taken into account, when safe, handcuff placement, time until they are put into a recovery position (not laying down on their diaphragm) and how they are transported. Use of an ambulance for transport may be safest for both the person as well as yourself. Often persons with ASD will have an altered sense of pain, use of control tactics, OC, and impact weapons may not gain compliance as desired and can lead to a more serious injury to the person. Their adrenaline levels tend to stay up higher, for longer periods of time, so allow extra time for them to calm down.

Suggested Strategies for officers and their agencies.

Conduct training on how to respond to calls for people with Autism and common calls associated with ASD persons. Establish communication and identification of those living in your community with Autism and their caregivers. The caregivers are your best source of information for handling calls with ASD individuals. Seek to develop programs similar to Ohio’s Communication Disability Law which allows people with special needs in your community to register, so law enforcement knows before arriving a person may have ASD or have another impairment, such as being deaf.

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CourtSmart

April 2022 Examination Session

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

Alexander Hamilton

Oak Brook

PTBID: 123456789

1

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

2

In the Taylor v. Hughes case, the 7th Circuit Court of Appeals found that the officer made reckless misrepresentations of fact.

True

False

3

When handling a call with a person with ASD an officer should speak slowly, clearly, avoid metaphors and give the person time to think about their answer. To aid in communication the person with ASD can be assisted by removing the noise when possible?

True

False

4

When handling a call with a person with ASD an officer should speak slowly, clearly, avoid metaphors and give the person time to think about their answer. To aid in communication the person with ASD can be assisted by removing the noise when possible?

True

False

5

In the Taylor v. Hughes case, the 7th Circuit Court of Appeals found that the officer made reckless misrepresentations of fact.

True

False

6

In the Taylor v. Hughes case, the 7th Circuit Court of Appeals found that the officer made reckless misrepresentations of fact.

True

False

7

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

8

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

9

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

10

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

Included with your CourtSmart subscription

Monthly articles & exams

Written by a team of attorneys who specialize in constitutional principles of police work.

Answers to scenario based questions from other officers

Context and summaries of recent court decisions

Training tips on how to apply these to your daily work

Exam Passed

CourtSmart

By Law Enforcement Training LLC

April 2022

Editors: Anthony Polse, Stephen Scheller, James Volpe, Renee Weingard

Contents

officers questions—our answers

autism: facts, awareness and ideas

what happens when an officer acts recklessly in obtaining a search warrant?

what are the factors courts will consider to determine whether a confession is voluntary?

when does a police officer have reasonable suspicion to conduct a terry search?

what happens when a person abandons property during an unlawful seizure?

DISCLAIMER

CourtSmart publications are not intended to be legal advice. You should not consider them as such. Rules may be interpreted differently by different attorneys and may change at a moment’s notice. CourtSmart does not create a lawyer-client relationship. You must always check with a competent attorney before proceeding to act on any information or situation encountered. Any & all information in CourtSmart is not a substitute for legal advice which must come instead from your attorney. Detrimental reliance on the materials found in CourtSmart may not be claimed.

REPRODUCTION OR RETRANSMISSION OF MATERIALS IS PROHIBITED. All rights are reserved. The material contained in CourtSmart may not be republished, retransmitted or forwarded without express written consent fromLaw Enforcement Training, LLC. Violation of this copyright may result in subscription cancellation and/or collection of full or partial subscription charges from unauthorized users.

COPYPRIGHT

LAW ENFORCEMENT TRAINING LLC

2022

OFFICERS QUESTIONS — OUR ANSWERS

Q

Are officers ever under any obligation to serve an arrest warrant?

We had someone come to our police department recently and report that there was a wanted subject currently at a residence in our jurisdiction. We confirmed the subject had two active felony warrants out for his arrest, had a history of flight/resisting arrest, and was known to carry a firearm on him. Additionally, the location he was said to be at was a known drug house and had cameras covering the outside. I work in a small town, and there were only two officers on duty at the time we received this tip. We decided not to serve the warrant that day because we did not feel we had enough manpower, not to mention we did not feel we had the proper training/equipment to serve a high-risk warrant safely. We ended up calling the Marshal Service, they adopted the warrant, and they located the subject two days later and took him into custody.

Was this the correct decision from a legal perspective?

A

Thank you for your question. This is our answer- from one of our great CourtSmart attorneys, who is also a police officer:

Here is the Illinois statute that addresses the officer's question:

725 ILCS 5/107-16

Sec. 107-16. Apprehension of offender. It is the duty of every sheriff, coroner, and every marshal, policeman, or other officers of an incorporated city, town, or village, having the power of a sheriff, when a criminal offense or breach of the peace is committed or attempted in his or her presence, forthwith to apprehend the offender and bring him or her before a judge, to be dealt with according to law; to suppress all riots and unlawful assemblies, and to keep the peace, and without delay to serve and execute all warrants and other process to him or her lawfully directed.

(Source: P.A. 89-234, eff. 1-1-96.)

So, what does "without delay" mean? Since day one, as a police officer, I was trained that an officer makes an arrest when the officer decides it is the best tactical time and place to make the arrest. I don't know of any case law on this, but we do have a new amendment to our Illinois Use of Force by a Peace Officer statute that states this:

720 ILCS 5/ 7-5(d)

Peace officers shall use deadly force only when reasonably necessary in defense of human life. In determining whether deadly force is reasonably necessary, officers shall evaluate each situation in light of the totality of circumstances of each case, including, but not limited to, the proximity in time of the use of force to the commission of a forcible felony, and the reasonable feasibility of safely apprehending a subject at a later time, and shall use other available resources and techniques, if reasonably safe and feasible to a reasonable officer.

(Source: P.A. 89-234, eff. 1-1-96.)

The last line of this statute says it all..."and the reasonable feasibility of safely apprehending the subject at a later time". The officer made a very wise decision that is supported by our "de-escalation" statute. He weighed the Totality of the Circumstances (another phrase that is in the new Use of Force Statute) and decided to arrest the subject later when other available resources andvtechniques (here, a special warrant team) were available. When an officer has the authority to arrest an individual, the officer should always consider the best time/ place/ means to make the arrest.

Most of the time, the crime happens in the officer's presence, and the arrest is immediate. However, in the case of an arrest warrant, the officer MUST consider the factors involved in the case. Violent offenders in areas that may be fortified may certainly call for a special arrest warrant team that is specially trained to handle high-risk warrant service. If this is the case, the team will get briefed and choose the most appropriate time and method to execute the arrest warrant. In this regard, I would interpret this as being done "without delay."

Q

In addressing United States v. Cole, 7th Circuit Court of Appeals, 2021, you stated in the training tips that "The 7th Circuit consists of Illinois, Indiana, and Wisconsin, but Illinois state courts technically don't have to follow this decision -- and probably won't." I do not understand that, as I was under the impression that a state's officers and courts had to be responsive to their Circuit Court's decisions, but not the decisions of other Circuit Courts. Since it seems I have misunderstood, I would appreciate some clarification on how that actually works.

A

The United States v. Cole opinion is a CRIMINAL decision from the federal court of appeals. Illinois law states that Illinois state courts are not bound by decisions of the federal courts even in the same area (district). So, while the federal opinion is not binding, meaning Illinois courts do not have to follow it, it is considered persuasive authority. However, even if the case is considered to be persuasive authority, Illinois courts are still free to reject the decision and are not legally obligated to follow the federal decision.


However, all police officers have to follow the 7th Circuit Court of Appeals decisions on section 1983 lawsuits.


All courts, whether federal or state, are bound by decisions of the United States Supreme Court interpreting the U.S. Constitution and federal law.

Q

Recently, our officers were conducting a traffic stop. While speaking with the driver, the interior of the vehicle smelled of burnt cannabis. The driver ultimately refused to step out of the vehicle and fled the scene after being told he was under arrest for obstructing. The driver did not hold a cannabis card. Is the smell of burnt cannabis coming from within a vehicle still give probable cause for a vehicle search given the new cannabis laws in Illinois? Thank you.

A

In our September 2021 edition of CourtSmart, we discussed the case of People v Lindsay. In Lindsay, the court found that the smell of cannabis gave the officers probable cause to search the car. While both the United States Supreme Court and the Illinois Supreme Court have had the opportunity to decide whether the smell of cannabis alone is sufficient to search a car, both courts have decided not to answer that specific question.


At this time, the case of People v Stout, found in The Illinois Officer’s Legal Source Book, Volume I, page 286, still is controlling law. That is a decision by the Illinois Supreme Court that held the smell of cannabis is enough to provide probable cause to search a car.


We have stated that the recent case of People v. Hill, page 286-287, (a decision by the Illinois Supreme Court) did not specifically address the issue of whether the smell of cannabis alone is sufficient to provide probable cause to search a car. Rather, the court noted in a footnote that the smell of cannabis is a factor in the totality of the circumstances known to the officer. We have stated that officers should try and get as much information as possible to give them probable cause to search a car when they smell cannabis.


However, until the Stout case is overruled, the smell of cannabis still gives the police probable cause to search a car. We would still caution officers to try to obtain as much information as possible when they do smell cannabis- furtive movements, admissions to using cannabis, the sight of cannabis in the car, etc.

AUTISM: FACTS, AWARENESS AND IDEAS

April is World Autism Month, dedicated to increasing awareness about Autism Spectrum Disorder, with Saturday, April 2nd being World Autism day. Autism is defined as:

a developmental disorder of variable severity that is characterized by difficulty in social interaction and communication and by restricted or repetitive patterns of thought and behavior.

Oxford Dictionary

Autism is a medical condition. Why do I, as a law enforcement officer, need to know about this?

September of 2021, Georgia police tased a 21-year-old non-verbal autistic man six times.

In 2017, an officer in Arizona, who was certified in drug recognition expertise, tackled, slammed against a tree, and pinned to the ground a 14-year-old autistic child he believed to be exhibiting signs of drug-related behavior. He released the traumatized boy only after a caretaker intervened.

USA Today

On July 18, 2016, Charles Kinsey, a mental health therapist, was shot in the leg by a police officer in North Miami, Florida. Kinsey had been retrieving his 27-year-old autistic patient, Arnaldo Rios Soto, who had run away from his group home.

NPR Scott Neuman

“Louisiana cop gets 40 years in shooting death of 6-year-old autistic boy.” -

Associated Press

Failure to train in recognition and best approaches to handling persons within the Autism Spectrum could be considered deliberately indifferent. Discussed in Canton v. Harris. Deliberate indifference could put you and your agency at risk for not only civil liability, but also criminal for civil rights violation(s). This is also a case in which police qualified immunity claims are being looked at closely by the courts.

One in 125 children in 2010 vs. 1 in 59 in 2020. While this number is debated on the inclusion of Asperger’s Syndrome into the count, as well as better diagnoses, the fact remains, a fair amount of our populations fall within the Autism Spectrum.

More Often Victims

People with ASD (Autism Spectrum Disorder) are more likely to be victimized than other people (Mansell, Sobsey, Wigosh, & Zawallich,). Children and adults are often sexually assaulted by predators who view them as easy marks.

Because of their impaired ability to communicate and socially interact, people with ASD may be more likely to be victims of institutional abuse in group homes, treatment facilities, nursing homes, schools, hospitals, and residential facilities. Children and adults with ASD are often bullied due to their unique social characteristics. On the street, criminals sometimes take them as easy marks for robbery, pick-pocketing, and other property crimes. They might also be used as drug mules, for retail theft, and otherwise intentionally placed in dangerous situations that they are not aware of.

(Debbaudt & Legacy, 2004).

Increased Personal Danger

A person with ASD experiences the world differently and learns differently than a neurotypical (average) person. That’s one reason why they are likely to have an alternative sense of fear.

They are often attracted to bodies of water and have no fear of drowning (Debbaudt & Legacy, 2004). Certain sounds and sights, or perhaps even some odors or textures, may frighten them, but at the same time, they might have no fear of opening a door in a moving car or darting into heavy traffic. Wandering off is a big problem with children and some adults as well.

So what can we, as first responders, do to aid in our assisting and interaction with persons with ASD as well as their caregivers?

Verbal Communication

While about half of all people with ASD are nonverbal, most understand to some degree or even a great deal, as long as you’re interacting with their primary language. This language may be in the form of spoken, sign or through the use of Autism Flashcards. Communication should be direct, to the point and allow them a long time to respond. Use pauses after questions, and offer praise when they comply.

Do not ask leading questions.

Persons with ASD will often have a very literal interpretation of words, thoughts, and actions. For example, if an officer says, “show me your hands,” a person with ASD may begin to walk quickly towards the officer while quickly putting his hands directly at you. They are attempting to comply but in a literal manner. Avoid using metaphors. Ask yourself, “does what I’m about to say mean the same thing to a person who only hears the literal phrase?” Address them directly, and by their first name, if known. Avoid being too close, and be aware that lack of eye contact is not a sign of disrespect. Know that people with ASD will often be drawn to shiny objects, such as your badge. Some are very tactile, and some touching of certain textures may cause them distress and/or comfort. Think of how you can reduce sensory overload by the person with ASD that could inhibit communication or create a reaction that appears to be one of violence to themselves or another. Avoid sirens, barking dogs, loud radios etc. They may also have an aversion to flashing lights or any overstimulating visual stimuli. Gain as much information on persons with ASD from their caregivers. The caregivers will know the best way of assisting a person with ASD, which is tailored to their loved one. This is learned over the years through trial and error.

Some common behavior and medical concerns you should know about people with ASD. Biting can often be used as a defense if they are in fear, be sure to utilize distance and a below-the line of sight barrier, if possible. People with ASD are 40% more prone to seizures. Persons with ASD are often hypotonic (low muscle tone), more easily bruised, bones broken, and at a greater risk of internal bleeding. Due to this low muscle tone, they are at a greater risk of having difficulty breathing under stress. This needs to be taken into account, when safe, handcuff placement, time until they are put into a recovery position (not laying down on their diaphragm) and how they are transported. Use of an ambulance for transport may be safest for both the person as well as yourself. Often persons with ASD will have an altered sense of pain, use of control tactics, OC, and impact weapons may not gain compliance as desired and can lead to a more serious injury to the person. Their adrenaline levels tend to stay up higher, for longer periods of time, so allow extra time for them to calm down.

Suggested Strategies for officers and their agencies.

Conduct training on how to respond to calls for people with Autism and common calls associated with ASD persons. Establish communication and identification of those living in your community with Autism and their caregivers. The caregivers are your best source of information for handling calls with ASD individuals. Seek to develop programs similar to Ohio’s Communication Disability Law which allows people with special needs in your community to register, so law enforcement knows before arriving a person may have ASD or have another impairment, such as being deaf.

Leave an evaluation score for this article to unlock the exam. From 1 to 5, how would you rate this article?

Poor

1


2


3


4

Excellent

5

Take the Exam

CourtSmart

April 2022 Examination Session

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

Alexander Hamilton

Oak Brook

PTBID: 123456789

1

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

2

In the Taylor v. Hughes case, the 7th Circuit Court of Appeals found that the officer made reckless misrepresentations of fact.

True

False

3

When handling a call with a person with ASD an officer should speak slowly, clearly, avoid metaphors and give the person time to think about their answer. To aid in communication the person with ASD can be assisted by removing the noise when possible?

True

False

4

When handling a call with a person with ASD an officer should speak slowly, clearly, avoid metaphors and give the person time to think about their answer. To aid in communication the person with ASD can be assisted by removing the noise when possible?

True

False

5

In the Taylor v. Hughes case, the 7th Circuit Court of Appeals found that the officer made reckless misrepresentations of fact.

True

False

6

In the Taylor v. Hughes case, the 7th Circuit Court of Appeals found that the officer made reckless misrepresentations of fact.

True

False

7

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

8

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

9

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

10

Persons with ASD are at a greater risk of being the victims of crimes than the general population?

True

False

Congratulations

Alexander Johnson

You received a passing score for the May 2021 CourtSmart.

Your information is eligible to be certified for the selected mandates:

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

April 21st 2022

Completion Date

12345

PTBID

Congratulations

Alexander Johnson

You received a passing score for the May 2021 CourtSmart.

Your information is eligible to be certified for the selected mandates:

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

April 21st 2022

Completion Date

12345

PTBID

Congratulations

Alexander Johnson

You received a passing score for the May 2021 CourtSmart.

Your information is eligible to be certified for the selected mandates:

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

April 21st 2022

Completion Date

12345

PTBID

Training mandate

certification

Our monthly CourtSmart article and exam earn your officers training mandate credit. We work with your MTU, and ultimately ILETSB for select mandate approval.

Civil Rights

Constitutional Use of LE Authority

Legal Updates

Officer Wellness & Mental Health

Human Rights

Procedural Justice

Use of Force

Included with your CourtSmart subscription

Congratulations

Alexander Johnson

You received a passing score for the May 2021 CourtSmart.

Your information is eligible to be certified for the selected mandates:

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

April 21st 2022

Completion Date

12345

PTBID

Congratulations

Alexander Johnson

You received a passing score for the May 2021 CourtSmart.

Your information is eligible to be certified for the selected mandates:

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

April 21st 2022

Completion Date

12345

PTBID

Congratulations

Alexander Johnson

You received a passing score for the May 2021 CourtSmart.

Your information is eligible to be certified for the selected mandates:

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

April 21st 2022

Completion Date

12345

PTBID

Training mandate

certification

Our monthly CourtSmart article and exam earn your officers training mandate credit. We work with your MTU, and ultimately ILETSB for select mandate approval.

Civil Rights

Constitutional Use of LE Authority

Legal Updates

Officer Wellness & Mental Health

Human Rights

Procedural Justice

Use of Force

Congratulations

Alexander Johnson

You received a passing score for the May 2021 CourtSmart.

Your information is eligible to be certified for the selected mandates:

Constitutional and Proper Use of Law Enforcement

Crisis Intervention

April 21st 2022

Completion Date

12345

PTBID

Training mandate

certification

Our monthly CourtSmart article and exam earn your officers training mandate credit. We work with your MTU, and ultimately ILETSB for select mandate approval.

Civil Rights

Constitutional Use of LE Authority

Legal Updates

Officer Wellness & Mental Health

Human Rights

Procedural Justice

Use of Force

Legal source books

The most comprehensive state specific constitutional law book that guides officers on the rules of their job as defined by the state and federal courts.

Constitutional criminal procedure

Search and seizure

Interviews and interrogations

Physical lineups

Testifying

Civil liability

Report writing

The Arizona Officer’s Legal Source Book

by

Dale Anderson & Anthony A. Polse

The Peace Officer’s Bible

Illinois Legal Source Books

by

Dale Anderson & Anthony A. Polse

The Peace Officer’s Bible

Included with your CourtSmart subscription

Legal source books

The most comprehensive state specific constitutional law book that guides officers on the rules of their job as defined by the state and federal courts.

Constitutional criminal procedure

Search and seizure

Interviews and interrogations

Physical lineups

Testifying