The law blog of Aurora attorney Mike Huseman, featuring practice updates authored by Northern Illinois University College of Law alumni, as well as guest contributions from non-NIU lawyers and law students.
Wednesday, March 30, 2011
8500 Billable Hours
Saturday, March 26, 2011
Fisher and Shapiro's Cases Suspended
Wednesday, March 16, 2011
Dismissals for Want of Prosecution
Is Contraband "Concealed" When Officers Know Where It is and Can Easily Obtain It?
The Illinois Supreme Court, in People v. Comage, No. 109495, slip op. (February 25, 2011), was asked to decide "whether certain physical evidence was 'concealed' within the meaning of Illinois' obstructing justice statute when police officers knew where the evidence was and had no difficulty recovering it, but the evidence was out of the officers' sight for approximately 20 seconds." Id. at 1.
In Comage, an officer was investigating a theft at a gas station when he spotted a subject who matched a description of the thief in a McDonald's parking lot. Id. at 2. The man ran from the McDonald's parking lot to a Pizza Hut parking lot, where the officer stopped the man and performed a warrant check. Id. at 2-3. Meanwhile, defendant was "jumping around, fidgeting, and at one point, threatening to urinate on the squad car." Id. As the dispatcher was reporting the results of the warrant check, the defendant "took off running through the parking lot, where "both officers saw defendant reach into his pocket, pull out two rod-like objects that were five to six inches in length, and throw them over a six-foot-tall, wooden privacy fence that abutted the Pizza Hut parking lot." Comage, No. 109495, slip op. at 3. Defendant stopped running after an officer threatened to use her taser on him. See id. One of the officers "testified that he clearly saw defendant toss items over the fence and that the items were within 10 feet of where defendant was apprehended" and that "he located the items "'twenty seconds' after he went to look for them" by "walk[ing] around to the other side of the fence to recover the objects defendant had thrown." Id.
Defendant was charged with possession of drug paraphernalia, resisting a peace officer, and obstruction of justice under 720 ILCS 5/31-4(a), with the State alleging that he "with the intent to obstruct prosecution of himself for possessing drug paraphernalia, knowingly concealed physical evidence, in that he thew a metal pipe and push-rod over a wooden privacy fence and out of view while being pursued by police." Id. at 2. Defendant was found not guilty of possession of drug paraphernalia but was found guilty of resisting arrest and obstructing justice. Defendant moved for a new trial, which was granted. See id. The State dismissed the resisting arrest charge, but the defendant was again convicted of obstructing justice. Comage, No. 109495, slip op. at 2-3.
The defendant appealed his conviction on the obstructing justice count. See id. at 3. "A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following act: (a) Destroys, alters, conceals, or disguises physical evidence, plants false evidence, furnishes false information[.]" 720 ILCS 5/31-4(a) (West 2006) (emphasis added). On appeal, defendant argued that "the State failed him to prove him guilty beyond a reasonable doubt because the items at issue where never concealed within the meaning of the obstructing justice statute." Id. The issue before the court was whether defendant "concealed" the crack pipe and push rod by throwing it over the fence. See id. at 4. To define "concealed," the court looked to the plain meaning of the word, defined by Webster's as both "to prevent disclosure or recognition of : draw attention from : treat so as to be unnoticed" and "to place out of sight : withdraw from being observed ; shield from vision or notice." Id. at 4 (citing Webster's). Defendant argued that he did not conceal the paraphernalia because he "did not 'withhold knowledge' of the crack pipe and push rod from the police officers." Comage, No. 109495, slip op. at 5. The State, however, argued that the "'word 'conceals' merely conveys that something has been hidden, not that something will remain hidden forever.' Thus…defendant concealed the crack pipe and push rod…" Id.
The court held that the defendant's act of throwing the evidence over a fence into an area that was easily accessible to officers did not constitute "concealment" of the evidence. See id. at 10. The court disagreed with the State's argument, noting that "To construe the word 'conceal' as the State suggests would mean that essentially every possessory offense where the contraband is not in plain view would also constitute the felony offense of obstructing justice." Id. at 8. The court indicated that in order for the evidence to be concealed, it must be a situation where "the defendant actually interferes with the administration of justice, i.e., materially impedes the police officers' investigation." See id. at 9. The court reasoned that "Although the items were briefly out of the officers' sight, defendant did not materially impede the officers' investigation. Accordingly, defendant did not 'conceal' the crack pipe and push rod within the meaning of the obstructing justice statute." Comage, No. 109495, slip op. at 10.
Whether a defendant "conceals" evidence is going to be fact specific. Key to the court's reasoning here was that 1) the officers saw defendant throw the pipe over the fence (so they knew where it was) and 2) the officers could access it (so they knew how to get to it). If the officer 1) knows where the evidence is and 2) knows how to get to it, then he can obtain the evidence and his investigation has not been impeded. The outcome would have been different if, during the chase, defendant was several hundred yards ahead of the officers and out of view and the defendant threw the pipe into a fast-moving river. Then the officer would not know where the evidence was and would not be able to access it. Under these facts, the defendant would probably be found guilty of concealing the evidence under the obstructing justice statute.
Tuesday, March 15, 2011
Fraudulent Intent Required for Objection to Discharge
Friday, March 11, 2011
Amazon.com terminates Illinois-based contracts after Governor Quinn signs "E-fairness" online tax law
Yesterday Illinois Governor Quinn signed a new law that broadens sales tax on online purchases. This new law requires online merchants to collect sales tax on purchases made through business partners based in Illinois. In response, for Illinois-based businesses, Amazon.com has pulled the plug on its Amazon Associates Program, which according to the Wall Street Journal, affects 9,000 websites that refer shoppers to Amazon's site and receive a commission on the purchases.
Additionally, the Performance Marketing Association revealed that the Illinois affiliates generated ad revenue of $611 million in 2009 and $18 million in tax revenue. It's estimated that Illinois will lose up to 30% of the tax revenue, as firms lose business, cut jobs or move out of state.
Amazon.com sent all Illinois-based Associate Program members the following Notice of Contract Termination and will close such accounts as of April 15, 2011.
---------- E-mail message ----------
From: Amazon.com Associates Program
Date: Thu, Mar 10, 2011 at 5:32 PM
Subject: Notice of Contract Termination Due to New Illinois Law
For well over a decade, the Amazon Associates Program has worked with thousands of Illinois residents. Unfortunately, a new state tax law signed by Governor Quinn compels us to terminate this program for Illinois-based participants. It specifically imposes the collection of taxes from consumers on sales by online retailers - including but not limited to those referred by Illinois-based affiliates like you - even if those retailers have no physical presence in the state.
We had opposed this new tax law because it is unconstitutional and counterproductive. It was supported by national retailing chains, most of which are based outside Illinois, that seek to harm the affiliate advertising programs of their competitors. Similar legislation in other states has led to job and income losses, and little, if any, new tax revenue. We deeply regret that its enactment forces this action.
As a result of the new law, contracts with all Illinois affiliates of the Amazon Associates Program will be terminated and those Illinois residents will no longer receive advertising fees for sales referred to Amazon.com, Endless.com, or SmallParts.com. Please be assured that all qualifying advertising fees earned prior to April 15, 2011 will be processed and paid in full in accordance with the regular payment schedule. Based on your account closure date of April 15, 2011, any final payments will be paid by July 1, 2011.
You are receiving this email because our records indicate that you are a resident of Illinois. If you are not currently a permanent resident of Illinois, or if you are relocating to another state in the near future, you can manage the details of your Associates account here. And if you relocate to another state after April 15, please contact us for reinstatement into the Amazon Associates Program.
To be clear, this development will only impact our ability to continue the Associates Program in Illinois, and will not affect the ability of Illinois residents to purchase online at www.amazon.com from Amazon’s retail business.
We have enjoyed working with you and other Illinois-based participants in the Amazon Associates Program and, if this situation is rectified, would very much welcome the opportunity to re-open our Associates Program to Illinois residents.
The Amazon Associates Team
Why an Officer's Mistake of Law Cannot Provide Probable Cause for a Stop
We've all been there. You're driving along the interstate or the highway and the driver in front of you, who had just used his blinker to signal a lane change, forgets to turn off his blinker after he completes the lane change and proceeds to drive the next five to ten miles oblivious to the fact that his right turn signal is still engaged. I think I can speak for most drivers that this is extremely irritating, though I will concede that I have been guilty of doing this myself. However, I never stopped to question whether I could be guilty under the law for leaving my blinker on. The police officer in the Second District's recent decision in People v. Haywood, No. 2-09-1325, slip op. (February 24, 2011) thought that it was a violation of the traffic code to drive to down the road with one's blinker on, but the appellate court thought otherwise.
In Haywood, a police officer pulled defendant over after observing him driving down the road with his blinker on while passing three opportunities to turn right into two driveways and onto a road. See id. Defendant was cited for driving on a suspended license (625 ILCS 5/6-303) and for improper use of a turn signal (625 ILCS 5/11-804(d)). Id. A search of the car incident to defendant's arrest led to the discovery of a controlled substance, for which defendant was charged under 720 ILCS 570/402(c). See id. at 1,3. The court granted defendant's motion to suppress and quash arrest based on the defendant's argument that driving down the road with his blinker on did not give the officer probable cause to pull him over. See id. at 3. The trial court noted that "an officer's mistaken belief that a statute has been violated does not authorize or justify a traffic stop or any subsequent actions. In other words, the court concluded, the State could not claim a good-faith exception to justify the stop." Haywood, No. 2-09-1325, slip op at 3. The State appealed. See id.
Terry v. Ohio "permits a police officer to conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed a crime." Id. at 4 (citations omitted). This crime could be as minor as a traffic violation. See Whren. The first issue that the court had to decide, then, was whether driving down the road with one's blinker on violated 625 ILCS 5/11-804(d). The court held that it did not, reasoning that "While section 11-804(d) requires that a turn signal be used to indicate an intention to turn, change lanes, or start from a parallel-parked position, the plain and ordinary meaning of the statute does not prohibit a driver from activating one turn signal without intending to change direction--as long as the vehicle is not parked or disabled or the driver is not using his turn signal as a 'do pass' signal. There is no evidence in the record that defendant was using his turn signal on one side of a parked or disabled vehicle or as a 'do pass' signal, which are the only types of conduct prohibited by section 11-804(d)." Id. at 6-7.
The State then argued in the alternative that "the traffic stop was objectively reasonable because Deputy Lillge had a good-faith mistaken belief that defendant was committing a traffic violation." Id. at 9. The court, however, held that "'[a] stop based on a subjective belief that a law has been broken, when no violation actually occurred, is not objectively reasonable. McDonald, 453 F.3d at 962. Consistent with McDonald, we conclude that Deputy Lillge's mistaken belief that defendant's conduct amount to a traffic violation did not justify the stop at its inception." Haywood, No. 2-09-1325, slip op. at 11.
There are two interesting points of law that come from this opinion. The first is that driving down the road with your blinker on is not a violation of the Illinois Vehicle Code. But the more interesting point of law, which has a much broader impact on drivers, is that a police officer's good-faith mistaken belief that a traffic violation has occurred does not provide the officer with probable cause to pull the driver over. So on a motion to suppress and quash arrest, the defense lawyer should first determine whether defendant's conduct actually violated the traffic code. If the defendant's conduct did not violate the traffic code, then an officer could not have had valid probable cause to pull defendant over, despite the officer's good-faith belief that the defendant had violated the Code.
Wednesday, March 9, 2011
Is it Inhumane to Keep 87 Cats in Your Two-bedroom Townhouse?
The Second District, in its recent decision in People v. Curtis, No. 2-09-0404, slip op. (February 23, 2011), answers this question with a resounding, "yes," much to the chagrin of animal hoarders in Illinois.
The facts of Curtis seem to be ripped from an episode of Animal Planet's latest series, Confessions: Animal Hoarding. The defendant lived in a "two-bedroom townhouse apartment with 87 cats," five of which were domesticated cats owned by defendant and kept in her bedroom and eighty-two of which were feral cats that "were strays that had come to her door" and lived elsewhere in the townhouse. Id. at 2. Defendant provided the cats with "food, water, and shelter." Id. Defendant eventually called animal control to remove the cats. Id. However, the defendant requested that one of the cats, who personally belonged to defendant, remain separated from the others. Id. This cat "had a respiratory tract infection and was euthanized." Curtis, No. 2-09-0404, slip op. at 2. As a result of her treatment towards that cat, the defendant was charged under 510 ILCS 70/3(c) with "knowingly and unlawfully failing to provide…veterinary care when needed to prevent suffering" and knowingly and unlawfully failing to provide…humane care and treatment" to the cat. Id. at 1-2.
Defendant was found not guilty of failing to provide veterinary care under section 3(c) but guilty of failing to provide humane care and treatment to the cat under section 3(d). Id. at 6. Defendant appealed, arguing, inter alia, that 3(d) was unconstitutionally vague and that the state failed to prove beyond a reasonable doubt that "she did not provide humane care and treatment to her cat." Id.
The court held that 3(d) was not unconstitutionally vague and that defendant was proven guilty beyond a reasonable doubt of failing to provide humane care and treatment of her cat. Id. at 10-11. In reaching its conclusion, the court noted that "'A state is void for vagueness only if it fails to (1) 'provide the kind of notice that would enable a person of ordinary intelligence to understand what conduct is prohibited,' or (2) 'provide explicit standards for those who apply it, thus authorizing or even encouraging arbitrary and discriminatory enforcement.'" Id. at 8 (citing People v. Larson, 379 Ill. App. 3d at 650). The issue, then, was "whether defendant's conduct constituted inhumane care and treatment to cat A209057 [the owner's "special" cat] as a person of ordinary intelligence would understand it." Curtis, No. 2-09-0404, slip op. at 9. To discern the meaning of "inhumane care and treatment," the court looked to the plain meaning of "humane," which is defined as being "marked by compassion, sympathy, or consideration for human and animals." Id. at 10. The court held "Under the plain and ordinary meaning of the statute, law enforcement officers are provided with explicit standards to apply the law in a nondiscriminatory manner." Id. at 11.
The court also held that under the plain meaning of the statute, "Defendant's conduct lacked considerate and compassion for cat A209057, in that it deprived the cat of sanitary living conditions, free of disease" and that she could therefore be prosecuted under the statute "in harmony with due process." Id. The court reasoned that
"the presence of such a significant number of animals in an enclosed space made cat A209057 more susceptible to disease and chronic infection. The evidence showed that the bedroom containing approximately 50 cats smelled strongly of urine and feces and that the residence contained only four litter boxes. Many of the cats suffered infections. Cat A209057 suffered an infection so severe that it led to its demise. Although defendant may have believed that she was saving the stray cats from certain death, a reasonable person would understand that he actions caused A209057 to exist in an unsanitary environment where the cat became so sick that animal control personnel deemed it necessary to euthanize the animal." Id. at 9.
This was a pretty unusual case. Most people do not have 87 cats in their home. And of those who do have many cats, most do not live in a two-bedroom townhouse, but rather in a rural setting where the cats have more space to roam. Furthermore, most people who have many cats have domesticated--not feral--cats. The fact that so many of these cats, many of them feral, lived in such a small space created a dangerous environment where disease was virtually unavoidable. I think that the key factor behind the court's decision here was not that there were dozens of feral cats being housed in a small space, but the fact that having dozens of feral cats in a small space makes disease unavoidable for the cats living there. If the defendant had 87 cats roaming her rural property rather than a small townhouse, the cats would not have been so susceptible to contracting disease, and the court's decision in Curtis may well have been different.
Tuesday, March 8, 2011
Does Probable Cause Dissipate Over Time?
The issue at the center of People v. Geier, No. 2-10-0112, slip op. (2d Dist. February 22, 2011) is whether probable cause dissipates over time. In other words, if an officer has probable cause to believe that a crime has occurred or is occurring, does that probable cause eventually evaporate if the officer waits to act on it? According to the Geier court, the answer is "no."
The defendant in Geier was a 68-year-old woman traveling on a winding highway in Boone County. An officer observed defendant's car traveling "a little more than a quarter-mile away on Woodstock Road." Id. at 2. The officer observed the car "moving 'a little fast'" as it approached an intersection, at which the defendant "abruptly stopped." Id. After the car turned at the intersection, the officer observed all four tires go over the fog line. Id. The vehicle turned again onto another road, where the officer observed the left wheel of the car cross the center line. Id. Defendant was then stopped by the officer, id. at 2, and she was later cited with DUI. Geier, No. 2-10-0112, slip op. at 1.
Defendant filed a motion to quash arrest and suppress evidence based on a lack of probable cause. The trial court granted the motion, reasoning that " why I'm granting the motion to suppress the evidence is that if in fact he [the officer] was going to pull the car over, the defendant over for that violation, I think he could have done it a lot, lot sooner than at the corner of Riverside and Olson." Id. at 4. The State appealed. Id.
The issue on appeal was whether probable cause dissipated from the point at which the officer first observed the defendant cross the fog line and the point at which he finally pulled her over. If it the probable cause had dissipated, then he would not have had grounds to pull her over. If the probable cause remained intact, then the officer would have had grounds to pull defendant over, even as time had lapsed between the traffic violation and the stop. The appellate court ultimately reversed the trial court, holding that the officer still had probable cause to stop defendant because "Mere delay does not dissipate probable cause to arrest." Id. at 10 (citing People v. Sheppard, 242 Ill. App. 3d 24, 29-30 (1993)).
It is not clear from the court's holding just how long probable cause lasts or whether it can even "expire." Under the facts in the instant case, the traffic violation was close enough in time to the stop that it was still fresh. It appears that the court's holding relies at least in part on the fact that it was a winding road and that it would have been unsafe to pull defendant over immediately after witnessing the traffic infraction. In other words, there was good reason for him delaying the stop. But this rule probably has its limits. For instance, it's unlikely that a police officer would still have probable cause to pull a driver over when he saw that driver cross the center line a month ago and the driver was driving lawfully when pulled over. Therefore, because the court did not announce a bright line rule here, its application will be very fact-specific.
Monday, March 7, 2011
Are Notice by Publication Statutes Finally on Their Way Out?
At the beginning of January, I wrote a post entitled "Isn't it Time to Bring 'Notice by Publication' Statutes into the Twenty-first Century"? The crux of the post was that as print newspapers have become obsolete and expensive to produce vis-a-vis their digital counterparts, "notice by publication" statutes have also become obsolete and expensive ways of conveying notice to the public. My solution was to amend notice by publication statutes to allow for online publication, where it would be cheaper to publish and where the notice would have a better opportunity of being seen by the party being noticed. It turns out that that time may be coming sooner rather than later.
This morning's edition of the ISBA's E-Clips linked to an article entitled "Illinois could remove public notice from newspapers." According to the article, "A bill pending in the General Assembly would let cash-strapped governments post public notices online instead of paying to run them in print. While the shift has been considered in other states, Illinois would be the first in the nation to drop the requirement that notices run in local newspapers, according to newspaper associations."
The only people who seem to be upset by the legislation are publishers of small newspapers, who rely on notice publications for a significant portion of their revenue. For instance, the publisher of the News-Progress, a paper distributed near Decatur, said that "17 percent of the newspaper's advertising revenue comes from public notices." On the other hand, "12 metropolitan counties--Dekalb, DuPage, Kane, Kendall, Lake, Madison, McHenry, McLean, Peoria, Tazewell, Will and Winnebago--spent nearly $5 million on public notices over four years." So while many of the small newspapers will likely suffer or even have to cease printing, it will save taxpayers a lot of money over time. It will also increase the likelihood that the notice will actually be read, and it will allow anyone in the world to read the notice, such as an interested party in another state or country.
The article does not specify how the legislation would affect private parties, as my previous post addressed. However, the spirit behind the legislation is the same--that publishing notice in newspapers is expensive and ineffective. Therefore, it would make sense to extend that rationale to the notice by publication statutes that are binding on private parties. This would probably mean that many small newspapers would go out of business, but, collectively, it would save state citizens millions of dollars and better achieve the notice by publication statute's objective of noticing individuals who cannot be found for personal service.
Sunday, March 6, 2011
Official Bankruptcy Forms
The official bankruptcy forms can be found HERE on the uscourts.gov website.
Friday, March 4, 2011
The Duration Principle and the "Business Portion" of a Stop
The Fourth District's recent decision in People v. McQuown, No. 4-10-0297, slip op. (4th Dist. February 16, 2011), illustrates the "duration principle" and explains the "business portion" of a stop. In McQuown, the defendant was pulled over for "having an obstructed windshield based on air fresheners hanging on the rearview mirror." Id. at 2-3. The officer issued the defendant a written warning for the obstructed view and continued questioning her. Id. at 2. The officer suspicion was piqued by air fresheners on the mirror, turn signal, and air vents because "drug traffickers often try to overwhelm the vehicle's interior with an artificial air freshener to prevent a drug canine from detaching the odor of contraband." Id. at 4. The officer asked if he could search the car "'quite a few times,'" but the defendant refused. Id. at 3. The officer then told the defendant that "she would have to wait for the canine unit to arrive." McQuown, No. 4-10-0297, slip op. at 2. It was disputed how long it took for the canine unit to arrive, but the court found that it "did not arrive until 37 or 38 minutes." Id. at 8. Once there, the canine alerted on defendant's vehicle, and cocaine was found beneath the driver's seat. Id. at 6. The defendant was changed with three drug offenses. Id. at 1. The defendant filed a motion to suppress, arguing that the seizure of defendant was insufficiently limited in duration. After hearing arguments, the trial court granted defendant's motion to suppress, and the State appealed. Id. at 8.
On appeal, the State argued that "the trial court erred in granting defendant's motion to suppress as Officer Larner had reasonable suspicion to detain her car for a canine sniff." McQuown, No. 4-10-0297, slip op. at 8. This argument, however, did not prevail. Id. Under the Fourth Amendment, "a vehicle stop must be reasonable under the circumstances, and the stop will be deemed reasonable "'where the police have probable cause that a traffic violation has occurred.'" Id. at 10 (citing Ramsey and Whren). Here, the defendant's view was obstructed by an air freshener, which is a violation of the Illinois Vehicle Code. See 625 ILCS 5/12-503(c). Therefore, the stop was reasonable at its inception. However, the stop, even if it is reasonable at its inception, "can be become unlawful 'if it is prolonged beyond the time reasonably required' to complete the purpose of the stop." Id. at 11 (quoting Caballes). The court then looked to the "duration principle," which concerns the reasonableness of the length of the stop. Id. at 12. There is "no bright-line rule [that] has been adopted to indicate when a stop has been unreasonably prolonged"; rather, the "duration of the stop must be justified by the nature of the offense and the 'ordinary inquiries incident to such a stop.'" McQuown, No. 4-10-0297, slip op. at 12 (citing Caballes, Driggers, and Koutsakis). With this in mind, the court held that the "traffic stop was unduly prolonged in this case." Id. at 12-13. Central to the court's reasoning was that the "'business portion' of the stop took a little over 10 minutes, but Officer Larner did not ask for a canine unit until 13 minutes after the initial purpose of the stop ended." Id. at 13. The court's holding was therefore based on the unreasonable amount of time between when the "business portion" of the stop ended and when the canine units arrived.
Officers will often pull over a defendant for a minor traffic violation (such as having an air freshener on one's mirror) as a pretext for something else. McQuown makes clear that if the officer is going to use a minor traffic stop as a pretext to investigate a more serious offense (such as drug trafficking), that officer must be ready to produce the canine unit in a relatively short period of time following the stop. If a defendant is pulled over for a minor traffic offense, which later results in a drug offense after a drug sniff by a canine unit, the defense lawyer should first identify the "business portion" of the stop. Here, it was a minor traffic violation for having an air freshener on the mirror. Second, the defense lawyer should identify how long the business portion of the stop lasted. For a minor traffic violation like this, it should not take very long for the officer to write the ticket and have it signed. After the nature of the stop has been identified and the duration of the stop relating to its nature has been calculated, the defense lawyer should then look at how much time had lapsed from the end of the "business portion" of the stop (which would usually be determined by the issuance of the citation) to the search of the vehicle. If, as in McQuown, there was an unreasonable amount of time that lapsed between the issuance of the ticket and the search producing the drugs, then the defendant has a good argument that he was seized in violation of the "durational principle." The fruits of the search, as in McQuown, would then be subject to suppression through a pre-trial motion to suppress.
Thursday, March 3, 2011
"Breaking the Plane" in Burglary Cases
Last month, the Illinois Supreme Court handed down its decision in State v. Beauchamp/Jones, No. 108355, 108350 cons., slip op. (February 3, 2011), where the court held that a defendant "enters" a vehicle under Illinois' burglary statute when he "breaks the plane" of the vehicle.
In Beauchamp, a woman was returning to her car in a Metra station parking lot, where she saw a man standing two feet from her car. Id. at 2. Upon closer inspection, the woman discovered that the lock on the rear hatchback window had been "'punched out'" and that the hatchback window was missing. Id. Thinking that someone was trying to steal her car, she crossed the street to a fire station and approached a police officer with what she observed. Id. An officer then pulled up to the defendant's car, which had been parked next to the woman's car, and noticed a "4 feet by 3 to 3 1/2 feet window" in the rear seat of the defendant's car. Id. at 3. The officer "observed that the window in the rear door of the SUV was missing, one hydraulic arm was on the ground, the other arm was dangling from the vehicle, and the rear door lock was 'punched.'" Beauchamp, No. 108355, slip op. at 3.
The defendants "were charged by indictment with burglary in that they, without authority, knowingly entered a motor vehicle with the intent to commit a theft therein" in violation of 720 ILCS 5/19-1(a) (West 2006). Id. at 2. After testimony from the woman and the officer, the State rested, and defendant "moved for a directed finding of not guilty, arguing that the State had failed to prove an essential element of the offense of burglary: an 'entry' into the vehicle." Id. at 3. The trial court found the defendants guilty, and sentenced them to prison for terms of three and six years, respectively, and defendants appealed. Id. at 4.
The appellate court modified the judgment of the trial court "to reflect a conviction for theft" instead of burglary, agreeing with the defendants that they did not break the plane of the car by removing the window. Id. The State then appealed the decision of the appellate court. Beauchamp, No. 108355, slip op. at 4.
The Illinois Supreme Court reversed the decision of the appellate court, holding that "an entry into the vehicle was proved." Id. at 6. Under 5/19-1(a), "a person commits burglary when without authority he knowingly enters a motor vehicle, or any part thereof, with intent to commit therein a felony or theft." Id. at 5. For purposes of 5/19-1(a), an entry "does not require intrusion by a person's entire body; an intrusion by part of the body into the protected enclosure is sufficient." Id. (citing People v. Palmer, 83 Ill. App. 3d 732, 736 (1980)). Therefore, "an entry may be accomplished simply by 'breaking the close,' i.e., crossing the planes that enclose the protective space. Id. (citing People v. Parham, 377 Ill. App. 721, 730 (2007). The court reasoned that "when the rear door lock was punched out, defendants were able to open the rear window by either pressing the button or prying it open. Once open, defendants could grasp the window from both sides. Though touching the inside of the window, where the window opened away from the vehicle, does not constitute an entry, other evidence proved that the defendants did, in fact, break the close of the vehicle," such as the fact that it was "'a physical impossibility to remove the hatchback window without gaining at least minimal access to the protected interior, of the close, of the vehicle." Beauchamp, No. 108355, slip op. at 6-7.
Whether a defendant "breaks the plane" of a protected area will always be a question of fact for the jury or the judge. As the Beauchamp court notes, "The purpose of the burglary statute is to 'protect the security and integrity of certain specified enclosures…" Id. at 5. The question that Beauchamp addresses is, how can we define the boundaries of those "specified enclosures" when the space isn't actually enclosed? The court answers this question by creating an imaginary plane which stretches across the open space of a "specified enclosure" like a spider web. The idea of creating an imaginary plane like this is not new. The Fourth District, in the 1983 case of People v. Dawson, 452 N.E.2d 385, 387 (overruled on other grounds), held that a defendant who had entered an attached garage was guilty of residential burglary where he had "broken the close of the garage," which was left partially open for the family dog to go in and and out.
The Beauchamp court's reasoning is sound on its face, but the court may have been reaching when it applied the law to the facts in the instant case. The purpose of the burglary statute is no protect the integrity of the specified enclosure--in this case, a car. The question in Beauchamp was whether that integrity was imperiled when the back window was removed from the vehicle. The court ultimately held that it was because the defendants necessarily had to make an "entry," albeit a very minor one, into the car to pull off the window. Because the defendants did not enter the car through the backseat or through another window to remove the rear window, the court had to devise the idea of a "plane" covering the back of the car in order to find the defendants guilty of burglary. However, after Beauchamp, the "breaking the plane" fact issue could eventually become unworkable when imaginations run wild in trying to draw the boundaries of these imaginary planes. For defense lawyers, then, challenging the "entry" element of burglary statutes just got a little bit harder.