The Second District Court Continues to Expand the Definition of Resisting/Obstructing in People v. Nasolo

Earlier this year, the Illinois Supreme Court expanded the Resisting/Obstructing statute to included non-physical acts of obstruction within the purview of 720 ILCS 5/31-1 in People v. Baskerville, 2012 IL 111056. Following suit, the Second District Appellate Court expanded the Resisting/Obstructing statute to included being uncooperative with booking procedures. People v. Nasolo, 2012 IL App. (2d) 101059 is one of the first appellate court decisions since Baskerville, and it represents an uncomfortable shift toward criminalizing uncooperative and belligerant attitudes with police.

In People v. Nasolo, the defendant was charged with obstructing under 720 ILCS 5/31-1 for "refus[ing] to be fingerprinted or photographed." 2012 IL App. (2d) 101059 ¶ 2. At trial, the officer testified that the defendant refused to answer questions during the booking process, refused to be fingerprinted, and refused to be photographed. 2012 IL App. (2d) 101059 ¶ 5. The jury found Nasolo guilty of obstructing a peace officer. On appeal, the defendant contended that refusing to be fingerprinted or photographed was not a violation of the Resisting/Obstructing statute.

For those familiar with the law on section 31-1, this case is very similar to People v. Weathington. In Weathington, the defendant refused to provide "name, address, birth date, birth place, social security number, occupation, and physical description" to officers in lock-up. 76 Ill.App.3d 173, 176 (4th Dist. 1979). The Fourth District Court noted that it would be "incongruent to say that one may remain silent and yet must provide "booking" information."  Id. at 177. The Illinois Supreme Court narrowed the Fourth District ruling noting that "[n]o physical act of resistance or obstruction occurred; merely argument coupled with eventual cooperation. 82 Ill.2d 183, 187 (1980); see also People v. Fernandez, 2011 IL App (2d) 100473 ¶ 7 ("Arguably, the supreme court’s affirmance narrowed the appellate court’s holding somewhat. The supreme court seems to have held only that a delay in providing the information is tantamount to argument with the police.")

When dealing with the refusal in Nasolo, the court focused not on any physical act, but rather whether the defendant actually obstructed the performance of the officer's duties.  This comports with the recent Illinois Supreme Court case, People v. Baskerville, 2012 IL 111056, in which the Illinois Supreme Court did away with the physical act requirement of the Resisting/Obstructing statute.

This rational, however, has real problems when considering the defendant's right against unreasonable searches and seizures under the Fourth Amendment.  U.S Supreme Court precedent subjects fingerprinting to Fourth Amendment protections. See Davis v. Mississippi, 394 U.S. 721, 727 (1969)("Detentions for the sole purpose of obtaining fingerprints are no less subject to the constraints of the Fourth Amendment.");  Hayes v. Florida, 470 U.S. 811, 817 (1985)("There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act . . ").  Police officers need at least reasonable suspicion, if not probable cause, to fingerprint a defendant.

Importantly, the defendant in Nosolo was not physically interfering with being fingerprinting.  The allegations and testimony simply revolved around the defendant's refusal.  Knowing that fingerprinting is a search, has the Second District now criminalized asserting defendant's right to refuse searches under the Fourth Amendment?  Even those searches which are authorized, defendant's can still refuse or deny consent. At law, the defendant's consent, or lack thereof, is integral in determining whether a search under the Fourth Amendment was reasonable.People v. Luedemann, 22 Ill.2d 530, 544 (2006)(In Illinois, there are three levels of citizen-police interaction: consensual encounters, brief investigative detentions based on reasonable suspicion, and arrests supported by probable cause.)

Only months after the problematic People v. Baskerville decision was released, the Illinois Appellate Courts are already applying this precedent in problematic ways.  The line between defendant's rights to remain free from unreasonable searches and seizures and obstructing police officers' authorized acts has become thinner and more indiscernible.