Illinois Criminal Policies and Procedures

The Illinois Criminal Justice Information Authority has released a new guide called “Policies and Procedures of the Illinois Criminal Justice System.”   The guide provides an overview of how the state adult criminal justice system typically operates in Illinois. It offers information on the flow of adult criminal cases through the criminal justice system including arrest procedures, the court system, pretrial activities, trial, sentencing, corrections, and the criminal record expungement process.  It offers a step-by-step outline of the criminal justice process, with ample citations to statutory authority.  It was apparently funded by a grant from the U.S Department of Justice.  

HERE is a link to the guide.  This will probably not be too much help to the experienced criminal lawyers who read this blog, but it is a great resource for those of us who are not so familiar with the process.

Drew Peterson Juror Questionnaire

The juror questionnaire used in the Drew Peterson trial hit the internet today.  The questionnaire is pretty straight forward.  I just wonder how many potential jurors answered all questions honestly and completely.  Here it is:  

People v. Drew Peterson: Juror Questionnaire

(h/t to Justice Cafe)

People v. Mains and the community care taking exception

The 2nd District Appellate Court recently found in People v. Mains, 2012 IL App (2d)110262 that it was a valid use of the community caretaking exception when police stopped and questioned a motorist because his emergency flashers were on and he was fixing his engine.

In Mains, the defendant was experiencing difficulty driving on a highway and was going between 25-30 miles per hour with his emergency flashers activated. After defendant drove into a church parking lot and opened the hood to work on engine, officers arrived, activated emergency lights and took his name and birth date. Police subsequently discovered that defendant’s driver’s license was revoked and he was arrested. While the prosecution argued that the stop was constitutional under Terry v. Ohio, 392 U.S. 1 (1968) or as part of a community caretaking function, the trial court disagreed, quashing the arrest, while the state appealed.

A community caretaking exception applies “where (1) the officer is performing a function other than the investigation of a crime, and (2) the search or seizure was reasonable because it was undertaken to protect the safety of the general public.” People v.McDonough, 239 Ill. 2d 260, 269 (2010). The 2nd District found that both requirements were met in the instant case. Specifically, the appellate court cited the fact that defendant was driving well below speed limit, which could pose danger to other motorists. Additionally, the court held that asking for defendant's name and birth date was not initiating a criminal investigation. The court finally held that there was no need to determine whether it was acceptable under Terry.

For those interested, I have included two blurbs of cases cited in Mains for cases where the court also found a community care taking exception.

People v. Dittmar, 2011 IL App (2d)091112-“officer’s stop of the defendant was justified under the community caretaking exception because the defendant’s actions of pulling his vehicle to the side of the road and switching positions with the passenger gave the officer reason to believe that the defendant might need assistance due to a mechanical problem or other emergency” Mains at ¶ 14.

People  v.  Robinson,  368  Ill.  App.  3d  963- “officer was  engaged  in community caretaking when, after rousing the unconscious defendant, he asked him to step out of his vehicle and to produce identification” Mains at ¶ 15.

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.

Illinois Supreme Court Clarifies Obstruction of Peace Officer

In the recent opinion of People v. Baskerville, 2012 IL 111056, the Illinois Supreme Court found that a husband didn’t commit the crime of obstructing a peace officer (720 ILCS 5/31-1) when he allegedly lied to a police officer about his wife’s whereabouts but where the lie didn’t actually impede the officers’ progress in investigating the crime.

In Baskerville, a La Salle County sheriff’s deputy observed a woman driving whose license he believed to be suspended. He followed her home and initiated a traffic stop, but she went inside the house. Her husband then came to the sheriff’s deputy and told him that his wife was not at home and that he was the one that was driving and offered to show him his driver’s license. The husband then went back into the house and after emerging again, told the officer that he could search the house for the wife if he wanted.

Both the husband and the wife were charged with obstructing the police officer based on the false statements and were convicted. On appeal, the appellate court found that that there was a physical act that was required under the statute to obstruct a peace officer and overturned the husband’s conviction on those grounds. However, while the Illinois Supreme Court reversed the conviction, it did so on separate grounds.

The supreme court held that false statements could be considered to obstruct a peace officer and that a physical act is not required, as “applying the dictionary definition, it is evident that 'obstruct; encompasses physical conduct that literally creates an obstacle, as well as conduct the effect of which impedes or hinders progress. Furnishing false information could thus be included within that definition, as it can undoubtedly interfere with an officer's progress". At Paragraph 19 of People v. Baskerville.

The supreme court found, however, that there was insufficient evidence that there was obstruction of a peace officer because the officer was not actually impeded. While the husband initially falsely denied the wife was in the house, he later gave the officer consent to search the house, though the officer did not do so. The Supreme Court found that because of the consent to search the house, the officer was not actually impeded and overturned the conviction.

Illinois Supreme Court Confirms Squad Car Video from DUI Arrest is Discoverable Under Schmidt

For attorneys working in misdemeanor courtrooms, discovery is always an amorphous concept. Unlike felony discovery, which follow Illinois Supreme Court Rules 411-417, misdemeanor discovery is limited to a few statutes and due process requirements. In People v. Kladis, 2011 IL 110920, the Illinois Supreme Court directly addressed whether squad car videos are discoverable by the defendant in a DUI proceeding.

In Kladis, the defendant made a written notice five days after her DUI arrest. The request included the squad car video from the related stop. At her first appearance, the defendant also made an oral request for the squad car video. Almost 45 days after the DUI arrest, the state tendered a letter to the defendant noting the squad car video had been destroyed pursuant to departmental policy, which automatically deleted videos 30 days after their creation.

The trial judge sanctioned the state for the destruction of the squad car video. As a sanction, the trial judge would not let the officer testify about the occurrence during which the video was running.

In its ruling, the court looked to People v. Schmidt, 56 Ill.2d 572 (1974) and noted that defendant's are entitled to the following materials:

1. List of witnesses. 725 ILCS 5/114-9.
2. Written confessions and witnesses who witnessed written or oral confessions of defendant. 725 ILCS 5/114-10.
3. Exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963).
4. Reports prepared by the prosecution's witnesses for impeachment purposes. People v. Cagle, 41 Ill.2d 528 (1969).

In Kladis, the Illinois Supreme Court added squad car videos to discoverable items under Schmidt. 2011 IL 110920 ¶ 28. In so holding, the Court noted that squad car videos further the courts' truth-seeking process. Id. Squad car videos are an "integral part" of traffic arrests, and they "objectively document[] what takes place." 2011 IL 110920 ¶ 29. They both help the state prove their case and help defendants decide to take pleas or litigate their claims of innocence.

For attorneys practicing in these courtrooms, they must make these demands for videos early and often—create a record by filing a motion for discovery, issue a subpoena to the arresting agency, and make a demand on the record for these materials.

Probable Cause in Drug and Alcohol Testing

A recent decision from the Second District highlights the importance of refusing any blood, breath and urine tests when one is suspected of driving under the influence of alcohol or drugs. In the case of People v. Miranda 2012 IL App (2d) 100769, No. 2-10-0769, the Second District held that the results of a urinalysis test which showed that a driver arrested for drunk driving had traces of cannabis and cocaine in his system was invalid because there was no probable cause to allow for the search warrant after he refused testing.

In Miranda, an Elmhurst police officer pulled over Miranda because he believed that he was intoxicated. The officer noticed an open beer bottle and after some investigation, arrested the defendant for driving under the influence of alcohol. Miranda refused the breathalyzer as well as the blood and urine test. The officer applied for a search warrant in which he said that in “his professional opinion... [defendant was] under the influence of alcohol and/or drugs.” After a search warrant was acquired, Miranda’s blood was taken to be tested for alcohol and a urine sample was taken for drug testing.

The results came back positive for metabolites of cannabis and cocaine. The trial court granted defendant's motion to suppress the evidence as it was taken based on a warrant that lacked probable cause, specifically, that the officer only had probable cause to suspect that driver may have been drunk but there was no mention in the warrant or his affidavit concerning drugs. On appeal, the Second District upheld the trial courts decision to suppress the evidence.

The state additionally argued that the implied consent statute meant that the defendant had no right to have the evidence suppressed. However, the appellate court found that because defendant had refused a drug testing, the state had no right to use the implied consent statute to force the withdrawal of the blood and urine, as he was revoking the implied consent.

This is an important case for any attorney defending a driving under the influence of drugs case because it reiterates the importance of probable cause for the type of testing (alcohol as opposed to drugs) as well as the importance of refusing consent.

Additionally, other drug metabolites can stay in a persons system for days longer than the effect of the drug has lasted. For example, metabolites from cannabis can stay in the system for up to 30 days, sometimes even more, depending on the weight of the individual as well as the quantity of cannabis they are smoking. This means that many people who might have had a joint a week ago would be considered under the influence of drugs, as a positive test result would be considered proof of influence in Illinois because of its strict per se DUI law, even if there is no indication that they were otherwise impaired. The only way for a person who may have drug metabolites in their system to avoid a conviction when a test is likely is to do as Miranda did and refuse the test, then challenge on probable cause grounds if it proceeds anyways.

Most of the public doesn’t realize these rules, as they seem counterintuitive, and may give the police a blood or urine sample when they might test positive. Just as you would advise your clients never to perform field sobriety tests or give a breath sample, they should avoid giving a blood or urine sample when suspected of driving under the influence of drugs and Miranda shows how it can be challenged.

The Village of Plainfield v. Michael W. Huseman

A couple of days ago, I was pulled over for speeding while I was on my way to court. As soon as the officer asked me for my license and registration, I politely informed him that I was an attorney and that I was on my way to the courthouse.  He was not impressed.  Nor was he aware, apparently, of my privilege from arrest in these situations.  

I knew, however, that I had just invoked my privilege so I did not argue any further with the officer.  I just waited patiently in my car while he walked back to his car.  I was actually hoping that he would write me a ticket, which he did.  He then came back to my car and explained my options regarding paying the ticket by mail or appearing in court.  I didn't mention it to him, but I knew at that time that I would choose the later.

When I got back to the office, I dusted off the old Illinois Criminal Code of 1961.  Just as I remembered, there is a statute titled "Persons Exempt from Arrest."  This law applies to electors during their attendance at election, senators and representatives during the session of the General Assembly, members of the militia during their attendance at musters (wtf?), and judges, attorneys, clerks, sheriffs, and other court officers while attending court and while going to and returning from court.  725 ILCS 5/107-7.  

Normally, an officer faced with an attorney's or judicial officer's timely assertion of the privilege from arrest should obtain the requisite information from the one asserting the privilege, make arrangements for the complaint to be issued later against the accused, and promptly permit the accused to go on his way.  People v, Lynch, 266 Ill.App.3d 294, 297 (2nd Dist. 1994).

A further review of the case law interpreting the statute shows that if the privilege is violated, a motion to dismiss is the proper way to invoke the privilege.  So, if anyone wants to see a copy of my motion, HERE it is.  Just don't ask me how much billable time I have into this already.  I'm pretty sure just paying the ticket would have cost thousands less.  

I will keep you apprised of any developments.

UPDATE: Ticket dismissed. It only took about six months.

"Your Papers, Please!" - The Second District Appellate Court holds refusing to identify oneself not a violation of the Resisting/Obstructing statute.

In People v. Fernandez, 2011 Il App (2d) 100473, the Second District Appellate Court tackled the question of whether refusing to identify oneself would run a-foul of the Resisting/Obstructing statute. The Court held that refusing to identify oneself was not a violation of Section 31-1 and reversed the defendant's conviction. In so holding, the Court followed in the footsteps of other court opinions reaching similar conclusions.


In Fernandez, Carpentersville Police responded to a complaint about a movie theater patron. When the officer arrived, the defendant was outside the theater and "visibly intoxicated." The officer requested the defendant's name, and the defendant refused to identify himself. The officer then placed him under arrest and charged him with obstructing under section 31-1 for "refus[ing] to identify himself (name and date of birth) and failed to provide any kind of identification to Officer Acevedo."


Section 31-1 of the Criminal Code makes resisting or obstructing an authorized act of a police officer a class A misdemeanor. 720 ILCS 5/31-1. Since 1968, Resisting or Obstructing required a physical act (e.g., "going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest). People v. Raby, 40 Ill.2d 392, 399 (1968). Since Raby, Illinois courts have grappled with the term physical act.


When issuing its ruling, the Court noted several prior cases which dealt with refusing to provide police with information or refusing to comply with officers. In People v. Weathington, the Illinois Supreme Court held it was not a violation of section 31-1 to refuse to answer booking questions after being arrested. 82 Ill.2d 183, 187 (1980). In People v. Ramirez, the Fifth District Appellate Court held giving a false name was not a crime under section 31-1. 151 Ill.App.3d 731, 735 (5th Dist. 1986) (Since Ramirez, the Illinois legislature created a new crime called Obstructing ID, which makes giving a false name a class A misdemeanor. 720 ILCS 5/31-4.5.)


Finally, the Court noted that the Illinois Code of Criminal Procedure does allow an officer to ask for a name and address during a Terry stop. 725 ILCS 5/107-14. However, the court noted that the Illinois Criminal Code provided no corresponding duty of a suspect to respond to an officer.

The whole opinion can be read here.