CHAPTER 720



A. Legal issues of concern to prosecutors: 4th Amendment concerns

1. 4th Amendment, search and seizure

a. United States Constitution, Fourth Amendment: “ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

b. Illinois Constitution: “The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.”

c. People v. Luedemann, 222 Ill.2d 530 (2006).

1. Exclusionary rule defined

a. Judicially created remedy which prohibits the use of evidence obtained during unlawful searches. Weeks v United States 232 U.S. 383, 34 S. Ct. 341 (1914).

b. Fruit of the poison tree doctrine: not only must illegally obtained evidence be excluded, but all evidence obtained or derived from exploitation of the evidence must be excluded. Wong Sun v United States. 371 U.S. 471, 83 S. Ct. 407 (1963).

2. Who may contest a search and when the Fourth Amendment does not apply:

a. Introduction

1) In order to contest a search, a person must demonstrate

that he has a reasonable expectation of privacy in the area searched. Rakas v Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (F: passengers in an auto where sawed off shotgun was recovered contest search)

3) Note: Passenger’s may contest the validity of the vehicle stop. See Brendlin v. California, 551 U.S. 249,

127 S.Ct. 2400, 168 L.Ed. 2d 132 (2007).

b. Examples

1) Abandoned property: The Fourth Amendment does not prohibit the warrantless search and seizure of property which has been abandoned.

(a) California v Greenwood 486 U.S. 35, 198 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) (no expectation of privacy in garbage which has been disposed of)

(b) Drop cases – property which has been dropped by a suspect can be seized by police officers since the defendant has no legitimate expectation of privacy in abandoned property.

i. Most often seen in gun and narcotic cases

ii. Judges may become suspect

2) Denial of ownership – where the defendant denies a possession interest in the property searched this property is considered abandoned and therefore the defendant has no legitimate expectation of privacy. If defendant makes this statement, put in reports.

3) Passenger in a vehicle

(a) Passenger in a car, who has not asserted a property or possessory interest in either the car or the property seized, did not have a legitimate expectation of privacy. Rakas v Illinois , 439 U.S. 128. 99 S. Ct. 421 L. Ed 2d 387 (1978). However, see Brendlin v. California, above.

(b) People v. Johnson, 237 Ill. 2d 81, 927 N.E. 2d 1179 (2010). Passenger in this case, who was detained pursuant to a valid traffic stop, did not have a legitimate expectation of privacy in the vehicle. Passenger could not contest the search of the vehicle.

(c) Family members may have more of a possessory interest than a mere passenger.

(d) Factors:

i. Was the defendant the operator of the vehicle?

ii. Was the defendant legitimately in the area searched?

iii. Prior use of area searched or property seized…

iv. Ability to control or exclude other use of property;

v. Defendant’s subjective expectation of privacy People v Johnson, 114 Ill. 2d 170 499 N.E.2d 1355 (1986) People v Flowers, 111 Ill. App. 3d 348, 444 N.E. 2d 242 (1982) People v Parker 312 Ill. App. 3rd 607 (2000)

4. Search warrants: writing, procuring and servicing of valid warrants

a. Statutory requirements 725 ILCS 5/108-3, 108-4

1) Grounds for search warrant – requirements under 108-3

(a) Written complaint

(b) Under Oath

(c) State facts sufficiently to show probable cause

(d) Particularly describes place or person to be searched

(e) Particularly describes things to be seized

2) Issuance of search warrant requirements under 108-4

(a) Date and time of issuance

(b) Signed by judge

(c) Sec. 5/108-4 was amended in 1991 to allow search warrants to be transmitted by facsimile machine

b. “Facts sufficient to show probable cause” and examples

1) Old test – Aguilar – Spinelli Test

(a) Two pronged test

i. Basis of knowledge: How does officer know offender is committing/has committed a crime>

ii. Veracity/reliability: Why should we believe him (prior use, statements against penal interest, etc.)

(b) Deficiency in one prong could not be used to bolster other

2) New test – Illinois v Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

(a) Totality of the circumstances: “Whether there is a fair probability that contraband or evidence of a crime will be found in a particular place”

(b) Fact of Gates: Anonymous tips corroborated

3) Good faith exception

(a) Fourth Amendment Exclusionary Rule does not bar use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate that is later found to be unsupported by probable cause. U.S. v Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L.Ed. 2d 677 (1984). See, also Herring v. United States, 129 S. Ct. 695, 172 L.Ed. 2d 496 (2009)—the exclusionary rule does not apply to a police officer’s detention and search based on an invalid warrant if the unlawful search was a result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of the constitutional requirements.

(b) Suppression is appropriate only if officers were dishonest or reckless in preparing their affidavit

(c) Courts do not like – don’t rely on

4) Examples

(a) CI (confidential informant) with prior reliability/basis of knowledge

(b) John Doe

(c) Controlled buy

(d) Gang paraphernalia/guns

5) Questions police officer should answer in affidavit for complaint

(a) When did CI make observations

(b) When did police officer talk to CI RE observation

(c) How does CI know what he saw was contraband?

(d) Why should we believe contraband will still be there?

(e) Who is committing crime – describe in detail

(f) Where is contraband being held – describe in detail and make sure its where CI said it is

(g) Why should we believe CI?

i. Did we investigate/corroborate his observations?

ii. Have we used him in the past (be able to document)

c. Execution of search warrant

1) Persons authorized to execute search warrant 725 ILCS 5/108-5

2) Execution of search warrant 725 ILCS 5/108-6

a) 96 hours from time of issuance

b) Must leave duplicate copy of the search warrant (not the complaint) with person from whom articles are seized – if nobody is home, leave a copy at home

3) Command of each warrant 725 ILCS 5/108-7

a) May seize items described in warrant

i. May search anywhere w/n premise where item may be found

ii. Drugs v Guns – Ex.

b) Proof of residency – include in complaint

c) Other exceptions (ex. Plain view)

4) Use of Force in execution of search warrant

a) Wilson v Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L.Ed.2d 976 (1995). U.S. S. Ct. held the 4th Am. Requires p.o.s. to knock on the door and announce their identity before attempting to forcibly enter a dwelling. P.O.s must have exigent circumstances such as the threat of violence or a reasonable belief evidence will be destroyed.

b) Richards v. Wisconsin, 520 U. S. 385, 117 S. Ct. 1416, 137 L.Ed.2d 615 (1997). The U.S. S. Ct. stated that the 4th Amendment does not permit a blanket exception to the knock and announce requirements for felony drug investigations.

c) People v. Krueger, 175 Ill.2d 60, 675 N.E. 2d 604 (1997). The Il. S. Ct. adopts the reasoning in Wilson and declares to Il. “No Knock” Statute (725 ILCS 5/108-8) unconstitutional. P.O.s must demonstrate exigent circumstances to justify the no knock entry. See, also People v. Wright, 183 Ill.2d 16, 697 N.E.2d 693 (1998).

d) Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L.Ed., 2d 56 (2006) violation of the 4th Amendment “Knock and announce” rule does not require Suppression of evidence found in a search

i. People v. Glorioso, 398 Ill. App. 3d 975, 924 N.E. 2d 1153 (2d Dist. 2010). App. Ct. adopts reasoning in Hudson. Il. S.Ct. has not addressed this issue.

e) Police officer may use deception to gain entry or serve warrant – officers expected to announce their authority and purpose prior to entry (numerous exceptions)

5) Detention and search of person on premises 725 ILCS 5/108-9

(a) Weapons: Terry – type situation – protect from attack

(b) Disposal/concealment of evidence

(c) Michigan v Sumner, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981): May detain person leaving premises and bring back and detain for limited time. People v. Hess, 314 Ill. App. 3d 306, 732 N.E. 2d 674 (2000), extended detention may violate 4th Amendment.

(d) Illinois v McArthur, 531 U.S. 326, (2001)

i. Police officers who have probable cause to believe home has evidence of a crime may reasonably restrict defendant’s access to home (2 hours) in order to prevent destruction of evidence while they obtain a search warrant

6) Return to court of things seized 725 ILCS 5/108-10

a) Inventory slips returned to court: In Cook, County, inventory evidence according to police procedure

b) Return original search warrant to court

7) When warrant may be executed 725 LCS 5/108-14

8) No warrant quashed for technicalities 725 ILCS 5/108-14

9) Ways to attack search warrant – motion quash search warrant

1) Specificity: Person or place was not particularly described

(a) Police searched area not described in warrant

(b) Apt or dwelling searched was not same as described in warrant

(c) Person searched not described in warrant

2) Over-broad or lacked probable cause

3) Stale information/no reason to believe contraband would be on premises

4) Franks motions

a) If defendant can make a prima facie showing that police officer included false information in warrant knowing such information was false or with reckless disregard for truth or falsity, then he is entitled to a hearing to determine the truth or falsity. Franks v Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed 2d

b) Two Parts:

i. Prima facie showing

ii. Hearing on “knowing falsity”

c) Allows defendant to go behind 4 corners of warrant

d) May have to produce informant

e) Must be able to document CI information

5. Arrest

a. Statutory requirements of an arrest 725 ILCS 5/107-1, et seq.

1) Definitions 725 ILCS 5/107-1

2) Arrest by peace officer 725 ILCS 5/107-2: When may a police officer arrest someone

a) Arrest warrant

b) Reasonable grounds to believe that person has an arrest warrant outstanding

c) “Reasonable grounds to believe that person is committing or has committed an offense.”

3) Who may arrest?

a) Private citizen 725 ILCS 5/107-3

(b) Peace officer from other jurisdictions 725 ILCS 5/107-4

i. Fresh pursuit

(c) Assisting peace officer 725 ILCS 5/107-8

4) Method of arrest 725 ILCS 5/107-9 – how and when someone can be placed under arrest

a) Two parts

i. Complaint requirements

* State the name of the accused if known, if not known, the accused may be designated by name or description by which he can be identified with reasonable certainty

* State the offense with which the accused is charged

* State the time and place of the offense as definitely can be done

* Be subscribed and sworn by the complaint

ii. Warrant - requirements

* Be in writing

* Specify the name, sex and birth date of the person to be arrested if known, if name not known it shall designate such person by any name or description by which he can be identified with reasonable certainty

* Set forth the nature of the offense

* State the date when issued and the municipality or county where issued

* Be signed by the judge

* Command the person against whom the complaint was made be arrested and brought before the court issuing the warrant

* Specify the amount of bail

* Specify any geographical limits

(b) Example

(c) Defective warrant 725 ILCS 5/107-10

(d) 725 ILCS 5/107-9 was amended in 1991 to allow arrest warrants to be transmitted by facsimile machines

b. Arrests without a warrant: statutory and legal considerations

1) Suspect’s home

(a) Fourth Amendment prohibits police officers from making a warrantless arrest in a suspects home absent consent or exigent circumstances Payton v New York 445 U.S. 573, 100 S. Ct. 1371, 63 L.Ed. 2d 639 (1980).

(b) If the police officer has probable cause and consent, there is no need to show exigent circumstances People v Bean, 84 Ill. 2d 64, 417 N.E. 2d 608 (1981).

(c) Factors the courts have looked at to determine if there are exigent circumstances

i. Grave offense involved, particularly one of violence

ii. Officers acted promptly – no unjustified delay whereupon a warrant could have been obtained

iii. Strong reason to believe the suspect is in the premises entered

iv. Suspect believed to be armed or violent

v. Clear showing of probable cause that suspect if the offender

vi. Likelihood that the suspect will escape

vii. Entry is peaceful

viii. Time of entry: day or night

(d) Person’s status as an overnight guest is sufficient to show a reasonable expectation of privacy for purposes of the 4th Amendment. Minnesota v Olson, 495 U.S. 91, 110 S. Ct. 1684, 109 L.Ed. 2d 85 (1990)

(e) City of Chicago v. Torres, 214 Ill. 2d 234, 829 N.E. 2d 624 (2005) person’s status as a party guest where house is searched is not reasonable expectation of privacy under 4th Amendment

(f) United States Supreme Court has held that when the police have probable cause to arrested a suspect, the Exclusionary rule does not bar the use of a statement made by the defendant’s arrest made in the home violated Payton v New York, New York v Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L.Ed. 2d 13 (1990)

i. Key: must have probable cause

(g) Practical consideration:

i. Length of time

ii. Continue to develop information to establish probable cause

2) Investigatory stop 725 ILCS 5/107-14 and 725 ILCS 5/108-1.01

(a) 725 ILCS 5/107-14. Temporary questioning without an arrest. Police officer may stop any person in a public place for a reasonable period of time if the officer reasonably believes the person is committing, has committed, or is about to commit a crime.

i. May ask name, address and an explanation of actions

ii. Must be in vicinity of where the person was stopped

(b) 725 ILCS 5/108-1.01: Search during temporary questioning. If during the temporary questioning, the officer reasonably suspects the person is armed or dangerous, he may make search for weapons

(c) Statue codifies Terry v Ohio 392 U.S. 1, 88S. Ct. 1868, 20 L.Ed. 2d 88 (1968) – protective pat-down search or stop and frisk or Terry stop

(d) Offenders presence in high crime area and flight from police constitutes reasonable suspicion not probable cause. Illinois v Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L.Ed. 2d 570 (2000)

(e) Search must be limited to a search for weapons

i. Although, if police discover contraband other than weapons during legitimate Terry search, officer may confiscate. Michigan v Long 463 U.S. 1032, 103 S. Ct. 3469, 77 L.Ed. 2d 1201 (1983).

ii. People v Morales, 221 Ill. App. 3d 13, 581 N.E. 730 (1991) Aurora case plain feel exception

iii. Minnesota v Dickerson, 508 U.S., 113 S. Ct. 2130, 124 L.Ed.2d 334 (1993).

iv. People v Mitchell, 165 Ill. 2d 211, 650 N.E. 2d 1014 (1995). Il. S. Ct. adopts the reasoning in Dickerson.

(f) Terry stop is extended to vehicles: Michigan v Long

(g) Traffic stop, suspect out of car, officer sees knife on floor board, goes in to retrieve, sees marijuana under armrest

h) Once a car is properly stopped for traffic violation police officer may order the driver out of the car without a suspicion of criminal activity. If police officer believes the driver is armed or dangerous, he may frisk. Pennsylvania v Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977).

(i) Maryland v Wilson, 519 U.S.408, 117 S. Ct. 882, 137 L.Ed.25 41 (1997). P.O.s may ask the passenger of a vehicle out of the car is the vehicle was properly stopped for a traffic violation. Based on the reasoning in Mimms. People v Gonzalez, 294 Ill. App. 3d 205, 689 N.E. 2nd 1187. Police officers are allowed to control the movement of Passengers.

i. When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and may challenge the constitutionality of the stop. Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L.Ed. 2d 132 (2007).

ii. See, also Arizona v. Johnson, 129 S.Ct. 781, 172 L.Ed. 2d 694, 2009 U.S. LEXIS 868 (January 26, 2009).

iv. People v. Bailey, 232 Ill. 2d 285, 903 N.E. 2d 409 (2009). Following a traffic stop for a seat belt violation, police officers have the right to conduct a warrant check on the driver and the passenger. The warrant check is not a search under the Fourth Amendment. See, also People v. Harris, 228 Ill.2d 822, 886 N.E.2d 947 (2008).

(j) California v Hodari D., 489 U.S., 111 S. Ct., 113 L. Ed.2d 690 (1991).

i. Facts: Plainclothes police officers see defendant and others huddled around a parked car. Defendant and others see police and take off running. Police chase defendant and ask him to halt, but defendant continues to run. As officer gets closer to defendant, defendant drops a packet of rock cocaine. Police tackle defendant, handcuff him, and examine pockets.

ii. U.S. S. Ct. upheld the search. Court said that the defendant was not “seized” at the time he dropped packet. In order to constitute a “seizure” under the 4th Amendment, there must be a physical force (however slight) or submission to a police officer’s show of authority to restrain the defendant’s liberty. Here there was not physical force because the defendant was untouched before he dropped the drugs. Even if the officer’s pursuit and his command to halt constituted show of authority, the defendant did not comply, so consequently, he was not seized until he was tackled.

(k) Fact that police officer has gun drawn does not destroy nature of Terry stop.

i. Judges may be reluctant to go along with this argument.

(l) Wanted flyers may be the basis of a Terry stop.

i. Ex. U.S. v Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L.Ed 2d 604 (1985)

(m) Practical considerations: Take it one step at a time:

i. First need suspicious activity – articulate in police report

ii. Stop person and ask for identification, what he/she is doing in the area

iii. Pat down – had object – glass vial drugs

iv. Entry into clothing to recover

v. REPORT WRITING:

- Discuss with partner

- Specificity re: who made observations

- Specificity re: who recovered what

- AMBIGUITY IS FATAL

5. Exceptions to search warrant requirements

a. Search incident to arrest and protective sweep

1) Statute: 725 ILCS 5/108-1: When effecting a lawful arrest, the police officer may reasonably search the person arrested and the area within the persons immediate control for the purpose of:

(a) Protecting the officer

(b) Preventing escape

(c) Discovering the fruits of crime

(d) Discovering any evidence of or instruments used in the commission of the crime

2) Requirements of a search incident to arrest:

(a) Must first have probable cause to arrest prior to the search

(b) Must be substantially contemporaneous with the arrest, i.e., Normally must take place within the immediate time following the arrest and at or near the place of arrest

3) Search incident to an arrest may include vehicles

(a) When a police officer has made a lawful arrest of an occupant of an automobile, he may contemporaneous search the passenger compartment of the automobile. New York v Belton, 453 U.S. 454,101 S. Ct. 2865, 69 L. Ed 768 (1981). (Court allowed the search of a jacket located inside the passenger compartment of a car although arrestee was no longer in car) Also People v. Bailey, 247 Ill. App. 3d 611 (1993).

(b) Arizona v. Gant, 556 U.S. , 129 S.Ct 1710, 173 L.Ed. 2d 485 (2009). Supreme Court narrows the reading of Belton. Supreme Court narrows the reading of Belton. Court determined that search incident to arrest exception did not justify search of vehicle because arrestees were already handcuffed and secured in separate patrol cars.

(c) People v. Bridgewater, 235 Ill. 2d 85, 918 N.E. 2d 553 (2009). Il. S.Ct. follows Gant. Ct. indicates it would be a “rare case” when an officer could not effectuate an arrest in a manner eliminating any real possibility of access to the vehicle by the arrestee.

4) Search incident to arrest may give rise to evidence which may be recovered under other exception (i.e. plain view)

5) Protective sweeps

(a) A quick and limited warrantless search of a premise, incident to an arrest and conducted to protect the police officer and others Maryland v Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed.2d 276 (1990). (Incident to the arrest, as a precautionary matter and without probable cause but with a reasonable suspicion based on specific articulable facts permits a look in closets and spaces immediately adjoining the place of arrest from which an attack could be immediately launched).

(b) Other exceptions may come into play during a property conducted protective sweep (i.e. plain view)

(c) Cannot rummage through house for hours

b. Inventory procedures following search:

1) Evidence found pursuant to a police inventory procedure is valid even absent probable cause.

2) Reason for inventory procedure

a) Protection of owner’s property while in police custody:

b) Protection of police against complaints over lost/stolen property:

c) Major facts: Is the inventory procedure carried out according to the standard policy of the police department?

i. Inventory will not be deemed unreasonable merely because a vehicle is brought to a secure area or the defendant could have made arrangements for safekeeping of his property b/c police may still want to protect themselves against false claims of theft or weapons Colorado v Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L.Ed. 2d 739 (1987).

ii. Inventory procedures will not be deemed unreasonable because department regulations provide police with

discretion to choose between impounding a vehicle and parking and locking it.

iii. May search closed containers, if the police department has a policy that closed containers within a vehicle may be opened during inventory procedure. Florida v Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed 2d 1 (1990). (Court held that in the absence of any policy governing the situation, the opening of closed containers was not permissible incident to an inventory search because it permitted the police too much discretion).

iv. People v. Gipson, 203 Ill. 2d 298, 786 N.E. 2d 540 (2003). As long as police are acting pursuant to standard police procedure, there is no requirement that their procedure be in writing. Furthermore, if the police officer testifies he acted pursuant to a written procedure he need not produce the written policy, absent some disputed issue. Illinois State police procedure requiring police officer to inventory all contents of a vehicle before towing give police authority to open closed containers.

3) Police may reasonably search and seize, without warrant, the personal effects of a person under arrest as part of a routine booking and jailing procedure. Illinois v Lafayette, 462 U.S. 640, 103 S. Ct. 2605, 77 L.Ed 2d 65 (1983). (Police officer found drugs during an inventory search of the defendant’s purse.)

c. Hot pursuit/fleeing felon

1) Police officer in hot pursuit of a fleeing felon may make a warrantless search and seizure. The scope of the search is as broad as may be reasonable necessary to prevent the suspect from resisting or fleeing Warden v Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L.Ed 2d 782 (1967).

2) When the police officers has probable cause and attempts to make a warrantless arrest in a public place they may pursue the suspect into a private dwelling. United States v Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L.Ed. 2d 300 (1976). See People v. Wear, 229 Ill. 2d 545, 893 N.E. 2d 631 (2008), which follows Santana.

d. Plain view

1) Warrantless seizure by the police of items found in plain view during a lawful search may be reasonable under the 4th Amendment requirements.

(a) Police officer is in a place he has a right to be

(b) Item must be immediately apparent that it may be contraband or evidence of a crime

2) First requirement: Police officer is in a place he has a right to be at Examples:

(a) Police officers have a warrant and during the course of search find other incriminating evidence

b) Hot pursuit and plain view

c) Search incident to arrest and plain view

d) Inventory and plain view

3) Immediately apparent

(a) Police officer does not need to know that items are contraband per se; there must be probable cause to believe that items are contraband or evidence of a crime

(b) Texas v Brown, 460 U.S. 738, 103 S. Ct. 1535, 75 L.Ed 2d 592 (1983).

i. Facts: Officer stops defendant’s car for routine traffic and sees opaque balloons tied in small knots. Officer known from his experience it is the way heron is packaged. Officer can confiscate.

4) Can use binoculars and flashlights to assist vision – nighttime, thermal imaging, binoculars/cameras which allows you to see inside the house violates the 4th Amendment Kyllo v. U.S., 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed. 2d 94 (2001)

e. Open fields

1) Open fields doctrine

(a) Person has no legitimate expectation that open fields will remain free from warrantless intrusions by the police. A person may not legitimately demand privacy for activities conducted out-of-doors except in the area in protected from unreasonable searches and seizures. Oliver v United States, 466 U.S. 170, 104 S. Ct. 1742, 80 L.Ed 2d 214 (1984).

2) Criteria for determining what constitutes – curtilage”

(a) Proximity of the area to the house

(b) Whether the area is within an enclosure surround the home

(c) Nature of the uses to which the area is put

(d) Steps taken by the resident/owner to protect the area from observation (i.e. “No Trespassing” sign)

i. An area is not deemed to be within the curtilage just because the resident/owner subjectively intended it to be protected from intrusion by outsiders or that the governmental intrusion is a trespass at common law.

ii. People v Pittman 211 Ill.2d 502, 516 (2004)

3) Examples:

(a) Oliver v United States S. Ct. upheld the warrantless seizure of marijuana growing on the defendant’s property behind a fence with a “No Trespassing” sign. Police officers made observations from an area outside the defendant’s property.

(b) People v Becktel, 137 Ill. App. 3d 811, 485 N.E. 2d 474 (1985). A garden containing marijuana patch which was separated by a driveway and a barn, and without any general enclosure, was not part of the cartilage and was subject to search without a warrant

(c) California v Ciraola, 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed 2d 210 (1986). Warrantless naked-eyed observation of a fenced-in backyard within the cartilage of the home of an airplane at 1000 feet did not violate the 4th Amendment.

(d) Florida v Riley, 488 U.S. 445, 109 S. Ct. 693, 102 L.Ed. 2d 835 (1989). Surveillance from a helicopter circling 400 feet above a partially covered green house where marijuana was growing did not violate the 4th Amendment.

f. Automobile Exception

1) Warrantless search of an automobile stopped by the police who had probable cause to believe the auto contained contraband was not within the meaning of the Fourth Amendment Carroll v United States, 267 U.S. 132, 45S. Ct. 280, 69 L.Ed. 643 (1925): Courts have recognized the difference between vehicle and home or other property and the courts have pointed to the fact that there is a lesser expectation of privacy in a motor vehicle because its function is transportation and not living quarters or storage areas. People v Billings, 52 Ill. App. 3d 414, 367 N.E. 2d 337 (1977).

2) If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that many conceal the object of the search. United States v Ross, 45 U.S. 798, 102 S. Ct. 2157, 72 L.Ed 2d 572 (1982).

(a) Facts: Police received information from a CI that person known as “Bandit” was selling narcotics kept in a trunk at a particular location. CI gave a detailed description of “Bandit”, the vehicle in question and the location. Police went to the location given by the CI and observed the vehicle and the defendant who fit the description. Police officers stopped the defendant’s vehicle and opened the trunk, where they found an opaque paper bag containing narcotics. U.S. Supreme Court upheld search of closed container.

3) Automobile exception has been extended to a fully mobile home located in a public place. California v Carnev, 471 U.S. 386, 105 S. Ct. 2066, 85 L.Ed 2d 406 (1985). May have a different result if mobile home were anchored in a trailer court.

4) Examples

(a) People v Morales, 109 Ill. App. 3d 183, 440 N. E. 2d 30 (1985). Police officers receive information that a person had just sold CI heroin from a given location. During a 45-minute surveillance, officers observe defendant engage in a short conversation with 5-7 unknown persons and the walk over to the vehicle parked nearby. Defendant would reach underneath the car and return to the person and appear to exchange an item. (Police could not see what was exchanged.) Police went to vehicle where they recovered a glass jar with balloon filled with heroin. App. Court upheld search.

(b) People v Stout, 106 Ill. 2d 77, 477 N.E. 2d 498 (1985). Police officer stopped the defendant for a traffic violation and smelled the odor of marijuana when he came up to defendant’s vehicle. Police searched the defendant and found cocaine and codeine. Ill. Sup. Court upheld the based on the trained officer’s belief that odor was that of a marijuana cigarette.

(c) People v Smith, 95 Ill. 2d 412, 447 N.E. 2d 809 (1985) Ill. Supreme Court held that the police had probable cause to search entire auto, including closed containers when he stopped defendant for a traffic violation (no sticker). Police officer smelled alcohol and saw an open beer bottle and a wooden box the police officer knew from prior experience to be the type to transport drugs.

(d) People v Clark, 92 Ill. 2d 96, 440 N.E. 869 (1982) Ill. Supreme Court upheld search of defendant’s vehicle where police officers stopped defendant for a traffic violation and observed cannabis leaves and seeds on the from floor board search of glove compartment revealed more marijuana.

(e) There is no requirement that the warrantless search occur at the scene and the vehicle may be removed and searched later. Chambers v Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L.Ed 2d 419 (1975); Florida v Myers, 460 U.S. 380, 104 S.Ct. 1852, 80 L.Ed 2d 381 (1984); United States v Johns, 469 U.S. 478, 105 S. Ct. 881, 83 L.Ed 2d 890 (1985). (Search conducted three days later).

(f) California v Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed 2d 691 (1991)

i. U.S. Supreme Court held that police officers may search a closed container without a warrant where they have probable cause to believe the container holds contraband. The police may only search the bag and not the entire car.

ii. Changed the law, under old case law police officers had to obtain a search warrant to search a closed container found in a auto even though police had probable cause to believe container had contraband.

(g) Following a valid traffic stop, police officers may conduct a routine dog sniff for narcotics, unrelated to the original basis for the stop, so long as the dog sniff does not unreasonably prolong the duration of the stop. Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed. 2d 842(2005). Illinois Supreme Court adopts, People v. Caballes, 221 Ill. 2d 282, 551 N.E. 2d 672 (2006).

(h) People v. Harris, 228 Ill. 2d 822, 886 N.E. 2d 947 (2008). When a passenger in a car is lawfully seized, the police officers may request that the person provide identification and then use that information to conduct a warrant check so long as it does not unreasonably prolong the duration of the stop. The Court follows the reasoning in Illinois v. Caballes and partially overrules its prior decision in People v. Gonzalez, 204 Ill. 2d 220 (2003).

(i) See, also cases listed under Investigatory Stop, p. 12 above.

g. Consent

1) A search conducted pursuant to consent is a recognized exception to both the probable cause and the warrant requirement. The consent must be voluntary.

(a) When the state attempts to justify a search on the basis of consent, it must demonstrate that the consent was in fact voluntarily given, and not the result of coercion, express or implied. Schneckloth v Bustamonte, 412 U.S.218, 93 S.Ct. 2041, 2059, 36 L.Ed 2d 854 (1973).

(b) Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of the right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. (emphasis added) Schneckloth supra

i. Burden of proof is on the state to show consent was voluntary. Such burden is not discharged by showing no more than acquiescence to a claim of lawful authority. People v Haskell, 41 Ill. 2d 25, 241 N.E. 2d 430 (1968).

(c) A search conducted reliance upon a warrant cannot later be justified on the basis of consent if it turns out the warrant was invalid. Bumper v North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L.Ed. 2d 797 (1968).

(d) Where consent is limited to one search, it cannot be used to justify second search at a later time. People v Jackson, 57 Ill. App. 3d 720, 373 N.E. 2d 729 (1978).

(e) There is no requirement that the suspect be advised of his right to consult with an attorney before he gives consent. People v. Trent, 85 Il. App. 2d 157, 228 N.E. 2d 535 (1967).

(f) No need to advise defendant of his right under the Fourth Amendment prior to consent. People v. Rhodes, 41 Ill. 2d 494, 244 N.E. 2d 145 (1969).

(g) Florida v. Jimeno, 500 U.S. 111 S.Ct. 1801, 114 L.Ed. 2d 297 (1991).

i. Facts: Police officers overhear defendant arranging a drug deal on a public phone. Police observe defendant get into a car and commit a traffic violation. Police stop the defendant, tell him they think he’s carrying drugs, and asked the defendant if they can search his car. The defendant allows the search. Police search a brown bag on the passenger side floor and find a kilo of cocaine.

ii. U.S. Supreme Court held it was reasonable for police to open closed container within the car once defendant gave them permission to search the car. Court noted that the defendant did not put any limits on the search

2) What constitutes “acquiescence to claim of lawful authority”

(a) Voluntary consent was not found where accused consented after officer falsely represented that he had a warrant for the accused. People v Lawson, 119 Ill. App. 3d 42. 456 N.E. 2d 170 (1983).

(b) Consent may be involuntary where the defendant must choose between consenting and being arrested People v Smith, 124 Ill. App. 2d 914, 464 N.E. 2d 1206 (1984).

3) Consent to search by another

(a) Warrantless search may be justified by proof that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

i. Common authority: Mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their might permit the common area to be searched. United States v Matlock, 415 U.S. 164, 94 S. Ct. 988, 993. 39 L.Ed 2d 242 (1974).

(b) Examples

i. People v. Shaffer, 111 Oll. App. 3d 1054, 444 N.E. 2d 1096 (1982). Brother of the defendant had authority to consent where he was frequent visitor.

ii. People v Nolan, 59 Ill. App. 3d 177, 375 N.E. 2d 445 (1978). Defendant’s mother has authority to consent to search of defendant’s room where parents had access to the room and defendant had not locked door nor instructed parent to keep anyone out.

iii. Generally, landlord may not validly consent to search of a leased premises. People v Sedrel, 184 Ill. App. 3d 1078, 540 N.E. 2d 792 (1989); Chapman v United States, 365 U.S. 610, 81 S. Ct. 776, 5 L.Ed 2d 828 (1961).

4) Consent to search by a third party whom the police, at the time or entry reasonably believe possesses the common authority over the premises, but who in fact does not have actual authority, was recently upheld by the U. S. Supreme Court. Illinois v Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, L.Ed 2d (1990).

(a) Key is reasonableness. Police may not always accept a person’s invitation to enter a home.

(b) Rodriguez facts: Police have a conversation with the victim at the victim’s mother’s home. Victim, who appears to have been beaten, related that the defendant-boyfriend had beat her that day and he was asleep at “our” home. She consented to take police to home and allowed police entry with a key where police found defendant sleeping. Police also found cocaine and narcotics paraphernalia. Although victim referred to place several times as “our” apartment, it was determined at motion to suppress that victim, her children and all their clothing had moved several weeks earlier.

5) People v. Henderson, 142 Ill. 2d 258, 568 N.E. 2d 1234 (1991). Third party may demonstrate consent by actions without words. In this case police officers asked the defendant’s mother if defendant was home and she stepped back from the door and motioned the officers to a bedroom in the house. Il. Sup. Ct. held that “her conduct was a wordless invitation to enter,” and the officers could reasonably believe that they were given consent to enter based on the mother’s actions.

6) Georgia v Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L.Ed.2d (2006). Consent given by one co-occupant is not valid in the face of the refusal by another physically present occupant. The warrantless entry search is unreasonable and invalid as to the physically present occupant and

7) Police do not need an arrest warrant when they have consent to enter premises by a third party coupled with probable cause to arrest the defendant. People v Bean, 84 Ill. 2d 64, 417 N.E. 2d 608 (1981).

(a) This is true even though the police did not have exigent circumstances under Payton v New York.

8) Practical considerations

a) Use consent to search form whenever possible

i. Judges are often hesitant to find voluntary consent where defendant or family member denies.

ii. Bring family member to Grand Jury or obtain in a handwritten statement

b) Factors to consider on the issue of voluntariness

i. Were guns drawn?

ii. Forcible entry?

iii. Was defendant or family threatened?

iv. Did police officer lie to defendant or other occupant?

8. Other exceptions

1) Search by school authorities

(a) New Jersey v T. L. O., 469 U.S. 325, 105 S. Ct. 733, 83 L.Ed 2d 720 (1985). Searches and seizures by school officials, although protected by the Fourth Amendment do not require strict adherence to the probable cause requirement. Legality of the search depends on the reasonableness under all circumstances.

i. The search will be upheld if there are reasonable grounds for suspecting the search will turn up evidence that the student has violated or is violating either the law or a rule of the school.

ii. High school teacher discovered defendant smoking in the lavatory. Defendant denied and the teacher searched the defendant’s purse. Observed and retrieved a pack of cigarettes while retrieving cigarettes, teacher observed and recovered rolling papers, marijuana, and evidence of marijuana sales.

b) Safford v. Redding, 129 S.Ct. 2633, 174 L.Ed. 2d 354 (2009). Under the

circumstances, strip-search of student violated student’s 4th Amendment rights.

(c) People v Dilworth, 169 Ill.2d 195 (1996). Il. S.Ct. held the reasonable suspicion standard applied to full-time police officer who was the school liaison officer—officer also had similar duties as school personnel.

d) People v Pruitt, 278 Ill. App. 3d 194, 662 N.E. 2d 540 (1996). Metal detectors in a school meet the reasonable suspicion standard.

e) In re J.A., 85 Ill. App. 2d 567, 405 N.E. 2d 958 (1980). Court upheld the search of student’s coat pocket for marijuana by dean of students who happened to be a part-time juvenile officer. Court held the teacher acted in his role as dean and not as a juvenile officer. Court applied the reasonable suspicion standard.

f) In re Boykin, 39 Ill. 2d 617, 237 N.E. 2d 460 (1968) Ill S. Ct. upheld the warrantless search of a student on school premises by police officers who had been informed by assistant principal that he had received anonymous information that the student had a gun.

g) Picha v Wielgos, 410 F. Supp. 1214 (N.D. Ill. 1976) Federal Court held that probable cause standard was applicable when police officers involved

h) Practical consideration

i. Where practical, have school official conduct search with the officer there to observe the search.

ii. Document the information which provide the “reasonable suspicion”

i) Effective July 1, 1997 “school authorities may inspect and search places and areas such as lockers, desks, parking lots, and other school property and equipment owned or controlled by the school, as well as personal effects left in those places and areas by students, without notice to or the consent of the student, without notice to or the consent of the student, and without a search warrant. As a matter of public policy, the General Assembly finds that students have no reasonable expectation of privacy in these places and areas or in their personal effects left in these places and areas. School authorities may request the assistance of law enforcement officials for the purpose of conducting inspections and searches of lockers, desks, parking lots, and other school property and equipment owned or controlled by the school for illegal drugs, weapons, or other illegal or dangerous substances or materials, including searches conducted through the use of specially trained dogs. 105 ILCS 5/10-22.6.

2) Search by private citizens

(a) The Fourth Amendment requirements do not apply to searches conducted by private individuals. Burdeau v McDowell, 256 U.S. 45, 41 S. Ct. 574, 65 L.Ed 1048 (1921).

(b) The Fourth Amendment does not apply where a search conducted by a private individual when he is acting as an agent or instrument of the state. Coolidge v New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L.Ed 2d 564 (1971). (Police ask defendant’s wife if her husband has any guns in the house and wife brings our 4 guns. S. Ct. upheld search)

(c) Participation by the police in and of itself does not automatically invoke the application of the 4th Amendment where the individual acted independently and without persuasion from the police, the search of the defendant’s possession was without persuasion from the police. People v Heflin 71 Ill. 2d 525, 376, N.E. 2d 1367 (1978).

3) Public business: Maryland v Macon, 472 U.S. 473, 105 S. Ct. 2778, 86 L. Ed. 2d 370 U.S. Supreme Court held that the officers’ entry into a bookstore and later examination of materials offered for sale was not a search and the purchase of magazines did not constitute a seizure for fourth Amendment purposes. Defendant did not have a legitimate expectation of privacy in areas of the store where the general public was invited to enter and transact business.

4) Pen registers

(a) Smith v Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 110 (1979). Installation and use of a pen register to record the telephone numbers dialed on a person’s phone in not a “search” within the meaning of the Fourth Amendment. There is no legitimate expectation of privacy when person dials a number which is conveyed to the telephone company which makes a permanent record of the numbers dialed.

(b) Distinguished from a listening device because pen registers do not record the contents of the communication.

5) Community Caretaking or Safety Exception. Bringham City v Stewart, 547 U.S. 398,126 S.Ct. 1943, 164 L. Ed 2d 650 (2006). Police officer may enter a home without a warrant when they have an objectively reasonable basis to believe an occupant is seriously injured or imminently threatened with such injury.

D. Identification procedures: 5th and 6th Amendment considerations: show-ups

1. Show-up: Eyewitness to a crime is shown only one person to determine whether or not this is the actual offender.

(a) Courts reluctantly approve this procedure under limited circumstances

c) Limited circumstances are due to the urgencies and exigencies that arise after a crime that prevent the use of proper methods.

2. Examples

a People v Moore, 107 Ill.App.2d 343, 244 N.E. 2d 337 (1969). An on-the-spot identification of the accused by a witness to the crime does not fall within the rule against show-up.

b. People v Lippert, 89 Ill. 2d 171, 432 N.E. 2d 605 (1982). Prompt show-up near scene is acceptable police procedure designed to aid the police in determining whether or not to continue to search for the suspect.

c. People v Gerbacher, 44 Ill. 2d 321, 255 N.E. 2d 429 (1970). Viewing by victim in the hospital when is it uncertain if victim will live has been upheld

d. People v Lutz, 103 Ill. App. 3d 976, 431 N.E. 2d 753 (1982). Accidental encounter, where unprompted and positive, is not an impermissible event.

e. People v. Bennett, 376 Ill. App. 3d 554, 876 N.E. 2d 256 (2007). Defendant was not unreasonably detained when he was transported two blocks to the crime scene for purposes of identification.

3. Photographic identification

a. Photographic identification of the defendant by the complaint is a proper means of identification and is properly admitted into evidence. People v Maffioli, 406 Ill. 315, 94 N.E. 2d 191 (1950).

b. 6th Amendment: There is no constitutional right to counsel at a post indictment photo display. United States v Ash, 413, U.S. 300, 93 S. Ct. 2568, 37 L.Ed.2d 619 (1973); People v Scott 23 Ill. App. 3d 956, 320 N.E. 2d 360 (1974).

c. In Illinois, photographic identification procedure should not be used when the defendant is in custody, and a line-up is otherwise feasible. People v Holiday, 47 Ill. 2d 300, 265 N.E. 2d 634 (1970). This rule is not absolute.

1) People v Williams, 60 Ill. 2d 1, 322 N.E. 2d 819 (1975) Extenuating circumstances existed in that the victim had undergone surgery for cancer and was still in bad health.

2) People v Hejka, 15 Ill. App. 3d 181, 303 N.E. 2d 433 (1973) defendant in custody on another drug charge and one victim was still in the hospital

d. Lineup and Photo Spread Procedures (Ch. 725 ILCS 5/107 A-5)

1) Pursuant to statute, all lineups shall be photographed and all photographs shown to a witness shall be disclosed to the accused. Each witness that views a lineup or photo spread shall sign a form that states: a) the suspect may not be in the lineup and that the witness is not obligated to make an identification; b) the witness should not presume that the person administering the lineup knows the suspect in the case; c) suspects in the lineup should not appear to be substantially different from the fillers.

2) Copies of the lineup photographs or photo spreads must be inventoried and treated as evidence.

e. Practical considerations

1) Although there in no per se rule as to the number of photos necessary for the proper photo array, a Good Rule of Thumb is

(a) One suspect, five photos total

(b) Two suspects, seven photos total

(c) Three suspects, nine or more photos – may want to use more than one photo array

2) Photos should be of the same type (all Polaroid’s, all mug photos), same size and color.

3) Photos should be of the same age group, complexion, facial hair, etc. – block out names on the front of photos.

4) Preserve photos – inventory: Don’t Lose

5) Have the witness/victim sign and date photos (to prevent recantation)

6) Photos of a juvenile may be shown to witnesses/victims for identification purposes during the course of a police investigation. 705 ILCS 405/1-7 (d)

7) Although the photo array was suggestive, the witness may still be allowed to make an in-court identification is independent of the photos.

4. Line-ups

a. There is no right to an attorney prior to the initiation of the adversary proceedings (i.e. prior to formal charges). People v Johnson, 55 Ill. 2d 62, 302 N.E. 2d 20 (1973); People v. White, 334 Ill. Dec. 943, 917 N.E. 2d 1018 (1st District 2009). Good discussion of the distinction between the 5th Amendment and 6th Amendment right to the presence of an attorney at a line-up.

1) This is the preferred method of identification

b. Police should not inform the witness that the defendant is in custody or that the man he picked out in the photo would be in the line-up.

c. People v Guyton, 101 Ill. App. 2d 799, 428 N.E. 2d 998 (1981). Fact that the defendant in the line-up wore clothing similar to that worn by the assailant and others in the line-up were dissimilar did not render the line-up unduly suggestive.

d. 6th Amendment

1) A post-indictment line-up is a critical stage of the prosecution at which the defendant is entitled to the presence of counsel. U. S. v Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed 2d 1149 (1967).

2) People v Curtis, 113 Ill. 2d 136, 497 N.E. 2d 1004 (1986). Line-up held after the initiation of the adversary proceedings without the presence of counsel is a violation of the defendant’s 6th Amendment rights.

3) People v. White, 334 Ill. Dec. 943, 917 N.E. 2d 1018 (1st Dist 2009). 6th Amendment right to have an attorney present at line-up is violated when attorney is not allowed in the room where the witness is viewing the suspects and when he is not allowed to view the witness’s identification.

4) Although evidence of the line-up and the witness’ identification are inadmissible, the in court identification may be permitted if the state can show the in-court identification is based on observations of the witness other than the line-up

5) Defendant may waive his right to an attorney at the line-up. This fact should be documented in the reports.

6) Defendant in custody and charged on one case, may be placed in a line-up without notifying his attorney on a second, unrelated case. Kirby v Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L.Ed 2d 411 (1972).

7) People v Wilson, 116 Ill. 2d 29, 506 N.E. 571 (1987). Illinois Supreme Court has held that police officer’s presentation of a complaint to a judge to obtain an arrest warrant to not begin the adversary proceeding so that the defendant was entitled to an attorney at a subsequent line-up.

e. Practical considerations

1) Same rule of thumb regarding the number of photos shown to a witness (D.3.d) should be used with the number of persons in a line-up.

2) Other participants in the line-up should be similar in age, race, build and hair color.

3) Take several photos in case of bad exposure and/or lost photos

(a) Get the names, addresses and identifiers of “fillers” in the line-up.

(b) Take a close-up photo of defendant after line-up (moles, tattoos etc.)

4) If the witness identifies a piece of clothing, jewelry, etc. on defendant in the line-up, inventory.

E. Confessions: 5th and 6th Amendment considerations.

1. Introduction

a. 5th Amendment v 6th Amendment

1) 5th Amendment – No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…

2) 6th Amendment – In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury or the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

3) Distinction: 6th Amendment rights come to play after defendant is charged. 5th Amendment rights generally deal with pre-charging situations.

4) Illegal arrests: If defendant is arrested illegally, the state has the burden of showing the confession was not obtained as a result of exploitation of the illegal arrest. Brown v Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).

a) Factors

i. Temporal proximity of arrest and confession

ii. Presence of intervening circumstances

(b) People v. Scott, 366 Ill. App. 3d 38, 852 N.E. 2d 531 (2006) Good discussion of the factors the court should look at in

determining whether a statement is attenuated from the 4th Amendment violation. See, also People v. Johnson, 237 Ill. 2d 81, 927 N.E. 2d 1179 (2010).

5) Purpose and flagrancy of the official misconduct

8) Were Miranda rights given and voluntarily waived?

2. Fifth Amendment considerations when taking a statement

a. General statutory considerations when taking a statement

1) Rights on arrest 725 ILCS 5/103-1

2) Treatment while in custody Sec. 5/103-2

a) Right to remain silent;

b) No unlawful means to obtain statement;

c) Provide food, shelter and medical treatment, if necessary

3) Right to communicate with attorney and family Sec. 5/103-3

(a) Must allow arrestee a reasonable number of phone calls to consult with attorney and/or family

b) If arrestee transferred to another facility, right is renewed

4) Right to consult with attorney Sec. 5/103-4

(a) Person in custody, whether or not he is charged, shall be allowed to consult with an attorney of his choosing. He shall be allowed to consult with an attorney alone and in private as many times for such period of time as reasonable.

5) Mandatory Duty Officer, Sec. 5/103-8

(a) Police officers who intentionally prevent accused from exercising any rights shall be prosecuted for official misconduct.

b. Miranda Rights

1) Prior to questioning a suspect who is in custody, the police must inform him of his rights under Miranda v Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed 2d 694 (1966).

a) Miranda applied to police initiated conversations

b) Miranda applied to custodial interrogations, video taped statements 725 ILCS 5/103-2.1

c) Once Miranda is complied with it is not necessary to repeat warnings at the beginning of each interview. People v. DeGorski, 382 Ill. App. 3d 135, 886 N.E. 2d 1070 (2008).

d) Exact recital of precise language in the Miranda decision is not required California v Prysock, 453 U.S. 355, 101 S. Ct. 2806, 69 L. Ed 2d 696 (1981). Florida v. Powell, 130 S.Ct. 1195, 175 L.Ed. 2d 1009 (2010).

e) Police cannot “question first, warn later.” Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed. 2d 643 (2004). See, also People v. Lopez, 229 Ill. 2d 322, 892 N.E. 2d 1047 (2008).

2) Public Safety Exception to Miranda

(a) After placing a suspect under arrest, the police may ask the suspect if he has a gun and/or where the gun is at. New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984).

(b) People v Williams, 173 Ill.2d 48, 670 N.E. 2d 638 (1996) (while handcuffing a suspect, police ask him whether he has any weapons and he responds the weapons are in his coat in the attic).

3) School official are not required to give student Miranda warnings prior to questioning even though a police officer is present during the school officials questioning. – People v Parkhurst, 365 Ill, App. 3d 248, 848 N.E 2d 628 (2006).

2) What constitutes a custodial interrogation?

(a) Berkemer v McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed 2d 317 (1984). Miranda warnings are not required for roadside questioning of a motorist detained for a traffic violation. However, Miranda must be given in a custodial interrogation in a misdemeanor or traffic case.

(b) People v Howell, 44 Ill. 2d 264, 255 N.E. 2d 435 (1970). Miranda was not required when defendant goes into the police station and said he shot a man and wanted to turn himself in.

c) People v Watts, 101 Ill. App. 2d 36, 241 N.E. 2d 436 (1968). Miranda not required where defendant makes a spontaneous, volunteered statement in a telephone call to the police.

d) Oregon v Mathiason 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). No Miranda was required where the defendant voluntarily came to the police station, was immediately told he was not under arrest and left the station without being stopped after the interview. This situation is rare.

e) Facts in determining if there was a custodial interrogation

i. Place of the interrogation

ii. Any statements or nonverbal conduct indicating the defendant is not free to leave

iii. Extent of the police officers knowledge and focus of the investigation

iv. Intentions of the police officer

v. Objective circumstances surrounding an investigation – What a reasonable man, innocent of a crime, would perceive?

f) Practical considerations

i. Judges are quick to find that a suspect was not free to leave and therefore “in custody”

ii. When in doubt, give the warnings

(g) People v. Lopez, 229 Ill. 2d 322, 892 N.E. 2d 1047 (2008). Suspect’s initial voluntary presence at the police station does

not negate the possibility that subsequent police conduct will lead a reasonable person to believe they were under arrest. The initial voluntary accompaniment may devolve into an arrest situation, where Miranda Rights are required. See, also

People v. Alfaro, 386 Ill. App.3d 271, 896 N.E.2d 658 (2008)

3) Once defendant invokes his right to an attorney, may he be questioned further: Short Answer NO. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed. 2d 378 (1981) created a presumption that once a suspect invokes the right to an attorney, any waiver of the right in response to subsequent police custodial interrogation is involuntary.

(a) Smith v Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 48X (1984).

i. Once defendant has invoked his right to an attorney, he may not be questioned further until an attorney is made available unless he waives his earlier request

ii. Once defendant invokes his right to an attorney he can only waive it if:

* Defendant initiates further discussions with the police

* He knowingly and intelligently waived the right he had invoked

iii. State cannot establish a knowing waiver merely by showing the defendant responded to further questioning

(b) Berghuis v. Thompkins, 2010 U.S. LEXIS 4379 (June 1, 2010). A suspect who wishes to invoke his right to remain silent must do so unambiguously. A suspect’s silence after being given his Miranda warnings is not an unambiguous invocation of his right to remain silent.

(c) Maryland v. Schatzer, 130 S.Ct 1213, 175 L.Ed. 2d 1045 (2010). S. Ct. places a 14-day limit on questioning when a defendant invokes his right to an attorney after Miranda.

(c) Arizona v Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed 2d 704 (1988).

i. Facts: Defendant is arrested on a burglary charge; he is given Miranda and invokes his right to an attorney. Three days later while in custody on the first charge, and prior to being appointed an attorney on that charge, he is questioned by a second police officer about an unrelated burglary. Defendant waives Miranda and confesses to the second burglary. Second police officer did not know defendant had invoked right in first case.

ii. U.S. Supreme Court held that the rule once defendant has invoked his right to an attorney he is not subject to further interrogation until an attorney is made available to him, applies when the police initiated interrogation occurs in a separate investigation.

iii. Since the defendant’s first request for an attorney was contained in a police report, the second police officer should have known about it – he could not hide behind his own lack of diligence.

(d) McNeil v Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 115 L.Ed. 2d 158 (1991).

i. Facts: Defendant is arrested in Omaha, NE, on an arrest warrant for armed robbery out of Milwaukee WI. Police in Omaha give defendant his Miranda warnings and ask him about the armed robbery. The defendant refuses to answer questions, but does not request an attorney. Defendant is brought back to Wisconsin and a public defender is appointed for him on the armed robbery charge. While in custody on the armed robbery, detective from another town question the defendant on an unrelated murder from that town. After being given Miranda warnings, the defendant confesses.

ii. U.S. Supreme Court held this confession was admissible. Defendant’s confession was admissible. Defendant’s invocation of his 6th Amendment right to an attorney on the armed robbery does not apply to questioning on an unrelated murder. The 6th Amendment right to an attorney is offense specific – it cannot be invoked once for all future prosecutions. The 6th Amendment right to an attorney does not attach until prosecution is initiated, either by way of formal charges, preliminary hearing, indictment, information, or arraignment.

iii. Key: The defendant did not request an attorney during the first questioning on the armed robbery

iv. McNeil reasoning has been followed in Illinois People v Maxwell, 148 Ill, 2d 116 592 N.E. 2d 960 (1992) People v Coleman 223 Ill. App. 3d 0975, 586 N.E. 2d 270 (1991).

(e) Minnick v Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990).

i. Defendant is arrested in California for a murder committed in Mississippi. Defendant is given his Miranda warnings and said, “Come back Monday when I have an attorney.” Police stop questioning and defendant is appointed an attorney for his extradition, whom he speaks to several times. ON Monday, police go back to jail, give defendant his Miranda warnings and he give police a statement without his attorney present. Police also told defendant he could not refuse to speak with them.

ii. U.S. Supreme Court said when the defendant requests an attorney, questioning must cease and police may not reinitiate questioning without an attorney present, regardless of whether the defendant has consulted with an attorney.

(f) People v Young 365 Ill. App. 3d 753 (2006)

i. Defendant must invoke his Miranda warnings; a third party cannot invoke rights for defendant. Case follows Moran v Burbine 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed. 2d 410 (1986).

ii. In this case Il. App. Ct. reiterated its previous stance that parent or other third party cannot invoke right to attorney for minor-defendant.

(g) People v. Villalobos, 193 Ill. 2d 229, 737 N.E. 2d 639 (2000). Defendant cannot anticipatorily invoke Miranda Rights prior to custodial interrogations. See, also People v Dale Sealey 311 Il. App. 3rd 120, 724 N.E. 2nd 110 (1999) Defendant charged with UUW and defendant’s attorney files a “Notice of Representation” indicating that the attorney will represent the defendant on any future cases. Defendant was subsequently questioned and confessed to murder. Holding – the 6th Amendment right to counsel is offense specific and cannot be invoked for future offenses.

(h) Practical considerations

i. Once the defendant who is in custody requests an attorney the only way he may be interviewed again is if he initiates the conversation. This is true whether you are interviewing him on the case he is in custody for or for another unrelated case.

* If he initiates the conversation, this should be documented in your report

ii. Note the difference in asking for an attorney and a subject saying he does not wish to talk about the incident right now. Police may reinitiate the conversation in the second instance under certain circumstances (see below)

iii. When contemplating speaking with a charged defendant in custody about another offense, discuss the alternatives with the local prosecutors – law is changing.

iv. Once the defendant has invoked his right to remain silent, police may be able to question the defendant again.

* Key: Whether the defendant’s right to cut off questioning was scrupulously honored.

* Factors under Michigan v Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L.Ed. 2d 313 (1975).

> Was defendant properly advised of Miranda rights at both interrogations

> When defendant invoked his right to remain silent at 1st questioning, police officers immediately stopped questioning

> Was there a significant lapse of time between first and second questioning

> Was the questioning directed at the same crime, or a different unrelated crime

v. If an attorney appears at the police station on behalf of the defendant, must be given access to the defendant? It depends – questions that must be answered:

* Did the defendant know that an attorney was being retained for him?

* Was the attorney present at the police station and did he request access to the defendant before the completion of the custodial interrogation of the defendant? Did the police refuse or fail to inform the defendant of the immediate availability of an attorney? People v Griggs, 152 Ill. 2d 1, 604 N.E. 2d 257 (1992); People v Smith 248 Ill. App. 3d 80, 618 N.E. 2d 426 (1993).

vi. Other examples: special circumstances

* Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L.Ed 2d 222 (1985)

Facts: Defendant gave the first uncoerced statement without being warned of his Miranda rights. He gave a second statement after being properly advised of his Miranda rights.

U. S. Supreme Court held that second statement is not rendered inadmissible solely because of the prior unwarned admission. 2nd statement was voluntary & in view of the surrounding circumstances and the entire course of police conduct.

* Connecticut v Barrett, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed 2d 920 (1987). Fifth Amendment did not require suppression of oral confession where, after Miranda, defendant agreed to speak to police but said he would not sign a written statement w/o an attorney.

* Illinois v Perkins, 496 U.S. 292, 110 S. Ct. 2394, 110 L. Ed 2d 243 (1990). Miranda warnings were not required when a jail inmate is engaged in incriminating conversations by an undercover policeman posing as a fellow inmate

Key: Police officer was not talking to defendant about the case he was in jail for.

* Pennsylvania v Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L.Ed 2d 528 (1990). Miranda warnings are not required prior to routine booking questions such as name, address, age, etc. Also videotape not testimonial.

* People v. Braggs, 209 Ill. 2d 492, 810 N.E. 2d 472 (2004); People v. Bernasco, 138 Ill. 2d 349, 562 N.E. 2d 958 (1990). Seminal cases discuss what constitutes a “knowing and voluntary” waiver of Miranda when dealing with suspects who have a low IQ.

vii. Practical considerations:

- Have Miranda form handy at all times - pocket-size.

- Ask defendant if the understands after each right and obtain an affirmative response.

- Big difference between defendant saying he does not want to talk to saying he wants an attorney.

c. Voluntariness

1) Standard: Whether or not a confession is voluntary will depend on the “totality of circumstances”?

2) Factors the courts look at in determining voluntariness

(a) How long was the defendant in custody? 48 hour rule – if the statement is made within 48 hours, it is presumed to be voluntary; after 48 hours, the sates has the burden of proving; 48 includes weekends and holidays. County of Riverside v McLaughlin, 500 U.S. 44, 111 S. Ct. 116, 114 L.Ed 2d 49 (1991).

People v Willis, 215 Ill. 2d 517 (2005) Defendant’s detention for 73 hours before Gerstein hearing did not, in and of itself render defendant’s statement inadmissible. Delay is one factor of the totality of circumstances for voluntaries. S. Ct. weighed factors and held defendant’s statement in this case was voluntary.

Ill. Cases can go either way based on individual facts – Be Careful

(b) Defendant’s age and criminal experience

(c) Physical coercion

(d) Psychological coercion or verbal threats

(e) Isolation from family and friends

i. This is more important with juvenile offenders

(f) Promise of reward, leniency, or immunity

(g) Mental capacity of the defendant

- Schools

- Employers

- Neighbors

(h) Familiarity with the English language

(i) Failure to provide necessities (food, water, sleep, bathroom)

(j) Whether defendant was in an extreme drugged or intoxicated state

3) Failure of one or more factors does not necessarily mean the statement is involuntary. Must look at the total picture.

4) Deceit, trickery or fraud used by police to obtain a statement will not invalidate the confession as a matter of law, but it is a factor to be considered.

e) Trial courts do not like tricks or deceit on the part of law enforcement

(b) Cases go both ways:

i. People v Martin 102 Ill. 2d 412 466 N.E. 2d 228 (1984). Falsely informing defendant another had identified him as the trigger man did not invalidate statement.

ii. People v Barton 122 Ill, App. 3d 1079, 462 N.E. 2d 538 (1984). Misstatement regarding fingerprints by police and state’s attorney, statement was inadmissible.

5) Promise of reward, leniency, or immunity

a) People v Eckles, 128 Ill. App. 3d 276, 470 N.E. 2d 623 (1984). In order to constitute a promise of leniency that would render a statements involuntarily, police officer’s promise must be coupled with a suggestion of a specific benefit. A statement to the defendant that he would inform State Attorney and the court of defendant’s cooperation is not such a promise.

b) Any inducement must come from the police and must not arise from mere operation of defendant’s mind

c) Practical consideration: No Deals in police station without having State’s Attorney in from the beginning.

6) Mental capacity of the defendant

a) People v Townsend 11 Ill. 30 141 N.E. 2d 729 (1957). Fact that defendant has been committed to a mental institution in the past did not necessarily indicate he lacked mental capacity to voluntarily confess, so long as he is capable of narrating past events or of stating his own participation in the crime.

b) People v Devine, 17 Ill. App. 3d 105, 309 N.E. 2d 76 (1974) Fact that the defendant has subnormal mentality does not by itself make confession involuntary.

c) Confession is not necessarily inadmissible because defendant is not in full possession of his faculties due to a wound or due to a weakened condition from a wound.

i. People v Strickland, 129 Ill. 2d 550, 554 N.E. 2d 758 (1989). Illinois Supreme Court came to a contrary decision where police withheld medical treatment for defendant’s injured finger while they questioned him.

7) It is not coercion to tell defendant that witnesses or codefendant has implicated him in the crime. People v Smith, 93 Ill. App. 3d 1133, 418 N.E. 2d 172 (1981).

(a) Once defendant brings in extrinsic evidence of physical coercions, state must prove by clear and convincing evidence that injuries were not the result of police brutality. People v Davis 35 Ill. 2d 202, 220 N.E. 2d 222 (1966): People v. Wilson, 116 Ill. 2d 29 (1987).

b) People v Banks 192, Ill. App. 3d 986, 549 N.E. 2d 766 (1989)

i. Same holding as Wilson

ii. Appellate Court here ruled the trial court should have allowed defendant to bring in evidence of other defendants who claimed they were similarly abused.

c) Hard burden for State to overcome. However, see People v. Richardson, 234 Ill. 2d 233, 917 N.E. 2d 501 (2009). In this case, although it was undisputed that the defendant received a bruise on his face while in police custody, the State met its burden of proving the statement was ot the product of coercion.

d. SPECIAL PROBLEMS WITH JUVENILES (under 17 years old)

1) The key inquiry is the minor’s age at the time of the offense.

2) For purposes of charging an individual with a criminal offense:

a) If 17 or older – charge as adult

b) If younger than 17, charge as a juvenile UNLESS the automatic transfer statue applies

3) Regardless of whether a minor (any individual under the age of 17) is charged as a juvenile or an adult, a minor must be treated as a juvenile while in custody. Process, detain and question the minor according to the juvenile court act.

AUTOMATIC TRANSFER CASES

1. 705 ILCS 405/5-130: Charge as an adult all 15 and 16 year olds who are charged with committing:

a) 1st degree murder

b) Aggravated battery with a firearm

c) Armed robbery with a firearm

d) Aggravated Vehicular hijacking with a firearm

e) Some violations or the UUW statue (24-1 (a), (1), (3), (4) or (10) when the offense is committed in a school or on school property, regardless of the time of day or night or time of the year.

2. 705 ILCS 405/5-130: Charge as an adult all 13, 14, 15 and 16 year olds charged with committing:

a) 1st degree murder committed during the course of an aggravated criminal sexual assault

b) 1st degree murder committed during the course of a criminal sexual assault

c) 1st degree murder committed during the course of an aggravated kidnapping.

***This DOES NOT include minors charged

under a theory of accountability***

3. 705 ILCS 405/5-130: Charge any minor as an adult any minor who commits the offense of Escape of Bail Bond when the minor already has a case that is subject to the automatic transfer provisions noted above.

4. 705 ILCS 405/5-130: Charge as an adult any minor who has already been convicted of a crime in adult court.

THE ROLE OF THE YOUTH OFFICER

a. When questioning a minor, the Youth Officer must be a separate person from the officer/investigator/detective who is conducting the questioning.

b. The Youth Officer must:

1) Play an active, not passive role.

2) Confer alone with the minor. Introduce yourself and explain your role.

3) Make sure the minor is advised of Miranda rights. Explain the rights to the minor in easily understood language – if necessary.

4) Make sure the minor is advised that he or she may be tried as an adult, if that is the case.

5) Make sure the minor is treated properly (food, use of washroom, and rest when necessary) is kept separate from adults and is not coerced.

6) Contact the minor’s parents, guardian or concerned adult

7) Be present during all questioning.

QUESTIONING MINORS

1. For all minors under the age of 13 at the time of commission of a homicide or sex offense the minor MUST be represented by counsel during the entire custodial interrogation of the minor. When the minor’s family cannot afford an attorney, there can be no questioning of the minor.

Factors considered by the Court when determining whether a juvenile’s confession

1) What are the statutory requirements when a juvenile is taken into custody?

(a) When may a police officer take a juvenile into custody? 705 ILCS 405/5-401 (a)

i. When the officer has reasonable cause to believe minor is delinquent – has committed a crime

ii. When minor has be adjudged a ward of the court and has escaped commitment (this section is with or without a warrant)

iii. When the officer reasonably believes the minor has violated conditions of probation supervision ordered by a court.

(b) What must be done once the juvenile is in custody? 705 ILCS 405.5-405(1) & (2)

i. Immediately make a reasonable attempt to notify a parent, guardian, or person with whom minor resides, and inform them that

* Minor is in custody

* Where he is being held

ii. Without unnecessary delay take the minor to the nearest juvenile police officer

iii. Without unnecessary delay deliver minor to court

(c) Minor must be kept separate from confined adults and may not be in the same cell, room or yard with adult arrestees. 705 ILCS 405/5-410 (c)(v)

(d) 40 Hour Rule – Minors must be brought before a judge within 40 hours, exclusive on Saturday, Sunday, or court-designated holidays. If not brought before judge within this time, minor must be released. 705 ILCS 405-5-415 (1)

(e) 12 Hours Rule – No minor shall be detained in a county jail or municipal lock-up for more than 12 hours unless a crime of violence in which the minor can be held for 24 hours. If the minor is under 12 yeas of age, he shall not be detained more than 6 hours. The period of detention is deemed to have begun once the minor has been placed in a locked room or cell or handcuffed to a stationary object in a building housing a county jail or municipal lock-up. Time spent transporting the minor is not considered to be the time of detention or secure custody. Violation of the 12 hour rule shall not, in and of itself, render inadmissible evidence obtained in violation of the rule. 705 ILCS 405/8-410 (c) & (c) (v) 7 (c)

2) Compliance with the statutory requirements are additional factors which courts speak of in determining the totality of the circumstances for juveniles.

3) Whether or not these stationary requirements must be afforded a 15 or 16 years old charged automatically as an adult is not clear

(a) Case law indicated these safeguards still apply

4) The role of the Youth Officer (see above)

5) Practical considerations is obtaining confessions from a juvenile

(a) Have a youth officer (for parent/guardian) present when questioning

(b) If you are investigating a ease which would automatically transfer minor into adult court, advise him of this along with his Miranda warnings

(c) Make an extra effort to notify parent or guardian. Record name and time spoken to

(d) Courts look closer at minors IQ, schooling, mental capacity, criminal background etc.

i. Find out background ahead of time and record information that is helpful in reports

(e) Police cannot disclose identity of minor in releasing information to general public as to the arrest or disposition of any case. 705 ILCS 405/1-7 (e)

(f) Check the department’s general order – they may be more or less restrictive than required by law.

* Recent cases, People v. Minniti, 373 Ill. App. 3d 55, 867 N.E. 2d 1237 (2007) contains a good discussion of the extra safeguards when questioning a juvenile. People v. Marvin, 383 Ill. App. 3d 693, 890 N.E. 2d 984 (2nd District 2008), 2nd Dist. Court of Appeals finds that a juvenile officer has a physical guardian role. Dispute between the Appellate District Courts regarding the juvenile officers’ role.

6. Confession: Practical considerations in general

1) Single – most important asset to a successful prosecution is a statement from the accused

2) Types of statements

(a) Oral

(b) Handwritten – by detective or State’s Attorney

(c) Court reported – also may be sworn to

(d) Audio or video taped – 725 ILCS 5/103-2.1

3) Important to control situation

(a) Keep the number of witnesses to the statement to a minimum

(b) Keep suspect in a separate area, away from other suspects and/or witnesses – so they cannot compare notes

4) If practical, have a State’s Attorney take the statement

(a) Judges and juries put more credibility in the State’s Attorney

5) If defendant made a statement, make sure it is written down

(a) Judge will not believe it if it is not recorded

(b) Defendant is entitled to know about statement prior to trial

6) Speak to partner and other officers prior to writing reports – avoid inconsistencies that will be used to attack your credibility later.

7) Anticipate problems

(a) Example – Ask defendant in statement how far he got in school, can read and write, age, intoxication, etc.

(b) If language barrier, have someone you know and trust translate – not an outsider

(c) Take a photo of the defendant after the statement is taken and have the defendant sign and date

i. Show lack of cuts/bruises

(d) Have the defendant read the statement out loud before he signs to make sure he can read and write

i. Have the defendant make corrections himself

8) Corroborate detail of statement by physical evidence and follow up on information learned from the defendant

3. 6th Amendment considerations

a. Massiah v United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L.Ed 2d 246 (1964). Once Formal charges have been instituted an attorney must be present during any questioning of the defendant about those charges

b. Rothgery v. Gillespie County, 554 U.S. 191, 128 S.Ct. 2578, 171 L.Ed. 2d 366 (2008). 6th Amendment. Defendant’s initial appearance before a judge, where he learns the charge against him and his liberty is subject to restriction, marks the start of the adversary judicial proceedings that trigger attachment of the 6th Amendment right to counsel.

c. Montejo v. Louisiana, 129 S.Ct. 2079, 173 L.Ed. 2d 955 (2009). U.S. S.Ct. overrules Michigan v Jackson, 475 U.S. 625 (1986). (Confession obtained from the defendant during a police-initiated conversation after the defendant has requested an attorney at arraignment, but before one has been appointed, violated the 6th Amendment. Any waiver is invalid.) The question of whether defendant waived his right to an attorney after an attorney was appointed for him by the court is now governed by the 5th Amendment standards (totality of the circumstances test).

d. Illinois v Patterson, 487 U.S. 285, 108 S. Ct. 2389, 101 L.Ed 25d 261 (1988)

1) Facts: two gang related incidents. Defendant is arrested Miranda was given and waived and defendant admitted being engaged in fight but denied knowledge of 2nd murder. Police develop other info and indict defendant for 2nd incident (murder). Enroute to jail after incident defendant volunteers information on murder, he is given Miranda and confesses

2) U.S. Supreme Court held that admonishing defendant of his Miranda rights and defendant’s waiver also waived his 6th Amendment right to counsel. Court rejected defendant’s claim that the 6th Amendment right to counsel is more difficult to waive that the 5th Amendment right.

4. Eavesdropping devices and electronic criminal surveillance

a. Judicial supervision of the use of eavesdropping devices 725 ILCS 5/108A et seq.

1) Where any one party to a conversation to occur in the future has consented to the use of an eavesdropping device to overhear or record the conversation, a judge may grant approval to an application to use an eavesdropping device. Sec. 5.108A-3 (a)

2) Procedure

(a) Gather information which will form the basis of probable cause to believe the target has committed or will commit a felony

(b) Meet with the State’s Attorney’s Office and present the information which you believe constitutes probable cause

(c) If the State’s Attorney agrees there is probable cause, prepare an application

i. Name of law enforcement agency

ii. Name of consenting party

This manual is for informational purposes only and is not complete or intended and should not be construed or understood as legal advice.

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