Constitutional Issues for Illinois Trial Attorneys

Constitutional Issues for Illinois Trial Attorneys:

A reference guide to

4th, 5th, and 6th Amendment Issues for attorneys practicing in the criminal law field

John J. Hynes

Associate Judge

Circuit Court of Cook County

This manual is designed as a quick-reference guide to constitutional issues for attorneys practicing in the field of criminal law. Although the manual is periodically updated, the case law in this area is always changing. Moreover, many of the holdings by the courts are very fact-specific. Consequently, practitioners are advised to supplement the case law cited herein with their own research.

Chapter 1 – The Fourth Amendment...... 1

General Overview...... 1

The starting Point: United States and Illinois Constitution...... 1
Exclusionary Rule...... 1
Good Faith Exception...... 2
The Three Levels of Police-Citizen Encounters...... 3
Consensual Encounters...... 3
What constitutes a “Seizure” for the 4th Amendment...... 3
Who may contest a search under the Fourth Amendment...... 4
Searches by Private Citizens...... 5

Investigatory Stops...... 5

Basis for Investigatory Stops...... 5
Illustrative Cases...... 7

Arrest Without A Warrant...... 8

General Overview...... 8
Illinois Statutory Requirements for Arrest, 725 ILC 5/107-1, et seq...... 8
Practical Considerations...... 9
Illustrative Cases...... 10
Warrantless Arrest at a Suspect’s Home...... 10
Voluntary Accompaniment...... 12

Arrest Pursuant to a Warrant...... 12

Arrest Warrants...... 12

Search Warrants...... 14

General Overview...... 14
Execution of a Search Warrant...... 15
Detention and Search of Persons and Premises...... 16
Motions to quash the Search Warrant...... 17
Franks Motion...... 17

Exceptions To The Warrant Requirement...... 18

General Overview...... 18
Search Incident to Arrest and Protective Sweeps...... 18
Custodial Searches and Inventory Searches of Vehicles...... 19
Hot Pursuit...... 20
Plain View...... 20
Open Fields...... 21
Traffic Stops...... 22
Automobile Exception...... 23
Consent...... 24
Searches by School Authorities...... 25
Miscellaneous Fourth Amendment Issues...... 26

Chapter 2 – Identification Procedures...... 27

General Overview...... 27

The starting Point...... 27
Federal Constitutional Requirements...... 27
Illinois Statutory Considerations. 725 ILCS 5/107A-5...... 29

Pre-Trial Identification Procedures...... 29

Show-ups...... 29
Photographic Identifications...... 30
Lineup Procedures...... 30

Contesting the Pre-Trial Identification Procedures...... 31

Motion to Suppress the Identification...... 31

Chapter 3 – Statements by the Accused...... 33

Overview...... 33

Starting Point...... 33
Illinois Statutory Considerations...... 33
Fourth Amendment Considerations...... 34

Sixth Amendment Considerations...... 36

The Starting Point for Sixth Amendment Analysis...... 36
Waiver of the Sixth Amendment Right to Counsel...... 36
Illustrative Cases...... 37

Fifth Amendment General Considerations...... 37

General Overview...... 37

Fifth Amendment Miranda Issues...... 38

The Starting Point: Miranda v. Arizona...... 38
What Constitutes Custodial Interrogation...... 39
Custodial Interrogation: Illustrative Cases...... 40
Knowing and Intelligent Waiver...... 41
Knowing and Intelligent Waiver: Illustrative Cases...... 42
Right to Remain Silent...... 42
Right to an Attorney...... 43
Right to an Attorney: Illustrative Cases...... 44

Fifth Amendment Voluntariness Issues...... 45

General Overview...... 45
Legality and Duration of the Detention...... 46
Physical Abuse by the Police...... 47
Other Factors Under the Totality of the Circumstances Test: Illustrative Cases.....48

Chapter 1The Fourth Amendment

GENERAL OVERVIEW

The starting point: United States and Illinois Constitution

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. United States Constitution, Fourth Amendment

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. Illinois Constitution, Article 1, section 6. Ill. Const. 1970, art. I, § 6

Note the slight differences in the wording between the Illinois Constitution and the U.S. Constitution. When asked to address the differences between the two, the Illinois Supreme Court has adopted a “limited lockstep approach.” People v. Tisler, 103 Ill. 2d 226, 255, 469 N.E. 2d 147 (1984). The limited lockstep approach allows the Illinois Supreme Court to consider “state tradition and values as reflected by long-standing state case precedent.” People v. Caballes, 221 Ill. 2d 282, 314, 851 N.E. 2d 26 (2006). However, the Illinois Supreme Court generally construes the language of the Illinois Constitution as being synonymous with the U.S. Constitution.

Exclusionary Rule

The exclusionary rule is a judicially created remedy which prohibits the use of evidence obtained in violation of the Fourth Amendment. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
Fruit of the Poisonous Tree Doctrine. Under this corollary of the exclusionary rule, not only is the evidence directly obtained from the unreasonable search excluded; all evidence obtained or derived from the exploitation of the Fourth Amendment violation is excluded. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)

Good Faith Exception

The United States Supreme Court first announced the Good Faith Exception to the Exclusionary Rule in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The Court held that the 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.
The Leon Court reasoned, “if the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment. Leon, 468 U.S. at 919, citing Illinois v. Gates, 462 U.S.213, 260-261, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); United States v. Janis, 428 U.S. 433, 459, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976); Brown v. Illinois, 422 U.S. 590, 610-611 (1975). Where the officer’s conduct is objectively reasonable, excluding evidence will not further the ends of the exclusionary rule in any appreciable way. Leon, 468 U.S. at 919-920.
The Supreme Court has extended the good faith exception to other areas:
The good faith exception was extended to searches conducted in reasonable reliance on subsequently invalidated statutes. Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).
The good faith exception applied to cases where the police reasonably relied on erroneous information concerning an arrest warrant in a database maintained by judicial officers. Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995).
The good faith exception in Evans was extended where police employees erred in maintaining records in a warrant database. Isolated, nonrecurring police negligence lacksthe culpability justifying the harsh sanction of exclusion. Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009).
The good faith exception was extended to searches conducted in reasonable reliance on judicial precedent that was later overturned. Davis v. United States, U.S. , 131 S. Ct. 2419, 180 L. Ed. 2d 2011 (2011).

The Three Levels of Police-Citizen Encounters

The courts have recognized that not every encounter between the police and a private citizen implicates the 4th Amendment. The courts have divided police-citizen encounters into three tiers. People v. Luedemann, 222 Ill. 2d 530, 544, 857 N.E. 2d 187 (2006).
The three tiers are:
Arrests, which must be supported by probable cause;
Investigatory stops, also known as Terry stops, which must be supported by reasonable, articulable suspicion of criminal activity; and
Consensual encounters that involve no coercion or detention and, consequently, do not implicate the 4th Amendment. Id.
The Illinois Supreme Court in Luedemann noted that state appellate and supreme courts often mistakenly labeled the third tier, consensual encounters by the term “community caretaking.” The Court noted that community caretaking refers to a capacity in which the police act when performing some task unrelated to the investigation of a crime, rather than describing the type of police-citizen encounter. Luedemann 222 Ill. 2d at 545-546. See, also People v. McDonough, 239 Ill. 2d 260, 269, 940 N.E. 2d 1100 (2010).
Arrests and Investigatory Stops will be discussed in more detail later on in the materials.

Consensual Encounters

A police officer does not violate the 4th Amendment merely by approaching a person in public to ask questions if the person is willing to listen. Luedemann, 222 Ill. 2d at 549, citing United States v. Drayton, 536 U.S. 194, 200, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002); People v. Love, 199 Ill. 2d 269, 278, 769 N.E. 2d 10 (2002).
The United States Supreme Court has stated that the police have the right to approach citizens and ask potentially incriminating questions.Id., citing Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991).
The subjective intent of the police officer is immaterial. The appropriate inquiry is whether the individual was “seized” for 4th Amendment purposes.

What constitutes a “Seizure” for the 4th Amendment

A person is seized for purposes of the 4th Amendment when an officer “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Luedemann, 222 Ill. 2d at 550, citing Bostick, 501 U.S. at 434, quoting Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S. Ct. 1968, 20 L. Ed. 2d 889 (1968).
Test: Whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. at 436 (1991); People v. Luedemann, 222 Ill. 2d at 550 (2006).
The test requires an objective evaluation of the police conduct. It does not depend upon the subjective perception of the person involved. People v. Luedemann, 222 Ill. 2d at 551 (2006).
A seizure does not occur simply because a police officer approaches an individual and puts questions to that person if the person is willing to listen. People v. Luedemann, 222 Ill. 2d at 551 (2006); People v. Gherna, 203 Ill. 2d 165, 178, 784 N.E. 2d 799 (2003).
The United States Supreme Court, in U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) listed four factors that may be indicative of a seizure:
The threatening presence of several officers;
The display of a weapon by an officer;
Some physical touching of the person of the citizen; and
The use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
Illinois has adopted the Mendenhall test. People v. Murray, 137 Ill. 2d 382, 390, 560 N.E. 2d 309 (1990).
In order for a person to be “seized” under the Fourth Amendment, there must be the application of physical force by the police or the submission to the assertion of authority by the citizen. California v. Hodari D, 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991)(the accused who fled when he saw the police and dropped narcotics as the police ran after him was not seized at the time he dropped the narcotics); People v. Thomas, 198 Ill. 2d 103, 759 N.E. 2d 899 (2001)
Passengers in a vehicle are “seized” for purposes of the Fourth Amendment. Passengers may contest the validity of the traffic stop. Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
However, a passenger may not necessarily contest the search of the vehicle. The passenger must have a reasonable expectation of privacy in the vehicle or the area searched. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); People v. Johnson, 237 Ill. 2d 81, 927 N.E. 2d 1179 (2010)(Passenger who was detained pursuant to a valid traffic stop, did not have a legitimate expectation of privacy in the vehicle.)

Who may contest a search under the Fourth Amendment

The Fourth Amendment only applies to those places or objects where the person has a legitimate expectation of privacy. Katz v. U.S., 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1969); Rakas v. Illinois, supra;People v. Johnson, supra.
The most common cases where the courts have found a person has no expectation of privacy involve:
Abandoned property or “drop” cases.
Garbage searches. California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988).
Passengers in a vehicle. See, Rakas and Johnson, supra.
Denial of ownership. Where the suspect denies a possessory interest in the property, the courts consider this abandoned property.
Older cases referred to the suspect’s “standing” to contest the search. This term has been abandoned and replaced by the reasonable expectation of privacy analysis.

Searches by Private Citizens

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. 2d 1048 (1921); People v. Heflin, 71 Ill. 2d 525, 376 N.E. 2d 1367 (1979).
A search conducted by a private individual will be subject to constitutional guarantees when the individual conducting the search can be regarded as acting as an agent or instrument of the State in light of the circumstances of the case. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Heflin, 71 Ill. 2d at 539.
Participation by the police, in and of itself, does not automatically invoke the application of the guarantees against unreasonable government intrusions under the Fourth Amendment. The fact that the search may have been prompted by a police inquiry is not critical. The courts look at the nature of the police involvement and the independent decisions of the individual. See, Coolidge and Heflin, supra.

INVESTIGATORY STOPS

Basis for Investigatory Stops

The underlying basis for the investigatory stop was first announced in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1969). Under Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed or is about to commit a crime.
Requirements:
The investigatory stop must be justified at its inception.
The police officer must be able to point to specific and articulable facts, which, taken together with rational inferences from these facts, reasonably warrants the intrusion.
The officer’s suspicion must be more than an inarticulate hunch, but need not rise to the level of probable cause.
The courts apply an objective standard when analyzing the officer’s conduct. Terry, 392 U.S. at 19-22.
The Terry standard has been codified in Illinois, 725 ILCS 5/107-14 (West 2006).
If, during the course of a valid investigatory stop, the officer has a reason to believe the suspect is armed or dangerous, the police officer may search the suspect for weapons. The search is often called a “protective pat-down search.”
Whether the investigatory search is valid is a separate question from whether a search for weapons is valid. People v. Flowers, 179 Ill. 2d 257, 263, 688 N.E. 2d 626 (1997).
The Terry standard for searches has been codified in Illinois, 725 ILCS 5/108-1.01.
The justification for the search under Terry is generally confined to a search for weapons. However, in Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), the United States Supreme Court extended the search to other contraband, provided the search stays within the bounds of the Terry decision. This is sometimes referred to as the “plain feel exception.”
“If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.” Dickerson, 508 U.S. at 375. If the object is contraband, the warrantless seizure is justified.
In Dickerson, the Supreme Court agreed with the Minnesota Supreme Court that the incriminating character of the object was not immediately apparent to the police officer. The police officer had to conduct a further search that was not authorized by Terry; therefore the Minnesota Supreme Court properly suppressed the evidence. Dickerson, 508 U.S. at 379.
Illinois has adopted Dickerson, People v. Mitchell, 165 Ill. 2d 211, 650 N.E. 2d 1014 (1995).
As a practical matter, the facts that would justify a search under the plain feel exception are rare.
Vehicle stops are generally analyzed under the reasonable suspicion standard. See, People v. Close, 238 Ill. 2d 497, 939 N.E. 2d 463 (2010). Vehicle stops will be discussed in more detail under Automobile Stops later.
During the course of an investigatory stop, a police officer may learn facts that provide probable cause to arrest a suspect. People v. Hopkins, 235 Ill. 2d 453, 922 N.E. 2d 1042 (2009).

Illustrative Cases

Length of detention.
Twenty minute investigative detention of a suspected drug dealer upheld. U.S. v. Sharpe, 470 U.S. 675, 106 S. Ct. 1568, 84 L. Ed. 2d 605 (1985)
Suspect was not unreasonably detained when he was brought two blocks to the crime scene for purposes of identification. People v. Bennett, 376 Ill. App. 3d 554, 876 N.E. 2d 256 (2007).
Police officer’s actions during an investigatory stop.
A police officer may ask a suspect to identify himself or provide proof of identity. Hiibel v. Sixth Judicial Court of Nevada, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004); People v. Morrison, 375 Ill. App. 3d 545, 550, 874 N.E. 2d 896 (2007), citing U.S. v. Hensley, 469 U.S. 221, 229 (1985) (“the ability to briefly stop a suspect, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes, and bringing offenders to justice.”)
The status or nature of an investigatory stop is not affected by either the drawing of a gun by the police, or by the use of handcuffs, or by placing the person in a squad car. People v. Ross, 317 Ill. App. 3d 26, 32, 739 N.E. 2d 50 (2000); People v. Bujdud, 177 Ill. App. 3d 396, 402-403, 532 N.E. 2d 370 (1988) (the fact that an officer has his gun drawn while conducting an investigatory stop does not convert that stop into an arrest).
Flight
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). A suspect’s presence in a high crime area and the suspect’s flight from the police provides reasonable suspicion for the police officers to investigate further.
People v. Thomas, 198 Ill. 2d 103, 759 N.E. 2d 899 (2001). Unprovoked flight in the face of a potential police encounter may raise a reasonable suspicion to justify the police officers pursuit and investigatory stop.
Police officer’s experience and training.
U.S. v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed 2d 621 (1981). Objective facts meaningless to the untrained can be combined with permissible deductions from such facts to form a legitimate basis to justify an investigatory stop.
People v. Houldridge, 117 Ill. App. 3d 1054, 454 N.E. 2d 373 (1983). The smell of burnt cannabis may provide a reasonable basis justifying a search of a vehicle.
People v. Jacobson, 231 Ill. App. 3d 673, 596 N.E. 2d 893 (1992). Police officer who observed two occupants in a vehicle passing small, hand-rolled cigarette back and forth provided a reasonable suspicion for an investigatory stop.
Wanted flyers. U.S. v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). Wanted flyers may provide the basis for a Terry stop.
Investigatory stop extended to vehicles. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). While conducting a legitimate Terry search of the interior of a vehicle, if the officer discovers other contraband, he may also recover these items under the Fourth Amendment.

ARREST WITHOUT A WARRANT

General Overview

An arrest executed without a warrant is valid only if supported by probable cause.
Probable cause to arrest exists when the facts known to the officer at the time of arrest are sufficient to lead a reasonable cautious person to believe that the arrestee has committed a crime.
The existence of probable cause depends upon the totality of the circumstances at the time of arrest.
Whether probable cause exists is governed by commonsense considerations and the calculation concerns the probability of criminal activity, rather than proof beyond a reasonable doubt.
Authorities cited above:
People v.