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

© 2014 John J. Hynes All Rights Reserved

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..............................................................................................................1GENERAL OVERVIEW...............................................................................................................................1

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

INVESTIGATORY STOPS............................................................................................................................5A. Basis for Investigatory Stops........................................................................................................5B. Illustrative Cases..........................................................................................................................7

ARREST WITHOUT A WARRANT...............................................................................................................8A. General Overview........................................................................................................................8B. Illinois Statutory Requirements for Arrest, 725 ILCS 5/107-1, et seq...........................................9C. Practical Considerations..............................................................................................................9D. Illustrative Cases........................................................................................................................10E. Warrantless Arrests at a Suspect’s Home..................................................................................11F. Voluntary Accompaniment........................................................................................................12

ARREST PURSUANT TO A WARRANT......................................................................................................13A. Arrest Warrants.........................................................................................................................13

SEARCH WARRANTS...............................................................................................................................14A. General Overview......................................................................................................................14B. Execution of a Search Warrant..................................................................................................15C. Detention and Search of Persons and Premises........................................................................16D. Motions to Quash the Search Warrant......................................................................................17E. Franks Motion............................................................................................................................18

EXCEPTIONS TO THE WARRANT REQUIREMENT....................................................................................18A. General Overview......................................................................................................................18B. Search Incident to Arrest and Protective Sweeps......................................................................19C. Custodial Searches and Inventory Searches of Vehicles............................................................20D. Hot Pursuit.................................................................................................................................20E. Plain View..................................................................................................................................21F. Open Fields................................................................................................................................22G. Traffic Stops...............................................................................................................................23H. Automobile Exception................................................................................................................24I. Consent......................................................................................................................................25J. Searches by School Authorities..................................................................................................27K. Miscellaneous Fourth Amendment Issues.................................................................................27

Chapter 2 Identification Procedures..........................................................................................................28GENERAL OVERVIEW.............................................................................................................................28

A. The starting point......................................................................................................................28B. Federal Constitutional Requirements........................................................................................29C. Illinois Statutory Considerations. 725 ILCS 5/107A-5................................................................30

PRE-TRIAL IDENTIFICATION PROCEDURES.............................................................................................30

A. Show-ups...................................................................................................................................30B. Photographic identifications......................................................................................................31C. Lineup procedures.....................................................................................................................32

CONTESTING THE PRE-TRIAL IDENTIFICATION PROCEDURES................................................................33A. Motion to Suppress the Identification.......................................................................................33

Chapter 3 Statements by the Accused.......................................................................................................34GENERAL OVERVIEW.............................................................................................................................34

A. Starting Point.............................................................................................................................34B. Illinois Statutory Considerations................................................................................................35C. Fourth Amendment Considerations...........................................................................................36

SIXTH AMENDMENT CONSIDERATIONS.................................................................................................37A. The Starting Point for Sixth Amendment Analysis.....................................................................37B. Waiver of the Sixth Amendment Right to Counsel....................................................................37C. Illustrative Cases........................................................................................................................38

FIFTH AMENDMENT GENERAL CONSIDERATIONS.................................................................................39A. General Overview......................................................................................................................39

FIFTH AMENDMENT MIRANDA ISSUES..................................................................................................39A. The starting point: Miranda v. Arizona......................................................................................39B. Failure to Give Miranda Warnings: Consequences....................................................................40C. What Constitutes Custodial Interrogation.................................................................................42D. Custodial Interrogation: Illustrative Cases.................................................................................43E. Knowing and Intelligent Waiver.................................................................................................44F. Knowing and Intelligent Waiver: Illustrative Cases....................................................................45G. Right to Remain Silent...............................................................................................................45H. Right to an attorney...................................................................................................................47I. Right to an Attorney: Illustrative Cases......................................................................................48

FIFTH AMENDMENT VOLUNTARINESS ISSUES.......................................................................................49A. General overview.......................................................................................................................49B. Juvenile Confessions..................................................................................................................49C. Legality and Duration of the Detention.....................................................................................50D. Physical Abuse by the Police......................................................................................................51E. Other Factors under the Totality of the Circumstances Test: Illustrative Cases........................52

Chapter 1 The Fourth Amendment

GENERAL OVERVIEW

A. The starting point: United States and Illinois Constitution

1. 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

2. 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

3. 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.

B. Exclusionary Rule1. 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).

2. 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.

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2d 441 (1963). See, People v. Henderson, 2013 IL 114040, 989 N.E. 2d 192 (good discussion of the fruit of the poisonous tree doctrine).

C. Good Faith Exception1. 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.

2. 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.

3. The Supreme Court has extended the good faith exception to other areas:a. 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).

b. 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).

c. The good faith exception in Evans was extended where police employees erred in maintaining records in a warrant database. Isolated, nonrecurring police negligence lacks the 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).

d. 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).

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D. The Three Levels of Police-Citizen Encounters1. 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).

2. The three tiers are:a. Arrests, which must be supported by probable cause;b. Investigatory stops, also known as Terry stops, which must be supported by

reasonable, articulable suspicion of criminal activity; andc. Consensual encounters that involve no coercion or detention and,

consequently, do not implicate the 4th Amendment. Id.3. 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).

4. Arrests and Investigatory Stops will be discussed in more detail later on in the materials.

E. Consensual Encounters1. 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).

2. 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).

3. The subjective intent of the police officer is immaterial. The appropriate inquiry is whether the individual was “seized” for 4th Amendment purposes.

F. What constitutes a “Seizure” for the 4th Amendment1. 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).

2. 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).

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a. 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).

b. 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).

c. In re Rafael E. , 2014 IL App (1st) 133027, 14 N.E. 3d 489. Court held defendant seized for purposes of the 4th Amendment. Good discussion on the difference between a consensual encounter and a “seizure.”

3. 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:

a. The threatening presence of several officers;b. The display of a weapon by an officer; c. Some physical touching of the person of the citizen; andd. The use of language or tone of voice indicating that compliance with the

officer’s request might be compelled.4. Illinois has adopted the Mendenhall test. People v. Murray, 137 Ill. 2d 382, 390, 560

N.E. 2d 309 (1990).5. 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)

6. 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).

a. 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.)

G. Who may contest a search under the Fourth Amendment

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1. 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.

2. The most common cases where the courts have found a person has no expectation of privacy involve:

a. Abandoned property or “drop” cases.b. Garbage searches. California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100

L. Ed. 2d 30 (1988).c. Passengers in a vehicle. See, Rakas and Johnson, supra.d. Denial of ownership. Where the suspect denies a possessory interest in the

property, the courts consider this abandoned property.3. 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.

H. Searches by Private Citizens1. 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).

2. 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.

3. 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

A. Basis for Investigatory Stops1. 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.

2. Requirements:a. The investigatory stop must be justified at its inception.

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b. 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.

c. The officer’s suspicion must be more than an inarticulate hunch, but need not rise to the level of probable cause.

d. The courts apply an objective standard when analyzing the officer’s conduct. Terry, 392 U.S. at 19-22.

3. The Terry standard has been codified in Illinois, 725 ILCS 5/107-14 (West 2006).4. 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.”

a. 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).

b. The Terry standard for searches has been codified in Illinois, 725 ILCS 5/108-1.01.

5. 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.”

a. “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.

b. 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.

c. Illinois has adopted Dickerson, People v. Mitchell, 165 Ill. 2d 211, 650 N.E. 2d 1014 (1995).

d. As a practical matter, the facts that would justify a search under the plain feel exception are rare.

6. A Terry stop may be initiated based upon information provided from a member of the public or from an informant. Ordinarily information from a concerned citizen is considered more credible than information from a paid informant or a person who

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provided the information for personal gain. A court should consider the informant’s veracity, reliability, and basis of knowledge when analyzing a tip. People v. Sanders, 2013 IL App (1st) 102696 (internal citations omitted)(good discussion regarding the quality and quantity of information required to justify a Terry stop based on information from a citizen and information from an informant). See also, Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000); People v. Rhinehart, 2011 IL App (1st) 100683); People v. Henderson, 2013 IL 114040, 989 N.E. 2d 192.

a. Navarette v. California , 134 S. Ct. 1683, 188 L.Ed. 2d 680 (2014). Police officers were justified in stopping defendant’s vehicle based on the detailed information provided by a 911 caller.

7. 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.

8. 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).

B. Illustrative Cases1. Length of detention.

a. 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)

b. 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).

2. Police officer’s actions during an investigatory stop.a. 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.”)

b. 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).

3. Flight

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a. 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.

b. 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.

c. People v. Henderson , 2013 IL 114040, 989 N.E. 2d 192. Under the fruit of the poisonous tree doctrine, defendant’s flight broke the causal connection from the illegal stop.

4. Police officer’s experience and training. a. 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.

b. 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.

c. 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.

5. 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. However, in order to determine if the police had a reasonable suspicion stop the suspect, there should be testimony regarding the information that formed the basis for the flyer or investigative alert. People v. Hyland, 2012 IL App (1st) 110966, 981 N.E. 2d 414, citing People v. Lawson, 298 Ill. App. 3d 997, 700 N.E. 2d 125 (1998) and Whitley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971).

6. 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

A. General Overview1. An arrest executed without a warrant is valid only if supported by probable cause.

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2. 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.

3. The existence of probable cause depends upon the totality of the circumstances at the time of arrest.

4. 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.

5. Authorities cited above:a. People v. Hopkins , 235 Ill. 2d 453, 472, 922 N.E. 2d 1042 (2009);b. People v. Jackson , 232 Ill. 2d 246, 274-75, 903 N.E. 2d 388 (2009);c. People v. Montgomery , 112 Ill. 2d 517, 525, 494 N.E. 2d 475 (1986);d. People v. Wear , 229 Ill. 2d 545, 563-64, 893 N.E. 2d 631 (2008);e. People v. Love , 199 Ill. 2d 269, 279, 769 N.E. 2d 10 (2002).

6. Once a police officer has lawfully arrested a suspect, he may search the suspect and the area immediately surrounding the suspect. More details on this subject will be discussed later in the article under the topic Search Incident to Arrest.

B. Illinois Statutory Requirements for Arrest, 725 ILCS 5/107-1, et seq.1. Arrest by a Peace Officer, 725 ILCS 5/107-2. A peace officer may arrest a person

when:a. He has a warrant commanding that such person be arrested; orb. He has reasonable grounds to believe that a warrant for the person’s arrest

has been issued in this State or in another jurisdiction; orc. He has reasonable grounds to believe that person is committing or has

committed an offense.2. Method of Arrest, 725 ILCS 5/107-5.

a. An arrest is made by actual restraint of the person or by his submission to custody.

b. An arrest may be made on any day and at any time of the day or night.c. An arrest may be made anywhere within the jurisdiction of this State.d. All necessary and reasonable force may be used to effect an entry into any

building or property or part thereof to make an authorized arrest.3. Private Citizens may make an arrest or may assist the police in making an arrest.

See, Arrest by private person, 725 ILCS 5/107-3; Assisting a peace officer, 725 ILCS 5/107-8.

4. “Reasonable grounds” and “probable cause” are synonymous for purposes of arrest. People v. Lawson, 36 Ill. App. 3d 767, 345 N.E. 2d 41 (1976); People v. Denwiddie, 50 Ill. App. 3d 184, 365 N.E. 2d 978 (1977).

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C. Practical Considerations1. In evaluating whether or not a police officer had probable cause to arrest, the courts

look at the facts known to the police officer at the time of the arrest. This factual analysis includes:

a. The source of the information (sometimes referred to as the Basis of Knowledge);

b. The reliability of the information;c. Whether the officer was able to corroborate the information;d. Whether additional information was developed during the detention of the

suspect which would lead the officer to believe a crime was committed or was about to be committed.

2. All these factors need not be present to establish probable cause to arrest. One or more of these factors alone may be sufficient.

3. Source of Information. A police officer may obtain information from a variety of sources. Citizens, eyewitnesses, victims of a crime, informants (both reliable and unreliable), other officers, along with the officer’s own observations may be used in developing probable cause to arrest.

4. Reliability and Corroboration. Depending on the source of the information, a police officer may need to show that the information is reliable. For example, information obtained from an informant must be substantiated either by the informant’s prior reliability or through the additional information obtained by the officer during the investigation that corroborates the information.

D. Illustrative Cases1. Informants. Reasonable grounds to arrest may be furnished by an informant whose

reliability has been previously established or who is independently corroborated. People v. Wilson, 45 Ill. 2d 581, 262 N.E. 2d 441 (1970); People v. Miller, 212 Ill. App. 3d 195, 570 N.E. 2d 1202 (1991).

2. Citizens. The requirement of reliability or independent corroboration which must be shown when information is obtained from an informant does not apply to information supplied by citizens (sometimes referred to as citizen informants). People v. Kidd, 180 Ill. App. 3d 1065, 536 N.E. 2d 816 (1989) Where information is obtained from a witness who has never given information to the police in the past, it is presumed this witness is a citizen informant. See, Kidd, supra. People v. Earley, 212 Ill. App. 3d 457, 570 N.E. 2d 1235, cert denied, 141 Ill. 2d 549, 580 N.E. 2d 123 (1991).

3. Co-offenders. Information obtained by a co-offender that implicates himself and the defendant may provide a basis for probable cause to arrest. People v. Denham, 41

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Ill. 2d 1, 241 N.E. 2d 415 (1968); People v. Miller, 212 Ill. App. 3d 195, 570 N.E. 2d 1202 (1991).

4. Knowledge of Police Officer. Where officers are working together on an investigation, the knowledge of each police officer is considered the knowledge of all. This is true even if the knowledge has not been communicated to the arresting officer. People v. Earley, 212 Ill. App. 3d 457, 570 N.E. 2d 1235, cert denied, 141 Ill. 2d 549, 580 N.E. 2d 123 (1991).

5. Eyewitnesses. Eyewitnesses to a crime who assist the police are considered inherently reliable. People v. Earnest, 224 Ill. App. 3d 90, 586 N.E. 2d 449 (1991), appeal denied, 144 Ill. 2d 637, 591 N.E. 2d 25 (1992).

6. Radio Broadcast. Information obtained over the radio may be sufficient to establish probable cause to arrest or reasonable suspicion to detain a suspect. People v. Wilson, 141 Ill. App. 3d 156, 490 N.E. 2d 701 (1986); People v. Coleman, 63 Ill. App. 3d 814, 380 N.E. 2d 829 (1978).

E. Warrantless Arrests at a Suspect’s Home1. As a general rule, the Fourth Amendment prohibits police officers from making a

warrantless arrest in a suspect’s home absent consent or exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L.Ed. 2d 639 (1980).

2. “It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton, 445 U.S. at 586. “To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present.” Payton, 445 U.S. at 589.

3. Exigent Circumstances. Factors the courts have looked at to determine whether or not exigent circumstances are present for a warrantless arrest at a home:

a. Whether the crime was recently committed;b. Whether there was any deliberate or unjustified delay on the part of law

enforcement during which a warrant may have been obtained;c. Whether the crime was grave, particularly one of violence;d. Whether there was a reasonable belief the suspect was armed;e. Whether the police were acting on a clear showing of probable cause;f. Whether there was a likelihood that the suspect would avoid arrest if not

swiftly apprehended;g. Whether there was a strong reason to believe the suspect was in the

premises; and

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h. Whether the entry was made peaceably. People v. Shanklin, 367 Ill. App. 3d 569, 855 N.E. 2d 184 (2006), citing People v. McNeal, 175 Ill. 2d 335, 345, 677 N.E. 2d 841 (1997).

4. Failure to meet one or more of these factors is not fatal to the determination of whether there were exigent circumstances for the warrantless arrest. The courts look at the totality of the circumstances and the reasonableness of the officers’ conduct. McNeal, 175 Ill. 2d at 345.

5. Exigent circumstances rule justifies the warrantless search of a home when the conduct of the police preceding the exigency is reasonable. Where the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and allowed. Kentucky v. King, U.S. , 131 S. Ct. 1849, 1858, 179 L. Ed. 2d 865 (2011).

6. Probable Cause and Consent. 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).

7. Overnight Guests and Party Guests. A person’s status as an overnight guest is sufficient to show a reasonable expectation of privacy in the home for purposes of the Fourth Amendment. Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990). However, a guest at a party does not have a reasonable expectation of privacy in the search of home where the party is held. City of Chicago v. Torres, 214 Ill. 2d 234, 829 N.E. 2d 624 (2005).

8. Where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the suspect outside his home, even though the statement was made after a warrantless and nonconsensual entry into the suspect’s home. New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990); People v. Segoviano, 189 Ill. 2d 228, 725 N.E. 2d 1275 (2000).

F. Voluntary Accompaniment1. Often times a person will agree to accompany the police to assist in the investigation

or they may agree to come to the station on their own to speak to the police. At some point the police may believe the person is involved in the crime. If the person is subsequently charged with a crime, the court may need to determine at what point in the police investigation the defendant was under arrest and not free to leave.

2. An arrest occurs when the circumstances are such that a reasonable person, innocent of any crime, would conclude that he was not free to leave. People v. Lopez, 229 Ill. 2d 322, 346, 892 N.E. 2d 1047 (2008). If the person was a juvenile, the courts modify the reasonable person standard to consider whether a reasonable

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juvenile would have thought that his freedom of movement was restricted. Lopez, supra. Defendant’s initial voluntary presence at the police station does not negate the possibility that subsequent police conduct was unlawful. Lopez, 229 Ill. 2d at 352.

3. Where a defendant voluntarily accompanies an officer to the police station, there is no formal declaration of arrest, and the defendant is not searched, handcuffed, fingerprinted, or photographed, the defendant is neither seized nor under arrest. People v. Anderson, 395 Ill. App. 3d 241, 249, 917 N.E. 2d 18 (2009), citing People v. Sturgess, 364 Ill. App. 3d 107, 113, 845 N.E. 2d 741 (2006). As the length of a person’s presence at a police station grows, the voluntariness with which the person first arrives may tend to dissipate. Anderson, 395 Ill. App. 3d at 250. However, it is the defendant’s burden to demonstrate that his continued presence at the police station, including an overnight stay, constituted an illegal seizure. Anderson, 395 Ill. App. 3d at 251.

ARREST PURSUANT TO A WARRANT

A. Arrest Warrants1. An arrest warrant is issued based upon a sworn complaint presented before a judge.

There are two documents that must be presented to the judge—a complaint and an arrest warrant. The requirements for the complaint and arrest warrant are set forth in 725 ILCS 5/107-9.

2. Complaint. The complaint for an arrest warrant must be in writing and it must:a. State the name of the accused if known, and if not known the accused may

be designated by any name or description by which he can be identified with reasonable certainty;

b. State the offense to which the accused is charged;c. State the time and place of the offense as definitely as can be done by the

complainant; and d. Be subscribed and sworn to by the complainant. 725 ILCS 5/107-9(b).

3. A warrant shall be issued by the court for the arrest of the person complained against if it appears from the contents of the complaint and the examination of the complainant or other witnesses, if any that the person against whom the complaint was made has committed an offense. 725 ILCS 5/107-9 (c) (Note: Unlike a search warrant, the complaint for arrest warrant need not set forth facts sufficient to establish probable cause.)

4. Warrant. The warrant for arrest shall;a. Be in writing;

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

c. Set forth the nature of the offense;d. State the date when issued and the municipality or county where issued;e. Be signed by the judge;f. Command the person against whom the complaint was made be arrested

and brought before the court issuing the warrant; g. Specify the amount of bail; and h. Specify any geographical limits. 725 ILCS 5/107-9(d).

5. Arrest warrants may be transmitted by facsimile. 725 ILCS 5/107-9(f).6. Knock and Announce Rule. When serving an arrest warrant at a home or residence

the police officers are generally required to knock on the door and announce their purpose and authority. They must also give the occupants a reasonable opportunity to respond before forcing their way into the dwelling. However, this is not a constitutional requirement and the case law in this area has evolved over the last twenty years. For a more detailed analysis, see the section on Search Warrants below.

7. Defective Warrants. A warrant of arrest shall not be quashed or abated nor shall any person in custody for an offense be discharged from such custody because of technical irregularities not affecting the substantial rights of the accused. 725 ILCS 5/107-10.

8. Good Faith Exception. 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. Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). See, also, U.S. v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

SEARCH WARRANTS

A. General Overview1. The starting point for any analysis of the requirements for issuance of a search

warrant are contained in the Fourth Amendment of the United States Constitution (“no warrant 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”) and the Illinois Constitution (“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.”).

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2. In Illinois, the Constitutional requirements and the subsequent case law interpreting these requirements has been codified. 725 ILCS 5/108-1, et.seq.

3. Grounds for a Search Warrant. Upon written complaint of any person under oath or affirmation which states facts sufficient to show probable cause and which particularly describes the place or person, or both, to be searched and the things to be seized, any judge may issue a search warrant for the seizure of any evidence of a crime. 725 ILCS 5/108-3(a).

4. Issuance of Search Warrant. All warrants upon written complaint shall state the time and date of issuance and be the warrants of the judge issuing the warrant. The warrant may be issued by facsimile. 725 ILCS 5/108-4(a). When the offense with which a search warrant is sought constitutes terrorism or any related offense, a warrant may be issued based on oral testimony. 725 ILCS 5/108-4(b).

5. Facts Sufficient to Show Probable Cause. The “totality of the circumstances” test is the proper standard for determining probable cause for issuance of a search warrant based on information from an informant. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed 2d 527 (1983). The judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238.

6. No Warrant Quashed for Technicality. No warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the substantial rights of the accused. 725 ILCS 5/108-14.

7. Good Faith Exception. 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. Suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit. U.S. v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). See, also, Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009).

B. Execution of a Search Warrant1. Persons Authorized to Execute Search Warrants. The warrant shall be issued in

duplicate and shall be directed for execution to all peace officers of the State. However, the judge may direct the warrant to be executed by any person named specially therein. 725 ILCS 5/108-5.

2. Execution of Search Warrants. The warrant shall be executed within 96 hours from the time of issuance. If the warrant is executed the duplicate copy shall be left with any person from whom any instruments, articles, or things are seized or if no person is available the copy shall be left at the place from which the instruments, articles or

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things were seized. Any warrant not executed within such time shall be void and shall be returned to the court of the judge issuing the same as “not executed.”

3. When Warrant may Be Executed. The warrant may be executed at any time of any day or night. 725 ILCS 5/108-13.

4. Knock and Announce Rule. As previously stated, when executing a warrant at a home or residence the police officers are generally required to knock on the door and announce their purpose and authority. They must also give the occupants a reasonable opportunity to respond before forcing their way into the dwelling. However, this is not a constitutional requirement and the case law in this area has evolved over the last twenty years.

a. Wilson v. Arkansas , 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995). The United States Supreme Court held the Fourth Amendment requires police officers to knock on the door and announce their identity before attempting to forcibly enter a dwelling. Police officers must have exigent circumstances such as the threat of violence or reasonable belief evidence will be destroyed.

b. In light of Wilson, many states adopted statutes authorizing “No Knock Warrants.” See 725 ILCS 5/108-8.

c. The United States Supreme Court invalidated many of these statutes in Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997). The Court held the Fourth Amendment does not permit exceptions to the knock and announce requirements for felony drug investigations.

d. The Illinois Supreme Court adopted the reasoning in Wilson and Richards and declared 725 ILCS 5/108-8 unconstitutional. People v. Krueger, 175 Ill. 2d 60, 675 N.E. 2d 604 (1997); People v. Wright, 183 Ill. 2d 16, 697 N.E. 2d 693 (1998). (Note: Section 108-8 still appears in the Illinois Compiled Statutes.)

e. In Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), the United States Supreme Court held that a violation of the Fourth Amendment “knock and announce” rule does not require suppression of evidence found in a search of the premises.

f. The Second District Appellate Court adopted the reasoning in Hudson in People v. Glorioso, 398 Ill. App. 3d 975, 924 N.E. 2d 1153 (2010). To date, the Illinois Supreme Court has not addressed the issue.

C. Detention and Search of Persons and Premises1. Command of Search Warrant. The warrant shall command the person directed to

execute the same to search the place or person particularly described in the warrant and to seize the instruments, articles or tings particularly described in the warrant. 725 ILCS 5/108-7.

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2. Detention and Search of Persons on Premise. In the execution of the warrant the person executing the same may reasonably detain to search any person in the place at the time:

a. To protect himself from attack, or b. To prevent the disposal or concealment of any instruments, articles or things

particularly described in the warrant. 725 ILCS 5/108-9.3. The search authorized by the warrant is generally limited to the persons named in

the warrant and the place described in the warrant. The police are also limited to the items described in the warrant. However, while executing the warrant, if the police see evidence of another crime, other exceptions to the warrant requirement may permit the officer to seize that evidence and charge the offender with that crime. For example, while executing a search warrant for narcotics the officers may confiscate a sawed-off shotgun found in plain view on a chair in the living room.

4. Section 108-9 does not allow the police to search everyone on the premises at the time the search warrant is executed. Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (a warrant to search a place cannot normally be construed to authorize a search of each individual in that place). Under the statute the officer is only justified in searching the individual if he reasonably believes the person may be armed (Terry-type situation) or if he reasonably believes the person is disposing or concealing evidence. This belief must be based on the officer’s observation or other articulable facts specific to that individual.

5. Police officers may detain a person leaving the premises named in the warrant and bring them back to the location for a limited time in order to determine their connection to the premises. Michigan v. Sumner, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). The rule under Sumner is limited to the immediate vicinity of the premises to be searched and does not apply where the defendant is detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question. Bailey v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013). (Defendant was seen exiting the premises and driving away. Police officers followed the vehicle and stopped him a mile away.)

6. Police officers who have probable cause to believe a home has evidence of a crime, may reasonably restrict defendant’s access to the home (two hours) in order to prevent destruction of evidence while they obtain a search warrant. Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001).

D. Motions to Quash the Search Warrant1. The defendant may contest the seizure of property pursuant to a warrant by filing a

Motion to Quash the Search Warrant.2. The grounds set forth in these motions fall into several categories:

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a. The warrant lacked specificity in that it did not particularly describe the place or person to be searched;

b. The police searched an area not described in the warrant;c. The police searched a person not described in the warrant;d. The warrant was overbroad or lacked probable cause; ore. The information contained in the warrant was old or “stale” and there was

no reason to believe the contraband would still be on the premises.3. The courts can generally look at the “four corners of the warrant” to determine

whether any of the allegations listed above are accurate. In most instances there is no need for an evidentiary hearing.

E. Franks Motion1. If the defendant can make a prima facie showing that the officer included false

information in the warrant knowing such information was false or with reckless disregard for the truth or falsity of the information, then he is entitled to a hearing to determine the truth or falsity of the information. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

2. A Franks Motion involves a two-part analysis:a. In his written motion, the defendant must make a prima facie showing that

the complaint contains false information and the officer knew the information was false or included the information with reckless disregard to the truth. If the court determines the defendant has met his burden at this stage, then,

b. The court will conduct a hearing to determine whether the warrant contains false information and the officer knowingly or recklessly included the false information.

3. Prima facie Showing. Defendant’s written motion must contain more than mere denials. The motion should contain affidavits and documents supporting his claim.

4. Hearing. This inquiry allows defendant to go beyond the “four corners of the warrant.” The hearing may require the State to document the officer’s information and it may require the officer to identify and produce any confidential informant who supplied the information contained in the complaint.

EXCEPTIONS TO THE WARRANT REQUIREMENT

A. General Overview1. As a general rule searches and seizures without a warrant are presumptively

unreasonable. A warrantless search must fall into one of the narrowly defined

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exceptions to the warrant requirement. People v. Allen, 376 Ill. App. 3d 511, 516, 875 N.E. 2d 1221 (2007).

2. The exceptions listed below are the most common. The facts of a particular case may fall into more than one of the exceptions. The chronology of events may also involve more than one exception. Consequently, an attorney arguing the reasonableness of the search or seizure in these cases should argue these theories in the alternative.

B. Search Incident to Arrest and Protective Sweeps1. If a police officer has probable cause to arrest a suspect, the police may search the

suspect and the area within his immediate control for the purpose of protecting the officer or for the purpose of preventing the concealment or destruction of evidence. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). The search of a defendant’s person incident to a lawful arrest required “no additional justification. It is the fact of the lawful arrest which establishes the authority to search.” Allen, 376 Ill. App. 3d at 519, citing United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). In Illinois this exception has been codified.

a. Riley v. California , 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). A search warrant is required to search the contents of a cellphone recovered pursuant to a search incident to arrest.

2. Search Without Warrant. 725 ILCS 5/108-1. When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of:

a. Protecting the officer from attack; orb. Preventing the person from escaping; orc. Discovering the fruits of the crime; ord. Discovering any instruments, articles, or things which may have been used in

the commission of, or which may constitute evidence of, an offense.3. A search incident to arrest must be made contemporaneously with the arrest. This

means the search must be immediately preceding or immediately succeeding the actual physical act of arrest.

4. Search incident to arrest and vehicles. When a police officer has made a lawful arrest of an occupant of an automobile, he may contemporaneously search the passenger compartment of the vehicle. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2865, 69 L. Ed. 2d 768 (1981).

a. In Arizona v. Gant , 556 U.S. 332, 129 S. Ct 1710, 173 L. Ed. 2d 485 (2009), the Supreme Court narrowed the reading of Belton. In Gant, the Court held that the search of the passenger compartment incident to the defendants’ arrest

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was not justified because the arrestees were already handcuffed and secured in separate patrol cars.

b. People v. Bridgewater , 235 Ill. 2d 85, 918 N.E. 2d 553 (2009). The Illinois Supreme Court adopted the reasoning in Gant. The Court indicated 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. Bridgewater, 235 Ill. 2d at 95.

5. Protective Sweeps. When police are making an arrest at a home, they may make a quick and limited warrantless search of the premises for the purpose of protecting the officer and others from attack. The officer must have a reasonable belief, based on specific and articulable facts, that the area swept harbored an individual that could pose a danger to the officer or others. Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990).

C. Custodial Searches and Inventory Searches of Vehicles1. Custodial Searches. The police may reasonably search and seize, without a 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).

2. Inventory Searches of Vehicles. Evidence found during a search of a vehicle pursuant to a reasonable police inventory procedure is valid even absent probable cause. South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976);

3. As long as the police officer acts in good faith, the inventory search of a vehicle is not unreasonable even though the inventory procedure gives the police officer the discretion of either impounding the vehicle or parking and locking the vehicle on the street. Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987).

4. As long as the police are acting pursuant to standard police procedure, there is no requirement that the 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. People v. Gipson, 203 Ill. 2d 298, 786 N. E. 2d 540 (2003).

5. Justification for Inventory Searches. Inventory procedures serve to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Bertine, 479 U.S. at 372.

6. Inventory Searches and Closed Containers. Police officers may open closed containers found during an inventory search if the police procedures allow for such searches. Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990)( The

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Supreme Court held that since police did not have a policy governing the opening of closed containers, police officers in this case were not allowed to open the closed container).

D. Hot Pursuit1. Police officers 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 reasonably necessary to prevent the suspect from resisting or fleeing the police. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967).

2. When a police officer has probable cause and attempts to make a warrantless arrest in a public place they may pursue the suspect into a private dwelling. After following the suspect into a dwelling the police may seize contraband, weapons, and other evidence of a crime that are in plain view. Hayden, supra. ; United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976); People v. Wear, 229 Ill. 2d 545, 893 N.E. 2d 631 (2008).

E. Plain View1. The Supreme Court set forth the plain view doctrine in Coolidge v. New Hampshire,

403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). A warrantless seizure by the police of items found in plain view during a lawful search may be reasonable under the Fourth Amendment if the following requirements are met:

a. The officers are lawfully in a position to observe the items;b. The discovery of the items is inadvertent; andc. It is immediately apparent to the officers that the items are evidence of a

crime, contraband, or otherwise subject to seizure.2. In Horton v. California, 496 U.S. 128, 110 S. Ct 2301, 110 L. Ed. 2d 112 (1990), the

Court eliminated the second requirement that the discovery be inadvertent.3. Lawful Vantage Point. The officer must have a legal justification for being at the

place where the observations are made. These situations may involve other exceptions to the warrant requirement (hot pursuit along with plain view, see Hayden, supra) or the observations are made during the execution of a warrant.

4. Immediately Apparent. The test is whether the facts available to the officer would warrant a man of reasonable caution to believe the items may be contraband or evidence of a crime. The court may take into account the officer’s experience and training when making this determination. Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 592 (1993)(after a routine traffic stop the officer observed opaque balloons tied in small knots that he believed, based on prior experience, contained narcotics). See, also People v. Jones, 215 Ill. 2d 261, 830 N.E. 2d 541 (2005)(after a traffic stop, officer observes a small wooden “one hitter” box that, based on prior experience, is commonly used to carry marijuana).

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a. The use of a flashlight or binoculars to make the observation does not defeat the plain view exception. People v. Hampton, 307 Ill. App. 3d 464, 718 N.E. 2d 591, appeal denied 186 Ill. 2d 577 (1999).

b. However use of thermal imaging binoculars or cameras that allow the officer to see inside the house violates the Fourth Amendment. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

F. Open Fields1. A person has no reasonable expectation of privacy as to items observed in open

fields. A person may not legitimately demand privacy for activities conducted out-of-doors. Consequently, the Fourth Amendment does not protect the open fields. Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1742, 80 L. Ed. 2d 214 (1984).

2. The presence or absence of “no trespassing” signs is relevant to the inquiry, but the presence of a “No Trespassing sign,” does not necessarily defeat the open fields exception. See, Oliver, supra.

3. The courts have recognized that the area immediately surrounding the home, known as the curtilage, is protected by the Fourth Amendment. When determining the extent of the curtilage, the courts look at a number of factors:

a. The proximity to the home;b. Whether the area is enclosed;c. The nature of the use to which the area is put;d. The steps taken by the homeowner to protect the area from observation by

people passing the area. People v. Pittman, 211 Ill. 2d 502, 813 N.E. 2d 93 (2004).

4. Illustrative casesa. Florida v. Jardines , 133 S.Ct. 1409, 185 L. Ed. 2d 495 (2013). Use of a drug

sniffing dog on defendant’s porch in order to investigate the contents of the house was an improper “search” under the 4th Amendment. The court held that the social norm of allowing visitors to enter on the property to knock on the door is not an invitation to conduct a search. The court also provides a good discussion of what constitutes the “curtilage” for purposes of the 4th Amendment.

b. People v. Becktel , 137 Ill. App. 3d 811, 485 N.E. 2d 474 (1985). A garden containing a marijuana patch which was separated from the house by a driveway and a barn was not part of the curtilage;

c. California v. Ciraola , 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed. 2d (1986). The warrantless, naked-eye observation of a fenced-in backyard within the curtilage of the home by agents in an airplane flying at 1000 feet did not violate the Fourth Amendment.

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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 greenhouse where marijuana was growing did not violate the Fourth Amendment.

G. Traffic Stops1. The detention by the police of individuals during a traffic stop constitutes a seizure

of the persons within the meaning of the Fourth Amendment. Berkemer v. McCarty, 468 U.S. 420, 436-437, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); People v. Cosby, 231 Ill. 2d 262, 273, 898 N.E. 2d 603 (2008). In a routine traffic stop the passengers are also seized within the meaning of the Fourth Amendment and they 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).

2. The United States Supreme Court has observed that the usual traffic stop is more analogous to a Terry stop than a formal arrest. Berkemer, 468 U.S. at 439; Cosby, 231 Ill. 2d at 274. In a footnote the Court in Berkemer noted, “We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.” Berkemer, 468 U.S. at 439 n. 29; Cosby, 231 Ill. 2d at 274. Nonetheless the Illinois Supreme Court and many other courts have analyzed traffic stops under Terry principles regardless of whether the initial stop was supported by probable cause or reasonable suspicion. Cosby, 231 Ill. 2d at 274.

3. Once a vehicle is lawfully detained for a traffic violation, the police officers may order the driver and any passengers out of the vehicle without violating the Fourth Amendment. Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 786, 172 L. Ed. 2d 694 (2009), citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) and Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997). The police officer may pat down both the driver and the passengers if he has a reasonable suspicion that they may be armed and dangerous. Johnson, 129 S. Ct. at 787.

4. Pretextual Stops. If the police officers have probable cause to believe a traffic law was violated, the ulterior motives of the officer are immaterial. The constitutional reasonableness of traffic stops does not depend on the actual motivations of the officers involved. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).

5. Illustrative Cases

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a. Dog Sniff Cases. Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). 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 Supreme Court adopts, People v. Caballes, 221 Ill. 2d 282, 851 N.E. 2d 26 (2006). People v. Bartelt, 241 Ill. 2d 217, (48 N.E. 2d 52 (2011). (It is permissible for a police officer conducting a dog sniff for narcotics to require the driver to cooperate by closing the truck’s windows and doors while running the blower on high.) Florida v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (2013). The training and testing records of a drug-sniffing dog supported the trial court’s findings of probable cause.

b. People v. Harris , 228 Ill. 2d 222, 886 N.E. 2d 947 (2008). When a passenger In a car is lawfully seized, the police 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. During a lawful seizure the police may ask questions unrelated to the original detention and are not required to form an independent reasonable suspicion of criminal activity before doing so. Harris, 228 Ill. 2d at 242-243. The Court follows the reasoning in Caballes and partially overrules its prior decision in People v. Gonzalez, 204 Ill. 2d 220 (2003).

c. People v. Bailey , 232 Ill. 2d 285, 903 N.E. 2d 409 (2009). Following a valid 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.

d. People v. Cosby , 231 Ill. 2d 262, 898 N.E. 2d 603 (2008). A police officer’s request to search defendant’s vehicle after a traffic stop had ended did not constitute a second seizure. Whether or not there was a new seizure is analyzed under the factors set forth in United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). See, also People v. Oliver, 236 Ill. 2d 448, 925 N.E. 2d 1107 (2010)(defendant not seized even though 10-15 minutes elapsed from the time the traffic stop ended and the time the car was searched); People v. Roa, 398 Ill. App. 2d 158, 923 N.E. 2d 401 (2010).

e. People v. Hackett , 2012 IL 111781, P.28 (2012). Traffic Stop for Improper Lane Usage, 625 ILCS 5/11-709(a). A traffic stop may be justified on something less than probable cause. A police officer can effect a lawful Terry stop without first considering whether the circumstances he or she observed would satisfy each element of a particular offense. Where a police officer

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observes multiple lane deviations, for no obvious reason, an investigatory stop is proper.

H. Automobile Exception1. A warrantless search of an automobile stopped by the police who had probable

cause to believe the auto contained contraband was within the meaning of the Fourth Amendment. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 2d 643 (1925). The courts have recognized the difference between vehicles and a home or other property. 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 may conceal the object of the search. United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982).

3. If there is probable cause to search the vehicle, there is no requirement that the 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, 466 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) (upheld search conducted three days after seizure).

4. The automobile exception has been extended to a fully mobile home located in a public place. California v. Carney, 471 U.S. 386, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985). However you may have a different result if the mobile home were anchored in a trailer court.

5. Installation of GPS Devices on Vehicles. The government’s installation of a GPS device on a vehicle and its use of that device to monitor the vehicle’s movements constitute a search under the Fourth Amendment and a warrant is required before such installation. United States v. Jones, U.S. , 132 S. Ct. 945, 181 L.Ed. 2d 911 (2012).

I. Consent1. A search conducted pursuant to consent is a recognized exception to both the

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

2. Voluntariness. 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

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be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent. Schneckloth, supra.

a. The burden of proof is on the state to show the 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).

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

3. Acquiescence to a claim of lawful authority. Voluntary consent was not found where the accused consented after the officer falsely represented that he had a warrant. People v. Lawson, 119 Ill. App. 3d 42, 456 N.E. 2d 170 (1983). Defendant’s consent was involuntary where the defendant must choose between consenting and being arrested. People v. Smith, 124 Ill. App. 3d 914, 464 N.E. 2d 1206 (1984).

4. Consent to Search by a Third Party. 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. United States v Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).

5. 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. at 172.

6. Illustrative Casesa. Consent to search by a third party whom the police, at the time of entry,

reasonably believe possesses the common authority over the premise, but who in fact does not have actual authority, is valid under the Fourth Amendment. Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990).

b. Generally a landlord may not validly consent to a search of a leased premise. Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961).

c. Consent given by one co-occupant is not valid in the face of the refusal by another physically present occupant. The warrantless entry and search is unreasonable and invalid as to the physically present occupant. Georgia v Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed.2d (2006). Fernandez v. California, 134 S. Ct., 188 L. Ed. 2d 25 (2014). Randolph does not extend to situations where a co-occupant gives consent well after defendant has been

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removed from the premises. Randolph requires the objecting occupant be physically present.

d. 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. People v. Henderson, 142 Ill. 2d 258, 568 N.E. 2d 1234 (1991).

J. Searches by School Authorities1. 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. 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. New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985). Reasonable grounds standard is synonymous with the reasonable suspicion standard in Terry.

2. In Illinois the reasonable suspicion standard has been applied to full-time police officers who work as the school liaison. People v. Dilworth, 169 Ill. 2d 195, 661 N.E. 2d 310 (1996).

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

4. In a recent decision, the United States Supreme Court ruled that the facts available to the school officials did not justify the strip search of a student. The strip search violated the student’s Fourth Amendment rights. Safford v. Redding, 557 U.S. 364, 129 S. Ct. 2633, 174 L. Ed. 2d 354 (2009).

K. Miscellaneous Fourth Amendment Issues1. Public Business. The officer’s entry into a bookstore and later examination of

material 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. Maryland v. Macon, 472 U.S. 463, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985)

2. Community Caretaking or Safety Exception. Courts use the term community caretaking to uphold searches or seizures as reasonable under the Fourth Amendment when police are performing some function other than investigating the

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violation of a criminal statute. People v. McDonough, 239 Ill. 2d 260, 269, 940 N.E. 2d 1100 (2010). For example, a 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. Bringham City v Stewart, 547 U.S. 398,126 S. Ct. 1943, 164 L. Ed 2d 650 (2006).

3. Pen Registers. 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. Smith v Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 110 (1979).

4. Parolees. The warrantless and suspicion less search of a parolee was upheld where the defendant signs a consent-to-search of the person, property, or residence as part of his MSR. People v. Wilson, 228 Ill. 2d 35, 885 N.E. 2d 1033 (2008).

5. Inevitable Discovery. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means then the deterrence rationale has so little basis that the evidence should be received. Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984).

Chapter 2 Identification Procedures

GENERAL OVERVIEW

A. The starting point1. When investigating a case, police officers use several methods of identification in

order to identify the offender. The identification procedures fall into three categories:

a. Show-up. This procedure involves a one-on-one confrontation between the eye witness and the suspect. During these confrontations, the police will detain a suspect in order to determine if the eyewitness can identify the suspect.

b. Photographic identification. The eyewitness is shown a series of photos in order to identify the offender.

c. Line-up. A suspect is placed in a physical line-up with several other individuals. The eyewitness is asked if he or she can identify the offender.

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2. These out-of-court identification procedures must comply with federal constitutional requirements under the Fifth and Sixth Amendments.

3. In Illinois, there are additional statutory requirements. See, 725 ILCS 5/107A-5.4. Additionally, in Illinois, these identification procedures must comply with case law

that may be more restrictive than federal case law.5. If the court finds the identification procedure were improper, the eyewitness may

still be allowed to identify the defendant at trial if there is an independent basis of reliability for the witness’s identification. People v. Curtis, 113 Ill. 2d 136, 143, 497 N.E. 2d 1004 (1986). This will be discussed in more detail when discussing motions to suppress the identification.

B. Federal Constitutional Requirements1. 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… United States Constitution, Fifth Amendment.

2. 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. (emphasis added) United States Constitution, Sixth Amendment.

3. The Fifth Amendment generally governs pre-charging identification procedures, whereas the Sixth Amendment governs post-charging identification procedures.

4. The distinction between the defendant’s Fifth and Sixth Amendment rights is best illustrated by discussion of the defendant’s right to counsel at a line-up.

5. Prior to initiation of the adversary proceedings, the defendant does not have the constitutional right to have an attorney present at a line-up. People v. Bolden, 197 Ill. 2d 166, 176, 756 N.E. 2d 812 (2001), citing U.S. Supreme Court precedent, including United States v. Wade, 388 U.S. 218, 226-227, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Since the appearance in a lineup is non testimonial in nature and does not constitute an interrogation, the identification stemming from a lineup does not implicate any Fifth Amendment concerns. Bolden 197 Ill. 2d at 176, citing Wade, 388 U.S. at 221-223.

6. In contrast, a lineup conducted after adversarial judicial proceedings have commenced is a “critical stage” and denying counsel during a lineup impermissibly violates an accused’s Sixth Amendment right to counsel. People v. Curtis, 113 Ill. 2d 136, 143, 497 N.E. 2d 1004 (1986). Once attachment of the Sixth Amendment right to counsel occurs, the accused is entitled to the presence of appointed counsel

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during any critical stage of the post attachment proceedings. United States v. Wade, 388 U.S. at 226-227. If the lineup is held in violation of the Sixth Amendment, any evidence offered by the State showing that the witness identified the accused from that process is subject to a per se rule of exclusion. Gilbert v. Californa, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). This if often referred to as the Wade-Gilbert rule.

7. The defendant’s right to counsel must attach before a Sixth Amendment violation will require suppression of the witness’s testimony at trial. The right to counsel does not attach until a prosecution is commenced. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 175 l. Ed. 2d 158 (1991). The Supreme Court has identified commencement of a criminal prosecution as “the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128 S. Ct. 2578, 2583, 171 l. Ed. 2d 366 (2008).

8. The defendant’s Sixth Amendment right to counsel is “offense specific.” People v. Sealey, 311 Ill. App. 3d 120, 124, 724 N. Ed. 2d 110 (1999). Consequently, the defendant who is charged on one case may be placed in a line-up on an unrelated case without notifying counsel on the first case.

C. Illinois Statutory Considerations. 725 ILCS 5/107A-5.1. In Illinois there are additional requirements for the admission of pretrial

identifications.2. Lineups. All lineups must be photographed or otherwise recorded. These

photographs must be disclosed to the defendant and his or her attorney during discovery.

3. Photographs. All photographs of suspects shown to an eyewitness during a photo spread must be disclosed to the defendant and his or her attorney during discovery.

4. Eyewitnesses who view a lineup or photo spread must sign a form, containing the following information:

a. The suspect might not be in the lineup or photo spreads and the eyewitness is not obligated to make an identification;

b. The eyewitness should not assume that the person administering the lineup or photo spread knows which person is the suspect in the case.

5. Suspects in a lineup or photo spread should not appear to be substantially different from the “fillers” in the lineup or photo spread, based on the eyewitness’ previous description of the perpetrator, or based on other factors that would draw attention to the suspect.

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PRE-TRIAL IDENTIFICATION PROCEDURES

A. Show-ups 1. As previously discussed, this procedure involves a one-on-one confrontation

between the eye witness and the suspect. During these confrontations, the police will detain a suspect in order to determine if the eyewitness can identify the suspect. The courts have reluctantly approved this procedures under limited circumstances based on the urgencies and exigencies after a crime is committed.

2. During these encounters the eyewitness is either brought to the site where the suspect is being detained or the suspect is brought to the location where the witness is being questioned. The detention of the suspect during these encounters may also implicate the suspect’s Fourth Amendment rights. See, for example, 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); People v. Lippert, 89 Ill. 2d 171, 188, 432 N. E.2d 605 (1982).

3. Illustrative Casesa. Show-up is justified when it is necessary to facilitate a police search for the

real offender. The Supreme Court has consistently upheld prompt identification of a suspect by a witness or victim near the scene of the crime where they foster the desirable objectives of a fresh, accurate, identification, which may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing offender while the trail is still fresh. People v. Ramos, 339 ill. App. 3d 891, 897,791 N.E. 2d 592 (2003), citing People v. Hicks, 134 Ill. App. 3d 1031, 1036, 481 N.E. 2d 920 (1985).

b. Viewing by the victim in the hospital is proper when it is uncertain whether the victim will live. People v. Gerbacher, 44 Ill. 2d 321, 255 N.E. 2d 429 (1970).

c. An accidental encounter between the eyewitness and the defendant, which is unprompted and positive, is not impermissible. People v. Lutz, 103 Ill. App. 3d 976, 431 N.E. 2d 753 (1982).

B. Photographic identifications1. Photographic identification by an eyewitness is a proper means of identification and

may be properly admitted at trial. People v. Maffioli, 406 Ill. 315,322, 94 N.E. 2d 191 (1950). The photo array should contain the suspect’s photo along with several fillers. Although there is no per se rule on the number of photos, you generally see a total of five photographs when there is one suspect. Showing the eyewitness one photo of the suspect is generally improper. People v. Enis, 163 Ill. 2d 367, 645 N.E.

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2d 856(1994) (however the court ruled that there was an independent basis for the eyewitness’ identification at trial).

2. Sixth Amendment. There is no 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).

3. Illinois case law. In Illinois, photographic identification procedures should not be used when the defendant is in custody, and a lineup is otherwise feasible. People v. Holiday, 47 Ill. 2d 300, 265 N.E. 2d 634 (1970). This rule is not absolute.

4. Illustrative cases:a. Extenuating circumstances existed in that the victim had undergone surgery

for cancer and was still in bad health. People v. Williams, 60 Ill. 2d 1, 322 N.E. 2d 819 (1975); People v. Garcia, 97 Ill. 2d 58, 454 N.E. 2d 274 (1983).

b. Court approved the photographic identification where the defendant was in custody on an unrelated drug charge and the victim was still in the hospital. People v. Hejka, 15 Ill. App. 3d 181, 303 N.E. 2d 433 (1973).

5. The procedure must also comply with 725 ILCS 5/107A-5.C. Lineup procedures

1. Lineups are the preferred method of identification. In the lineup, the suspect is placed in a room with several “fillers” or “distracters.” Although there is no per se rule on the number of fillers that should be in a lineup, the general procedure is to have a total of five people in the lineup including the suspect. The fillers should be similar in age, race, build, etc. The police must also comply with 725 ILCS 5/107A-5. The eyewitness is usually in another room and views the lineup through a one-way mirror.

2. Sixth Amendment. As stated earlier, once attachment of the Sixth Amendment right to counsel occurs, the accused is entitled to the presence of appointed counsel during any critical stage of the post attachment proceedings. White, 395 Ill. App. 3d at 808-809, citing United States v. Wade, 388 U.S. at 226-227. If the lineup is held in violation of the Sixth Amendment, any evidence offered by the State showing that the witness identified the accused from that process is subject to a per se rule of exclusion. Gilbert v. Californa, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). Much of the litigation in this area centers on the issue of when the Sixth Amendment right to counsel attaches. The United States Supreme Court clarified this issue in Rothgery v. Gillespie County, 554 U.S. 191, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008). The Rothgery Court said that the 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 Sixth Amendment right to counsel. Rothgery, 554 U.S. at 213.

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3. Illustrative cases regarding the issue of when the Sixth Amendment attaches:a. Police officer’s presentation of a complaint to a judge for an arrest warrant

did not begin the adversary proceeding so that the defendant was entitled to have an attorney present at a subsequent lineup. People v. Wilson, 116 Ill. 2d 29, 506 N.E. 2d 571 (1987).

b. If the defendant’s Sixth Amendment right to counsel has attached, defense counsel should be allowed to view the identification from the witness room. A policy of excluding the attorney from the witness room at the moment of identification violates the accused’s Sixth Amendment right to counsel. White, 395 Ill. App. 3d at 818.

CONTESTING THE PRE-TRIAL IDENTIFICATION PROCEDURES

A. Motion to Suppress the Identification1. As stated earlier, even if the court finds the identification procedure were improper,

the eyewitness may still be allowed to identify the defendant at trial if there is an independent basis of reliability for the witness’s identification. People v. Curtis, 113 Ill. 2d 136, 143, 497 N.E. 2d 1004 (1986). The issue is whether the out-of-court identification was so impermissibly suggestive as to create a substantial risk or irreparable misidentification. People v. McTush, 81 Ill. 2d 513, 410 N.E. 2d 861 (1980); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247(1968).

2. A defendant who wishes to contest the identification procedures will file a motion to suppress the identification prior to trial. The defendant bears the burden of establishing the pretrial identification was so unnecessarily suggestive that it gave rise to a substantial likelihood of an unreliable identification. If the defendant meets his burden, the State must then show by clear and convincing evidence that there is an independent basis of reliability for the in-court identification. People v. Smith, 362 Ill. App. 3d 1062, 1076, 841 N.E. 2d 489 (2005). If the defendant fails to meet his burden, then the court will deny the motion at that point.

3. Reliability of Eye Witness Identifications. The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eye witness’s identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. Perry v. New Hampshire, U.S. , 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012).

4. Independent Basis of Reliability. The factors the courts look at in evaluating the reliability of the identification include:

a. The opportunity of the witness to observe;

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b. The witness’ degree of attention;c. The accuracy of the witness’ prior description of the criminal at the time of

the crime;d. The level of certainty by the witness at the pretrial confrontation; ande. The length of time between the crime and the confrontation. . People v.

McTush, 81 Ill. 2d 513, 410 N.E. 2d 861 (1980); People v. Blumenshine, 42 Ill. 2d 508, 514, 250 N.E. 2d 152 (1969). These same factors are set forth in the Illinois Pattern Jury Instructions, Criminal, 3.15.

5. Illustrative cases:a. In order to establish the identification procedure was unnecessarily

suggestive, the defendant may call the eyewitness. People v. Smith, 362 Ill. App. 3d 1062, 1076, 841 N.E. 2d 489 (2005).

b. The state may bolster the testimony of a witness’ pretrial and in-court identification by eliciting testimony from the witness that he or she did not identify anyone in a prior pretrial lineup or photo array where the defendant was not present. People v. Tisdale, 201 Ill. 2d 210, 775 N.E. 2d 921 (2002).

c. People v. Daniels , 2014 IL App (1st) 121171, 12 N. E. 3d 715. Court rejects defense argument that the lineup was impermissibly suggestive because defendant was the only person in the lineup who was also in the photo array. Court follows prior case law.

Chapter 3 Statements by the Accused

GENERAL OVERVIEW

A. Starting Point1. Statements by the accused may be used by the prosecution as evidence against the

defendant. In order to use the defendant’s statements, the State must show that the statements were not obtained by violating the defendant’s federal or state constitutional rights. The State must also show that the statements were obtained in compliance with state law.

2. The Fifth and Sixth Amendment rights are the defendant’s primary guarantees in this area. As previously discussed, the Fifth Amendment rights govern statements made by the accused prior to formal charges being placed. The accused’s Sixth Amendment rights govern statements by the accused made after he or she is formally charged. Most of the case law in this area centers on the defendant’s Fifth Amendment guarantees.

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3. The corresponding provisions in the Illinois Constitution can be found in Article 1, section 8 (Rights after Indictment) and Article 1, section 10 (Self-Incrimination and Double Jeopardy). Ill. Const. 1970, art. I, sec. 8 & sec. 10 The Illinois Supreme Court has generally construed the language of the Illinois Constitution as being synonymous with the U.S. Constitution; however they have applied the limited lockstep approach and deviated from federal precedent. See, People v. McAuley, 163 Ill. 2d 414, 422-426, 645 N.E. 2d 923 (1994).

4. The defendant’s Fourth Amendment protections may also come into play. If the defendant is arrested in violation of the Fourth Amendment, any post-arrest statement he makes may be suppressed as fruit of the poisonous tree. In those cases the State has the burden of showing the confession was not obtained as a result of the exploitation of the illegal arrest. Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); People v. Johnson, 237 Ill. 2d 81, 927 N.E. 2d 1179 (2010).

5. Special considerations. There are additional considerations the courts must consider when dealing with juveniles and those who suffer from some form of mental handicap or deficiency. These considerations will be discussed in more detail later in the chapter.

B. Illinois Statutory Considerations1. The statutory requirements are set forth in Article 103 of the Illinois Code of

Criminal Procedure. 725 ILCS 5/103-1, et.seq. Except for 103-2.1, these statutory requirements generally codify prior state and federal case law. See, 103/1 (Rights on arrest); 103-2 (Treatment while in custody); 103/3 (Right to communicate with attorney and family; transfers); 103-4 (Right to consult with attorney).

2. Reviewing courts usually discuss the statutory requirements in conjunction with the constitutional guarantees. Failure to comply with the statutory requirements is rarely the sole basis for reversing a trial court’s decision to admit a defendant’s statement.

3. When statements by accused may be used. 725 ILCS 103-2.1. Effective July, 2005, any statement made by a suspect during a custodial interrogation at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused in any criminal proceeding for certain enumerated crimes, unless:

a. An electronic recording is made of the custodial interrogation; andb. The recording is substantially accurate and not intentionally altered.

4. These enumerated crimes in Section 103-2.1 include, first degree murder; intentional homicide of an unborn child; second degree murder; voluntary manslaughter of an unborn child; involuntary manslaughter and reckless homicide; involuntary manslaughter and reckless homicide of an unborn child; drug induced

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homicide; or aggravated driving while under the influence of alcohol or drugs involving death of another person.

5. Section 103-2.1 sets forth certain exceptions. 725 ILCS 5/103-2.1(e). See, People v. Armstrong, 395 Ill. App. 3d 606; 919 N.E.2d 57 (2009). See, also People v. Harper, 2012 IL App (4th) 110880, 959 N.E. 2d 703 (Trial court erred in suppressing defendant’s statement due to inadvertent and unintentional malfunction of the audio portion of the recorded statement. Case remanded to the trial court to determine whether the statement was reliable.)

6. The presumption of inadmissibility in Section 103-2.1 may be overcome if the state can prove by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances. 725 ILCS 5/103-2.1(f).

C. Fourth Amendment Considerations1. As stated earlier, if the defendant is arrested in violation of the Fourth Amendment,

any post-arrest statement he makes may be suppressed as fruit of the poisonous tree. However, a confession given by a defendant following an illegal arrest may be admissible if it is sufficiently attenuated from any illegality. Brown v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); People v. Salgado, 396 Ill. App. 3d 856, 860, 920 N.E. 2d 1194 (2009).

2. In order to prove that a confession was sufficiently attenuated so as to be admissible, the State must show by clear and convincing evidence that the statement was a product of the defendant’s free will and independent of the taint of the illegal arrest. People v. Scott, 366 Ill. App. 3d 638, 646, 852 N.E. 2d 531 (2006); People v. Berry, 314 Ill. App. 3d 1, 15, 731 N.E. 2d 853 (2000).

3. The relevant inquiry is whether the confession was obtained by exploitation of the illegal arrest or was obtained “by means sufficiently distinguishable to be purged of the primary taint” from the illegal arrest. Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Salgado, 396 Ill. App. 3d. at 860.

4. There are four factors to consider in an attenuation analysis:a. Whether Miranda warnings were given;b. The proximity of time between defendant’s arrest and statement;c. Whether there were intervening circumstances; and d. The flagrancy of the police misconduct. Brown, 422 U.S. at 603-604.

5. Presence of Miranda Warnings. While the presence of Miranda warnings alone is not sufficient to purge the taint of illegality from an illegal arrest, it is a factor to be considered. Johnson, 237 Ill. 2d at 93-94, citing People v. Morris, 209 Ill. 2d 137, 158, 807 N.E. 2d 377 (2004)

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6. Proximity in Time between Arrest and Statement. The courts have held that temporal proximity between arrest and the statement is often an ambiguous factor, the significance of which will depend on the circumstances of the case, including the conditions under which the time passes. Johnson, 237 Ill. 2d at 93-94, citing People v. Morris, 209 Ill. 2d at 160; People v. White, 117 Ill. 2d 194, 223-24, 512 N.E. 2d 677 (1987).

7. Intervening Circumstances. Typically intervening circumstances and flagrancy of police misconduct are the two key factors in determining whether police exploited the illegal arrest to obtain a confession. People v. Klimawicze, 352 Ill. App. 3d 13, 19, 815 N.E. 2d 760 (2004).

8. Intervening circumstances sever the causal connection between the taint of an illegal arrest and incriminating statements by the defendant. Klimawicze, 352 Ill. App. 3d at 20; Salgado, 396 Ill. App. 3d. at 861. Such circumstances may include the confrontation of defendant with untainted evidence implicating him in an offense (see, People v. Scott, 366 Ill. App. 3d at 647; People v. White, 117 Ill. 2d 194, 225-26, 512 N.E. 2d 677(1987)) or an independent search that yielded sufficient probable cause to place defendant in police custody (see Scott, 368 Ill. App. 3d at 647; People v. Tingle, 279 Ill. App. 3d 706, 715, 665 N.E. 2d 383 (1996).

9. Flagrancy of Police Misconduct. Police action is flagrant where the investigation is carried out in such a manner as to cause surprise, fear, and confusion, or where it otherwise has a ‘quality of purposefulness,’ i.e., where the police embark upon a course of illegal conduct in the hope that some incriminating evidence (such as the very statement obtained) might be found. Salgado, 396 Ill. App. 3d. at 865, citing People v. Jennings, 296 Ill. App. 3d 761, 765, 695 N.E. 2d 1303 (1998); People v. Foskey, 136 Ill. 2d 66, 86, 554 N.E. 2d 192 (1990).

SIXTH AMENDMENT CONSIDERATIONS

A. The Starting Point for Sixth Amendment Analysis1. The Sixth Amendment right to assistance of counsel does not attach until a

prosecution is commenced. Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008), citing McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2203, 115 L. Ed. 2d 158 (1991). The right to counsel attaches at the initiation of the adversary judicial proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Rothgery, 554 U.S. 191, 198, citing United States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984).

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2. The Sixth Amendment right is offense specific. It cannot be invoked once for all future prosecutions, because it does not attach until a prosecution is commenced. McNeil v. Wisconsin, 501 U.S. at 175, citing Gouveia, 467 U.S. at 188.

3. Much like the issue of the Sixth Amendment and identification procedures, the litigation in this area centers on the question of when the Sixth Amendment right to counsel attaches. The United States Supreme Court clarified this issue in Rothgery. The Rothgery Court said that the 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 Sixth Amendment right to counsel. Rothgery, 554 U.S. at 213.

B. Waiver of the Sixth Amendment Right to Counsel1. Once the adversary judicial process has been initiated, the Sixth Amendment

guarantees the right to have counsel present at all “critical stages” of the criminal proceedings. Montejo v. Louisiana, 556 U.S. 778 , 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009), citing United States v. Wade, 388 U.S. 218, 227-228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Powell v. Alabama, 287 U.S. 45, 57, 53 S. Ct. 55, 77 L. Ed. 158 (1932).

2. The Sixth Amendment right to counsel may be waived by the defendant so long as relinquishment of the right is voluntary, knowing, and intelligent. Montejo, 556 U.S. 778, 129 S. Ct. at 2085, citing Patterson v. Illinois, 487 U.S. 285, 292, N. 4, 108s. Ct. 2389, 101 L. Ed. 2d 261 (1988). The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. Montejo, 556 U.S. 778 , 129 S. Ct. at 2085, citing Michigan v. Harvey, 494 U.S. 344, 352-353, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990).

3. In Michigan v. Jackson, 475 U.S. 625, 633, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986) the Supreme Court decided that a request for counsel at an arraignment should be treated as an invocation of the Sixth Amendment right to counsel at every critical stage of the prosecution. The Jackson Court established a prophylactic rule forbidding the police from initiating interrogation of a defendant once he has requested counsel at an arraignment or similar proceeding. Jackson, 475 U.S. at 636.

4. The United States Supreme Court recently overruled Jackson in Montejo v. Louisiana, supra. In Montejo, the defendant was charged with first-degree murder and brought before a judge for preliminary hearing. The court ordered the appointment of counsel. Later that day, the police read Montejo his Miranda warnings and he agreed to go along on a trip to locate the murder weapon. During the trip, he wrote an inculpatory letter of apology to the victim’s widow. Upon returning he met his court-appointed lawyer. The letter was subsequently admitted

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over defense objection. Montejo, 556 U.S. 778 , 129 S. Ct. at 2082. The Court abandoned the prophylactic test in Jackson and concluded that the Miranda warnings adequately inform the defendant of his right to have counsel present during the questioning and make him aware of the consequences of a decision by him to waive his Sixth Amendment rights. Montejo, 556 U.S. 778 , 129 S. Ct. at 2092.

C. Illustrative Cases1. Offense Specific Requirement. In Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335, 149 L.

Ed. 2d 321 (2001) the defendant was charged with burglarizing his neighbor’s home. He was represented by an attorney on the burglary charge. At the time of his arrest on the burglary charge, he was questioned about the disappearance of two of the occupants of the home, but he denied any knowledge of their disappearance. While on bond on the burglary, the police received information from the defendant’s father that defendant had admitted to killing the occupants. The defendant was subsequently arrested for the murders. He was given his Miranda warnings and he confessed to the murders. His attorney on the burglary charge was never contacted. Cobb, 532 U.S. at 166-167. The Supreme Court declined to extend the Sixth Amendment right to counsel to uncharged crimes even though they may be closely related factually to charged crimes. See, also People v. Sealey, 311 Ill. App. 3d 120, 724 N.E. 2d 110 (1999).

2. In McNeil v. Wisconsin, supra, the Supreme Court held that a defendant’s invocation of his Sixth Amendment right to counsel during a judicial proceeding does not trigger the defendant’s Fifth Amendment right to counsel as to uncharged offenses. McNeil, 501 U.S. at 176-182.

FIFTH AMENDMENT GENERAL CONSIDERATIONS

A. General Overview1. As previously stated, the Fifth Amendment governs pre-charging statements by the

accused. In Illinois there are statutory considerations that also apply. Reviewing courts usually discuss the statutory requirements in conjunction with the constitutional guarantees. (See General Overview, section B, above.) There are also additional statutory safeguards afforded juveniles in police custody.

2. The discussion of the Fifth Amendment is generally divided into two broad categories. The first category involves Miranda issues. The second category involves issues of voluntariness. The discussion of these categories often overlaps.

3. Miranda Issues. The case law in this area can be divided into three areas of inquiry:a. Was the defendant in custody?b. Did the defendant understand his Miranda warnings?

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c. Did the defendant waive his rights or did he invoke one or more of his Miranda rights?

4. Voluntariness Issues. The courts also review a defendant’s statement to determine whether or not it was voluntarily given. The courts evaluate the statement under the “totality of the circumstances” test. The courts look at the totality of the circumstances to determine whether the statement was freely and voluntarily given. The courts look at a number of factors under this test. The absence of one or more of these factors does not necessarily mean the statement was involuntary.

FIFTH AMENDMENT MIRANDA ISSUES

A. The starting point: Miranda v. Arizona1. The Fifth Amendment states, 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… United States Constitution, Fifth Amendment. Like the Fourth and Sixth Amendments, the Fifth Amendment is silent as to how this goal can be accomplished. The United States Supreme Court has developed the procedures for protecting these rights. The landmark decision in this area is Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2. Miranda v. Arizona sets forth procedural safeguards to protect the accused’s privilege against self-incrimination. The Miranda decision governs custodial interrogations. Prior to any police initiated, custodial conversations, the police must inform the accused of his Miranda rights.

3. Miranda warnings. Prior to any questioning, the accused must be informed that:a. He has the right to remain silent;b. Any statement he does make may be used as evidence against him; andc. He has the right to the presence of an attorney; andd. If he cannot afford an attorney one will be appointed for him prior to any

questioning if he so desires. Miranda, 384 U.S. at 479.4. If a suspect makes a statement during custodial interrogation, the burden is on the

Government to show, as a prerequisite to the statement’s admissibility in the Government’s case in chief, that the defendant “voluntarily, knowingly and intelligently” waived his rights. Miranda, 384 U.S. at 444, 475-476.

5. Exact recital of the 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, 559 U.S. 50, 130 S. Ct. 1195, 175 L. Ed. 2d 1009 (2010).

6. Once Miranda is complied with it is not necessary to repeat the warnings at the beginning of each interview unless the previous interrogations are so stale and remote that a substantial probability exists that the suspect was unaware of his

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constitutional rights. People v. DeGorski, 382 Ill. App. 3d 135, 886 N.E. 2d 1070 (2008).

7. The 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).

8. Public Safety Exception. After placing a suspect under arrest, the police may ask the suspect if he has a gun and where the gun is at. New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). See, also People v. Williams, 173 Ill. 2d 48, 670 N.E. 2d 638 (1996).

B. Failure to Give Miranda Warnings: Consequences1. Failure to give the Miranda warnings and obtain a waiver of rights before custodial

questioning generally requires exclusion of any statements obtained. People v. Lopez, 229 Ill. 2d 322, 355-56, 892 N.E. 2d 1047 (2008), citing Missouri v. Seibert, 542 U.S. 600, 608, 159 L. Ed. 2d 643, 124 S. Ct. 2601 (2004).

2. In Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985), the Supreme Court recognized that suppression of all statements obtained after police failed to warn pursuant to Miranda was not always necessary. "[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights." Elstad, 470 U.S. at 314, 84 L. Ed. 2d at 235, 105 S. Ct. at 1296. Lopez, 229 Ill. 2d at 356-57.

3. Question First, Warn Later. The general rule set forth in Elstad does not apply where it can be determined that the police deliberately employed a “question first, warn later” interrogation strategy. If such a strategy was deliberately used then statements made after Miranda warnings were given would be excluded unless curative measures had been taken. Lopez, 229 Ill. 2d at 358-59, quoting Seibert, 542 U.S. at 622. The Lopez court adopted Justice Kennedy’s reasoning in Seibert to determine whether the police used a question first, warn later interrogation strategy. The court set forth a two-step inquiry. First, the trial court must determine whether the police deliberately used the question first, warn later strategy. If there is no evidence to support a finding of deliberateness, then the analysis ends and the statement will be admissible. If there is evidence to support a finding of deliberateness, then the court must next consider whether curative

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measures were taken. Lopez, 229 Ill. 2d at 360-61. See also, People v. Alfaro, 366 Ill. App. 3d 271, 302-03, 896 N.E. 2d 1077 (2008).

4. First Inquiry: Did the police use the question first, warn later technique? The Lopez court recognized that police officers generally will not admit to using the question first, warn later strategy. Lopez, 229 Ill. 2d at 361. The trial court should consider the objective evidence along with any subjective evidence, like the officer’s testimony, to determine whether the question first, warn later strategy was employed. Lopez, 229 Ill. 2d at 361. The objective factors include: the timing, setting, and completeness of the unwarned interrogation, the continuity of police personnel, and the overlapping content of the unwarned and warned statements. Lopez, 229 Ill. 2d at 361; Alfaro, 366 Ill. App. 3d at 303.

5. Second Inquiry: Whether any curative measures were taken to make the second, warned statement admissible? At the second stage of the inquiry, the relevant question is whether, after receiving Miranda warnings midstream, a reasonable person in defendant’s situation would have understood that he retained a choice about continuing to talk to the police. Lopez, 229 Ill. 2d at 364; Alfaro, 366 Ill. App. 3d at 305. At this stage the trial court is to look at the following factors: the passage of time between the unwarned and warned statements, the location where the statements were taken, whether the questioning was conducted by the same person, whether details from the unwarned statement were used during the questioning following the warnings, whether the suspect was told the unwarned statement was likely to be inadmissible against him, and whether it was reasonable to look at the unwarned and warned interviews as parts of a continuum, in which it would have been unnatural to refuse to repeat the statement during the questioning following the warnings. Lopez, 229 Ill. 2d at 364-65; Alfaro, 366 Ill. App. 3d at 305.

C. What Constitutes Custodial Interrogation1. Since Miranda warnings are designed to protect the individual against the coercive

nature of custodial interrogation, they are required “only where there has been such a restriction on a person’s freedom as to render him “in custody.” J.D.B. v. North Carolina, 564 U.S. _, 131 S. Ct. 2394, 2402, 180 L. Ed. 2d 310 (2011), citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed 2d 293 (1994) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977) (per curiam).

2. Whether the suspect is in custody is an objective inquiry. “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave.” J.D. B., 131 S. Ct. at 2402, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 133

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L. Ed. 2d 383 (1995). The subjective views by either the interrogating officers or the person being questioned are irrelevant. J.D. B., 131 S. Ct. at 2402, citing Stansbury, 511 U.S. at 323. See, also People v. Slater, 228 Ill. 2d 137, 150, 886 N.E. 2d 986 (2008); People v. Bragg, 209 Ill. 2d 492, 505-506, 810 N.E. 2d 472 (2003). Although it is generally irrelevant that the interrogating officer subjectively viewed the individual under questioning as a suspect, the officer’s beliefs, if conveyed by word or deed to the individual being questioned, are relevant to the extent that they would affect how a reasonable person in the position of the individual being questioned would have gauged the breadth of his freedom of action. Braggs, 209 Ill. 2d at 506-507, citing Stansbury, 511 U.S. at 324.

3. Relevant Factors. When determining whether a statement was made in a custodial setting, the courts have examined a number of factors, including:

a. The location, time, length, mood, and mode of the questioning;b. The number of police officers present during the interrogation;c. The presence or absence of family and friends of the individual; d. Any indicia of a formal arrest procedure, such as the show of weapons or

force, physical restraint, booking or fingerprinting;e. The manner by which the individual arrived at the place of questioning; andf. The age, intelligence, and mental makeup of the accused. Slater, 228 Ill. 2d

at 150, citing Braggs, 209 Ill. 2d at 506, People v. Melock, 149 Ill. 2d 423, 440, 599 N.E. 2d 941 (1992).

4. In J.D.B. v. North Carolina, the Supreme Court recently addressed the issue of whether the age of a child subjected to police questioning is relevant to the custody analysis of Miranda. The Court held, “that so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of the test.” J.D.B., 564 U.S. _, 131 S. Ct. 2394, 2406, 180 L. Ed. 2d 310 (2011). This decision is consistent with prior Illinois case law. See, Braggs, 209 Ill. 2d at 510-511. The Braggs court also extended the custody analysis to the mentally retarded. Braggs, supra.

D. Custodial Interrogation: Illustrative Cases1. Traffic stop. 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 for a misdemeanor or traffic offense. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed, 2d 317 (1984). Generally, due to the noncoercive aspect of ordinary traffic stops a person temporarily detained during a traffic stop is not in custody. However, if such person thereafter is subjected to treatment that renders him in custody for practical purposes, he will be entitled to

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the full panoply of protections prescribed by Miranda. People v. Jordan, 2011 IL App (4th) 100629, P. 20, 960 N.E. 2d 1253 (2011). (Defendant-passenger was detained and isolated from driver for 27 minutes, during a portion of which she was in a locked squad car, before she confessed.)

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

3. Voluntary presence at a police station. No Miranda warnings were 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. Oregon v Mathiason 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). 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. People v. Lopez, 229 Ill. 2d 322, 892 N.E. 2d 1047 (2008). See, also People v. Alfaro, 386 Ill. App.3d 271, 896 N.E.2d 658 (2008).

4. Circumstances surrounding the interrogation. In Howes v. Fields, 565 U.S. , 132 S. Ct. 1181, 1189, 182 L. Ed. 2d 17 (2012) rejected the appellate court holding that a prisoner is always in custody for purposes of Miranda whenever a prisoner is isolated from the general prison population and questioned about conduct outside the prison. In reaching their conclusion the Court further clarified its prior decisions on what constitutes Miranda custody. In order to determine how a suspect would have gauged his freedom of movement the courts must examine all the circumstances surrounding the interrogation. Relevant factors include the location of the questioning, duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning. (internal citations omitted)

5. Defendant was not in custody for purposes of Miranda when he was questioned at a Child Advocacy Center. People v. Slater, 228 Ill. 2d 137, 886 N.E. 2d 986 (2008).

6. Jailhouse conversations. Miranda is not implicated during jailhouse conversations between suspects and undercover police agents. The Supreme Court reasoned that the concerns underlying Miranda are not implicated in such circumstances because “the essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate.” People v. Lashmet, 372 Ill. App. 3d 1037, 1041, 868 N.E. 2d 368 (2007), citing Illinois v. Perkins, 496 U.S. 292, 296, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990). See also, People v. Hunt, 2012 IL 111089, 969 N.E. 2d 819 (2012). (Defendant’s McAuley right to an immediately available attorney arises only during

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police custodial interrogation. The appellate court erred in upholding suppression of defendant’s statements to an informant on McAuley grounds.)

7. Statements to a Probation Officer. The defendant was not in custody for purposes of Miranda when he gave incriminating statements to his probation officer. Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984).

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

9. Search warrant. Appellate court found that person detained during the execution of a search warrant was “in custody” for Miranda purposes. People v. Fort, 2014 IL App (1st) 120037, 10 N. E. 3d 292.

10. 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.

E. Knowing and Intelligent Waiver1. An accused’s statement during a custodial interrogation is inadmissible at trial unless

the prosecution can establish that the accused knowingly and voluntarily waived his Miranda rights when making the statement. Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010), citing North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979).

2. The waiver inquiry “has two distinct dimensions”: waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and “made with the full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Berghuis, supra, citing Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986).

3. A criminal suspect is not required to know and understand every possible consequence of a waiver of the Fifth Amendment privilege for it to be knowingly and intelligently made. People v. Braggs, 209 Ill. 2d 492, 515, 810 N.E. 2d 472 (2003), citing Colorado v. Spring, 479 U.S. 564, 574, 107 S. Ct. 851, 93 l. 3d. 2d 954 (1987). However, in order to effect an intelligent and knowing waiver of Miranda rights, a defendant must have “‘a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Braggs, supra, citing People v. Bernasco, 138 Ill. 2d 349, 360, 562 N.E. 2d 958 (1990), quoting Patterson v. Illinois, 487 U.S. 285, 292, 108 S. Ct 2389, 101 L. Ed. 2d 261 (1988). Whether a defendant intelligently waived his right to counsel depends, in each case,

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on the particular facts and circumstances of that case, including the defendant’s background, experience, and conduct. Bernasco, 138 Ill. 2d at 368.

F. Knowing and Intelligent Waiver: Illustrative Cases1. Mental Retardation. While evidence of a defendant’s limited mental or intellectual

capacity at the time of a confession, alone, does not establish that he or she was incapable of waiving Miranda rights, limited intellectual capacity is one of the factors to be considered in this regard. People v. Braggs, 209 Ill. 2d 492, 514, 810 N.E. 2d 472 (2003).

2. Age. In a closely related issue to mental capacity, the courts will look at the defendant’s age in determining whether the waiver of Miranda rights was knowingly and intelligently relinquished. People v. Wipfler, 68 Ill. 2d 158, 172, 368 N.E. 2d 870 (1977) (“this court recognized that special care must be taken when determining the voluntariness of a minor’s waiver of rights.”); In re W.C., 167 Ill. 2d 307, 657 N.E. 2d 908 (1995); People v. Reid, 136 Ill. 2d 27, 554 N.E. 2d 174 (1990).

G. Right to Remain Silent1. In order to invoke his right to remain silent, an accused must do so unambiguously.

Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010). In Berghuis, the Supreme Court held that a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Berghuis, 130 S. Ct. at 2264.

2. The prosecution does not need to show that the waiver of Miranda rights was express. An “implicit waiver” of the “right to remain silent” is sufficient to admit a suspect’s statement into evidence. Berghuis, 130 S. Ct. at 2261, citing Butler, 441 U.S. at 376. The waiver of Miranda rights may be implied through “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver. Berghuis, supra, citing Butler, 441 U.S. at 373. The prosecution must also make the additional showing that the accused understood these rights. Berghuis, supra, citing Colorado v. Spring, 479 U.S. 564, 573-575, 107 S. Ct. 851, 93 l. 3d. 2d 954 (1987). Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes and implied waiver of the right to remain silent. Berghuis, 130 S. Ct. at 2262.

3. Miranda, post Berghuis. Salinas v. Texas, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013). Facts. Defendant voluntarily comes into the police station. Without being given Miranda, defendant voluntarily answers questions regarding a murder. Defendant balks when asked whether a ballistics test would show that the shell casings found at the scene would match his shotgun. Prosecution comments on defendant’s

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silence at trial. Defendant claims that the argument violated his Fifth Amendment rights. The court held that in order to rely on the privilege against self-incrimination, the suspect must invoke the right to remain silent.

4. Once a suspect indicates at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege. Michigan v. Mosely, 423 U.S. 96, 100, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). The admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.” Mosely, 423 U.S. at 104.

5. When deciding whether or not the statement is admissible the courts look at the following factors:

a. did the police immediately halt the initial interrogation after the defendant invoked his right to remain silent;

b. did a significant amount of time elapse between the interrogations;c. was the defendant given a fresh set of Miranda warnings prior to the second

interrogation; and d. did the second interrogation address a crime that was not the subject of the

first interrogation. Mosely, 423 U.S. at 104-105; People v. Nielson, 187 Ill. 2d 271, 287, 718 N.E. 2d 131 (1999).

6. In Illinois, the fact that the second interrogation addressed the same crime as the first interrogation does not preclude a finding that the defendant’s right to remain silent was scrupulously honored. People v. Foster, 119 Ill. 2d 69, 86-87, 518 N.E. 2d 82 (1987).

H. Right to an attorney1. When an accused has invoked his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).

2. Edwards established a bright line test. Once a defendant invokes his right to an attorney he may not be questioned further until an attorney is made available. A suspect who has invoked his right to an attorney can only waive his previously invoked right if:

a. he initiates further discussions with the police; and

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b. he knowingly and intelligently waived the right he previously invoked. Smith v. Illinois, 469 U.S. 91, 95, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984).

3. A defendant’s invocation of his right to an attorney must be unambiguous. Davis v. United States, 512 U.S. 452; 114 S. Ct. 2350; 129 L. Ed. 2d 362 (1994). See also, People v. Oaks, 169 Ill. 2d 409, 662 N.E. 2d 1328 (1996); In re Christopher K., 217 Ill. 2d 348, 379, 841 N.E. 2d 945 (2005); People v. Polk, 407 Ill. App. 3d 80, 97, 942 N.E. 2d 44 (2010).

4. Distinction between invoking the right to remain silent and the right to an attorney. Unlike the invocation of the right to remain silent, if a suspect invokes his right to an attorney he may not be questioned by the police unless he initiates the discussions. If a suspect invokes his right to remain silent, the police may reinitiate discussions if the factors set forth in Michigan v. Mosely are present.

5. Once the defendant has invoked his right to an attorney, the presumption of involuntariness established in Edwards also applies to police initiated conversations on unrelated offenses. Whether or not the second set police officers knew the defendant had invoked his right to an attorney on the first case is immaterial. Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988).

6. The Supreme Court recently addressed the issue of whether a break in custody ends the presumption of involuntariness established in Edwards. The Court held that a 14-day break in Miranda custody is sufficient to break the presumption of involuntariness under Edwards. Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 1223, 175 L. Ed. 2d 1045 (2010).

I. Right to an Attorney: Illustrative Cases1. A defendant cannot anticipatorily invoke his Miranda Rights prior to custodial

interrogations. People v. Villalobos, 193 Ill. 2d 229, 737 N.E. 2d 639 (2000) (Defendant was charged with murder after first giving a confession to the police. At a bond hearing on prior, unrelated charges, defendant signed a standard form which contained a section stating the defendant was barred from participating in future cases without counsel present.).

2. A defendant must invoke his Miranda warnings; a third party cannot invoke the rights for the defendant. People v. Young, 365 Ill. App. 3d 753, 850 N.E. 2d 753 (2006), citing Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986).

3. Case law finding the defendant initiated conversations after previously invoking the right to an attorney. People v. Miller, 393 Ill. App. 3d 585, 898 N.E. 2d 6568 (2008) (police officer’s response to defendant’s question reminding him that he had previously invoked his right to an attorney and re-advising defendant of his Miranda

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warnings was proper). People v. Outlaw, 388 Ill. App. 3d 1072, 904 N.E. 2d 1208 (2009).

4. Case law finding defendant had not initiated conversations after previously invoking his right to an attorney. People v. Olivera,164 Ill. 2d 382, 647 N.E. 2d 926 (1995) (defendant's question "what happened?" posed to the detective immediately following the conclusion of the lineup cannot be said to evince on the defendant's part a willingness and a desire for a generalized discussion concerning the investigation).

5. Presence of an Attorney at the Police Station. In Illinois, when police, prior to or during custodial interrogation, refuse an attorney, appointed or retained to assist a suspect, access to the suspect, there can be no knowing waiver of the right to counsel if the suspect has not been informed that the attorney was present and seeking to consult with him." People v. McCauley, 163 Ill. 2d 414, 425, 645 N.E. 2d 923 (1994), citing People v. Smith, 93 Ill. 2d 179, 189, 442 N.E. 2d 1325 (1982). In so holding, rejected the reasoning in Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986) and based its decision on state constitutional law (Ill. Const. 1970, art. I, §§ 2, 10). McCauley, 163 Ill. 2d at 424.

FIFTH AMENDMENT VOLUNTARINESS ISSUES

A. General overview1. The test of voluntariness is 'whether the defendant made the statement freely,

voluntarily, and without compulsion or inducement of any sort, or whether the defendant's will was overcome at the time he or she confessed.'" People v. Richardson, 234 Ill. 2d 233, 253, 917 N.E. 2d 501 (2009), citing People v. Slater, 228 Ill. 2d 137, 160, 886 N.E. 2d 986 (2008).

2. Totality of the Circumstances Test. In determining whether a statement is voluntary, a court must consider the totality of the circumstances of the particular case; no single factor is dispositive. Factors to consider include the defendant's age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the presence of Miranda warnings; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises. Richardson, supra, citing Slater, 228 Ill. 2d at 160; People v. Melock, 149 Ill. 2d 423, 447-48, 599 N.E.2d 941 (1992).

3. Illinois Case Law: Additional Factors. Illinois courts have held that a confession must be voluntary in a “State-law sense” and that the defendant’s mental ability, familiarity with the English language, age, education, and experience are among

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factors to be weighed in determining from the totality of the circumstances whether a confession or waiver of rights is voluntary. People v. Bernasco, 138 Ill. 2d 349, 365, 562 N.E. 2d 958 (1990).

B. Juvenile Confessions. 1. The courts recognize that the taking of a juvenile’s confession is a sensitive concern.

Accordingly, “the ‘greatest care’ must be taken to assure that the confession was not coerced or suggested and that” it was not the product of ignorance of rights or of adolescent fantasy, fright or despair. “” In re G.O., 191 Ill. 2d 37, 54, 727 N.E. 2d 1003 (2000).

2. Concerned Adult Factor. Where a juvenile is concerned, additional factors to consider include whether the juvenile, either before or during the interrogation, had an opportunity to consult with an adult interested in his welfare; whether the police prevented the juvenile from conferring with a concerned adult; and whether the police frustrated the parent’s attempt to confer with the juvenile. G.O., 191 Ill. 2d at 55. However a juvenile’s confession should not be suppressed simply because he was denied the opportunity to confer with a parent or other concerned adult before or during the interrogation. G.O., supra. See, also People v. Minniti, 373 Ill. App. 2d 55, 68, 867 N.E. 2d 1237 (2007).

3. In People v. Murdock, 2012 IL 112362, 979 N.E.2d 74, the Illinois Supreme Court gave a detailed analysis of the “concerned adult” factor. Murdock noted that while the presence of a juvenile officer is a significant factor in the totality of the circumstances argument, the absence of a juvenile officer will not make a juvenile’s statements per se involuntary. Murdock, para. 49. The Murdock court also stated that the ability of a juvenile to speak with a concerned adult is not dispositive and just one of the many factors for the court to consider. Murdock, para. 54.

C. Legality and Duration of the Detention. 1. In Gerstein v. Pugh, the Supreme Court held that a judicial determination of

probable cause must precede an extended restraint of liberty following an arrest. Gerstein, 420 U.S. 103, 112, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). The Court left the states free to fashion appropriate procedures, provided they afford a fair and reliable judicial determination of probable cause either before or “promptly” after an arrest. Gerstein, 420 U.S. at 125; People v. Willis, 215 Ill. 2d 517, 526-527, 831 N.E. 2d 531 (2005).

2. In County of Riverside v. McLaughlin, the Supreme Court defined the term “promptly.” The Court held that where a jurisdiction provides judicial determinations of probable cause within 48 hours of arrest, the jurisdiction will, as a general matter, comply with the promptness requirement of Gerstein. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991). If the defendant receives a

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probable cause determination within 48 hours, the defendant bears the burden of showing the delay was unreasonable. However, where an arrested individual does not receive a probable cause determination within 48 hours, the burden shifts to the government to prove that the delay was not unreasonable and to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. McLaughlin, 500 U.S. at 63; Willis, 215 Ill. 2d at 527.

3. In People v. Willis, supra, the Illinois Supreme Court held that when faced with a Gerstein/McLaughlin violation, the inquiry is “whether the confession was voluntary—whether the inherently coercive atmosphere of the police station was the impetus for the confession or whether it was the product of free will.” Willis, 215 Ill. 2d at 535. The Court will look at it along with the other factors under the totality of the circumstances test. Willis, 215 Ill. 2d at 536. The Court went on to caution the police that an extraordinarily long delay which itself raises the inference of police misconduct could, at some point, render any confession involuntary. “The longer the delay, the greater the probability that the confession will be held involuntary. At some point, a delay will become so long that it alone is enough to make a confession involuntary.” Willis, 215 Ill. 2d at 538. (citations omitted)

4. Recent cases where the court determined the statement was voluntary. a. People v. Deloney , 359 Ill. App. 3d 458, 835 N.E. 2d 102 (2005);b. People v. Welch , 365 Ill. App. 3d 978, 851 N.E. 2d 584 (2005)c. People v. Woodard , 367 Ill. App. 3d 304, 854 N.E. 2d 674 (2006);d. People v. Macias , 371 Ill. App. 3d 632, 863 N.E. 2d 776 (2007);e. People v. Bennett , 376 Ill. App. 3d 554, 876 N.E. 2d 256 (2007);

5. Recent cases where the court determined the statement was involuntary.a. People v. Wead , 363 Ill. App. 3d 121, 842 N.E. 2d 227 (2005);b. People v. Mitchell , 366 Ill. App. 3d 1044, 853 N.E. 2d 900 (2006);c. People v. Sams , 367 ill. App. 3d 254, 855 N.E. 2d 158 (2006);

D. Physical Abuse by the Police.1. The United States Supreme Court “has long held that certain interrogation

techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause.” People v. Richardson, 234 Ill. 2d 233, 252, 917 N.E. 2d 501 (2009), citing Miller v. Fenton, 474 U.S. 104, 109, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985).

2. In Illinois, the Supreme Court has held that when it is evident that a defendant has been injured while in police custody, the State must show, by clear and convincing evidence, that the injuries were not inflicted as a means of producing the confession. People v. Wilson, 116 Ill. 2d 29, 40, 506 N.E. 2d 571, citing People v.

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Davis 35 Ill. 2d 202, 206 (1966); People v. LaFrana, 4 Ill. 2d 261,267 (1954); People v. Thomlison, 400 Ill. 555, 561-562 (1948). This requires more than the mere denial by the State’s witnesses that the confession was coerced. Wilson, supra. Where it is conceded, or clearly established, that the defendant received injuries while in police custody, and the only issue is how and why they were inflicted, the Court has held that something more than a mere denial by the police of coercion is required. Under such circumstances the burden of establishing that the injuries were not administered in order to obtain the confession, can be met only by clear and convincing testimony as to the manner of their occurrence. Wilson, supra.

3. As a general rule, this heightened burden of proof is difficult for the state to meet. See, Wilson, supra; People v. Smith, 197 Ill. App. 3d 226, 554 N.E. 2d 263 (1989). However, in People v. Richardson, supra, the Supreme Court found that the state established by clear and convincing evidence that the defendant’s statement was not the result of his injury while in police custody. Richardson, 234 Ill. 2d at 258.

4. Physically Coerced Confession and Harmless Error. Use of a defendant’s physically coerced confession as substantive evidence of his guilt is never harmless error. People v. Wrice, 2012 IL 111860 P.84, 962 N.E. 2d 934 (2012).

E. Other Factors under the Totality of the Circumstances Test: Illustrative Cases1. Promises of Rewards or Leniency. Where promises or suggestions of leniency have

been made, the confession is not necessarily inadmissible. Mere exhortations to tell the truth or to make a statement do not, without more, render a subsequent confession inadmissible. People v. Johnson, 285 Ill. App. 3d 802, 808,674 N.E. 2d 844, citing People v. Veal, 149 Ill. App. 3d, 619, 623, 500 N.E. 2d 1014 (1986). See also, People v. Wipfler, 68 Ill. 2d 158, 173, 368 N.E. 2d 870 (1977). To constitute a promise of leniency, the statement must be coupled with a suggestion of a specific benefit that will follow if defendant confesses. People v. Eckles, 128 Ill. App. 3d 276, 278, 470 N.E. 2d 623 (1984) (a statement by the police officer to the defendant that he would inform the State’s Attorney and the court of defendant’s cooperation is not such a promise.).

2. Deceit, Trickery, or Fraud. Deception does not invalidate a confession as a matter of law. This circumstance, while relevant, is but one factor to consider when making a determination of voluntariness. People v. Martin, 102 Ill. 2d 412, 427, citing Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969). In Martin, a statement by an Assistant State’s Attorney falsely informing the defendant that another had identified him as the trigger man did not invalidate the statement. 102 Ill. 2d at 427-428. See, also People v. Minniti, 373 Ill. App. 3d 55, 69-70, 867 N.E. 2d 1237 (2007) (police officer’s false statements to a juvenile defendant did not render

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the defendant’s confession involuntary). However, misstatements by the police that they recovered the defendant’s fingerprints rendered the statement involuntary. People v. Barton, 122 Ill. App. 3d 1079, 466 N.E. 2d 228 (1984). As a practical matter, the courts generally dislike the use of deception during questioning of a suspect, especially if the suspect is a juvenile or suffers from some mental deficiency or incapacity.

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