MOTIONS TO QUASH ARREST & SUPPRESS EVIDENCE
BURDEN:
The initial burden of proof is always on the defendant in a motion to quash. People v. Bobiek, 271 Ill. App. 3d 239, 241; 207 Ill. Dec. 704; 648 N.E.2d 160 (1st Dist 1995).
HOW TO SHIFT THE BURDEN: (Seizure/Search) (Not visibly breaking any laws or doing anything unusual) (No Warrant) (Fruit of the Poisonous Tree) (Jurisdiction)
All warrantless searches and seizures are deemed unreasonable per se unless it comes within a specific well delineated exception to the warrant requirement. People v. Drake, 288 Ill. App. 3d 963, 967; 683 N.E.2d 1215; Il. App. LEXIS 416; 225 Ill. Dec. 552 (2nd Dist 1997). Once the defendant demonstrates that he was arrested or searched without a warrant and was not violating any laws or doing anything unusual the burden shifts to the state to justify the warrantless search or seizure. See Id. See also People v. Kowalski, 954 N.E.2d 442, 444; 2011 Ill. App. LEXIS 786; 352 Ill. Dec. 582 (2nd Dist 2011).
SAMPLE QUESTIONS FOR SHIFTING THE BURDEN
Please state your name for the record. (JOHN SMITH)
Turning your attention to the afternoon of March 19, 2016 were you driving a vehicle at that time? (Yes, I was)
Did you come into contact with an officer from the Chicago Police Department at that time? (Yes, I did)
Describe how you came into contact with a Chicago police officer? (A member of the Chicago Police Department pulled up behind me and activated his emergency lights)
After the officer activated his emergency lights what did you do? (I stopped)
Prior to the officer activating his emergency lights did you visibly break any laws or commit any traffic infractions? (No, I did not visibly break any laws or commit any traffic infractions)
After the officer activated his emergency lights and you pulled over did you feel free to leave at that time? (No, I did not feel free to leave)
To your knowledge did the officer have a warrant to arrest you? (The officer did not have a warrant to arrest me)
To your knowledge did the officer have a warrant to search your vehicle? (No, he did not have a warrant to search my vehicle)
After the officer effectuated this warrantless seizure what did he do? (He asked me for my driver’s license)
Were you able to produce a valid driver’s license? (No, and at that time he discovered my driver’s license was revoked)
What did the officer do after he discovered your license was revoked (He handcuffed me and placed me under arrest)
Did this warrantless seizure & arrest take place in Cook County Illinois? (Yes, it took place in Cook County)
CASES IN WHICH THE OFFICER IS CALLED FIRST:
We cannot lead unless the Court determines the witness to be hostile or unwilling (Rule 238(b)).
BURDEN SHIFTING ISSUES
A denial of a motion to quash constitutes reversible error where the state fails to present additional evidence after the defendant has shifted the burden. People v. Cassell, 101 Ill. App. 2d 279, 284-285; 243 N.E.2d 363 (1st Dist. 1968). People v. Culpepper, 254 Ill. App. 3d 215, 222; 625 N.E.2d 868 (4th Dist 1993). A conclusion that a defendant has made a prima facie case is implicit in a trial court’s denial of the state’s motion for a directed finding. Prima facie evidence is evidence sufficient to establish a fact and will remain sufficient if left un-rebutted. People v. Guthrie, 85 Ill. App. 3d 831, 835; 407 N.E.2d 593 (1st Dist 1980).
ROAD BLOCK CASES: Factors to be considered in establishing the validity of a road block are: (1) the absence of unfettered discretion on the part of individual officers; (2) the presence of procedural guidelines; (3) a decision made by supervisory personnel to establish the roadblock; (4) the selection of the site by supervisory personnel; (5) the systematic stopping of vehicles; (6) sufficient showing of official authority; and (7) advance publicity. People v. Bartley, 109 Ill. 2d 273, 289-293; 486 N.E.2d 880; Ill. LEXIS 322; 93Ill. Dec. 347 (1985); People v. Scott, 277 Ill. App. 3d 579; 660 N.E.2d 555; Ill. App. LEXIS 14; 214 Ill. Dec. 110 (3rd Dist 1996).
DRIVING TOO SLOW: “No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation of his vehicle or in compliance with the law.” 625 ILCS 5/11-606(a)
VEHICLE SEARCHES BASED ON THE ODOR OF CANNABIS: Is supported by the automobile exception to the warrant requirement so long as the detection was not based on an unfounded assumption. The officer must have “skill and knowledge” in identifying the odor derived from “experience and training.” People v. Stout, 106 Ill. 2d 77,87; 477 N.E. 2d 498; Ill. LEXIS 205; 87 Ill. Dec. 521 (1985).
INVENTORY SEARCHES: An inventory search is a judicially created exception to the warrant requirement of the fourth amendment. People v. Hundley, 156 Ill. 2d 135, 138; 619 N.E.2d 744 Ill. LEXIS 68; 189 Ill. Dec. 43 (1993). Three requirements must be satisfied for a valid warrantless inventory search of a vehicle: (1) the original impoundment of the vehicle must be lawful; (2) the purpose of the inventory search must be to protect the owner’s property and to protect the police from claims of lost, stolen, or vandalized property and to guard the police from danger; and (3) the inventory search must be conducted in good faith pursuant to reasonable standardized police procedures and not as a pretext for an investigatory search. Id.
CONSENT SEARCHES: Under the Fourth Amendment a consent to search is not valid unless it is voluntary. Ohio v. Robinette, 519 U.S. 33, 40; 136 L. Ed. 2d 347, 355; 117 S. Ct. 417, 421 (1996). A defendant’s consent to search is not voluntary if made following an officer’s threat that the search is a foregone conclusion. People v. Green, 358 Ill. App. 3d 456, 463; 832 N.E.2d 465; Ill. App. LEXIS 682; 295 Ill. Dec. 314 (2nd Dist 2005) See also People v. Kratovil, 351 Ill. App. 3f 1023, 1031; 815 N.E. 2d 78; 286 Ill. Dec. 868 (2nd Dist 2004). Consent is not valid unless it is freely given without duress or coercion. People v. LaPoint, 353 Ill. App. 3d 328, 332; 818 N.E.2d 865; Ill. App. LEXIS 1292; 288 Ill. Dec. 930 (3rd Dist 2004)
The defendant, John Smith, testified credibly that the arresting officer, Officer Morin, advised him, prior to searching his vehicle, that she was going to conduct the search “regardless … of anything else.” (See transcript P. 11 lines 19-23; P. 17 lines 18-20 attached hereto as defense Exhibit 1). Mr. Smith’s foregoing testimony was not rebutted, impeached, or refuted. (See transcript).
- THE TERRY STOP (REASONABLE SUSPICION STANDARD)SAMPLE MOTION TO QUASH ARREST & SUPPRESS EVIDENCENOW COMES the Defendant, JOHN SMITH, by and through his attorneys, THE LAW OFFICES OF JASON B. STEVENS P.C. and moves this Honorable Court pursuant to the Fourth Amendment to the United States Constitution, Article I Section 6 of the Illinois Constitution and 725 ILCS 5/114-12 to quash his arrest and suppress the evidence illegally obtained on August 8, 2012 and in support thereof states as follows:
1. On August 10, 2010, at approximately 12:08pm the defendant, John Smith, arrived at a five-story multi-unit apartment complex at 5225 N. Pine Grove Ave in Chicago. Upon his arrival Mr. Smith was approached by Officer Xiques of the Chicago Police Department. Officer Xiques lifted his shirt and exposed his law enforcement badge to Mr. Smith. Officer Xiques then placed his hands on Mr. Smith, turned him towards the apartment complex and began to frisk him. Officer Xiques pulled a band-aid box from Mr. Smith’ pants. Officer Xiques opened the box and noted that it contained possible Methamphetamine. Officer Xiques than placed Mr. Smith into custody. Officer Xiques did not have a warrant to stop or frisk Mr. Smith. Mr. Smith was not visibly violating any laws at the time he was stopped and frisked, nor did Mr. Smith consent to be frisked or searched.
2. In the case at bar, Mr. Smith was unlawfully seized when Officer Xiques identified himself as a police officer and proceeded to physically turn Mr. Smith in the direction of the apartment building as Officer Xiques did not have reasonable suspicion that Mr. Smith was committing or was about to commit a crime. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). However, assuming arguendo that Officer Xiques’ conduct constituted a lawful seizure, his subsequent pat-down of Mr. Smith constituted an illegal Terry frisk as Mr. Smith did not partake in any threatening movements or menacing gestures that would have given the officer a reason to fear for his safety.
3. The Fourth Amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend IV. Whether an investigatory stop is valid is a separate question from whether a pat down search for weapons is valid. People v. Flowers, 179 Ill. 2d 257, 263; 688 N.E.2d 626; Ill. LEXIS 472; 227 Ill. Dec. 933 (1997). The fact that an officer has reason to stop a person does not automatically justify the further intrusion of a search for weapons. Id. In order to validly conduct a weapons frisk pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) and Section 725 ILCS 5/108-1.01 of the Illinois Code of Criminal Procedure, an officer must have reason to believe that the individual he is investigating is armed and poses a danger to himself or others. Id. The validity of a frisk conducted during an investigatory stop is assessed by an objective standard and the officer conducting the frisk must be able to point to specific, articulable facts that reasonably warrant the intrusion. Id. at 264.
4. The United States Supreme Court has repeatedly emphasized that the “Terry Frisk” exception to the probable cause requirement must be narrowly applied. See Florida v. Royer, 460 U.S. 491, 499, 75 L. Ed. 2d 229, 237, 103 S. Ct. 1319, 1325 (1983); Ybarra v. Illinois, 44 U.S. 85, 93, 62 L. Ed. 2d 238, 247, 100 S. Ct. 338, 343 (1979); Dunway v. Newyork, 442 U.S. 200, 210 60 L. Ed. 2d 824, 834, 99 S. Ct. 2248, 2255 (1979). The Supreme Court’s reason for narrowly circumscribing the power of the police to conduct these types of searches was articulated in Terry v. Ohio where the Court noted that even a limited search of the outer clothing for weapons constitutes a severe intrusion on personal liberty and can be a humiliating experience. See Terry v. Ohio 392 U.S. 1, 24-25 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The limited exception recognized by the Court in Terry does not permit police officers to engage in the practice of routinely frisking individuals. People v. Flowers, 179 Ill. 2d 257, 267 (1997).
5. Assuming arguendo that the Terry frisk was permissible, Officer Xiques exceeded the scope of a permissible Terry frisk when he looked inside the band-aid box without consent as he had no reason to believe that the box contained a weapon. In a case applying this rule, Officer Terry, received a broadcast that two individuals were leaving a suspected crime scene. People v. Rivera, 272 Ill. App. 3d 502, 650 N.E.2d 1084, 1086 (1st Dist. 1995). Officer Terry arrived near the scene, and observed two individuals matching the description relayed in the broadcast. Id. Officer Terry stopped the individuals, and noticed that their jackets were zipped up. Id. Officer Terry asked the individuals to unzip their coats, and they complied. Id. Officer Terry observed bags protruding from the suspects’ waistbands. Id. Officer Terry removed the bags, and believed the contents to be cocaine.Id. The court ruled that the evidence was inadmissible. Id at 1089. The court reasoned that requiring the suspects to unzip their jackets exceeded the scope of a legal search. Id.
Mr. Smith was seized and subsequently searched in violation of his Fourth Amendment rights and all evidence obtained as a result of the foregoing Fourth Amendment violations should be suppressed as fruits of the poisonous tree.
WHEREFORE, Defendant respectfully requests this Honorable Court to enter an Order quashing his arrest and suppressing all evidence illegally obtained on August 8, 2012 as well as any other relief that this Court deems just and appropriate.
Respectfully Submitted,
______________________________
2. WHEN OFFICERS ENTER A DEFENDANT’S HOME WITH NO WARRANT ONLY EXIGENT CIRCUMSTANCES CAN SAVE THE STATE’S CASE
SAMPLE MOTION TO QUASH ARREST & SUPPRESS EVIDENCE
NOW COMES the Defendant, JOHN SMITH, by and through his attorneys, The Law Office of Jason B. Stevens P.C., and moves this Honorable Court pursuant to the Fourth Amendment and Fourteenth Amendment to the United States Constitution, Article I Section 6 of the Illinois Constitution, and 725 ILCS 5/114-12 of the Illinois Criminal Code to quash his arrest and suppress the evidence illegally obtained on June 1, 2013 and in support thereof states as follows:
1. The Defendant, John Smith, resides at 300 East Street, North Barrington Illinois 60010. On June 1, 2013 at approximately 3:41am officers from the Lake County Sheriff’s police entered Mr. Smith’s home. Prior to entering Mr. Smith’s home, the officers did not obtain a search warrant, nor did Mr. Smith consent to the warrantless entry. The officers involved do not allege that the intrusion was warranted by exigent circumstances. Subsequent to the warrantless entry the officers encountered Mr. Smith inside his home and made observations that led them to believe that Mr. Smith had consumed alcohol and was under 21 years old. Mr. Smith was issued a citation for underage drinking. All evidence that the officers obtained supporting the underage drinking charge against Mr. Smith should be suppressed as such evidence were the “fruits” of the officers’ illegal warrantless entry.
2. The Fourth Amendment to the United States Constitution guarantees, “the right of people to be secure in their houses … against unreasonable searches … and [that] no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., IV Amend. The chief evil that the Fourth Amendment is intended to protect is an intrusion into a citizen’s private home. People v. Hassan, 253 Ill. App. 3d 558, 567; 624 N.E.2d 1330; App. LEXIS 1376; 191 Ill. Dec. 952 (1st Dist. 1993); People v. Johnson, 368 Ill. App. 3d 1073, 1083; 859 N.E.2d 153; Ill. App. LEXIS 1050; 307 Ill. Dec. 153 (2nd Dist 2006) citing Payton v. New York, 445 U.S. 573, 585; 63 L. Ed.2d 639, 650; 100 S. Ct. 1371, 1379-80 (1980). Pursuant to the exclusionary rule, Courts are precluded from admitting evidence that is gathered in violation of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 649; 6 L. Ed. 2d 1081, 1086; 81 S. Ct. 1684, 1688 (1961).
3. The State bears the burden of proving that exigent circumstances justified the warrantless entry. See People v. Wimbley, 314 Ill. App. 3d 18, 24; 731 N.E. 2d 290; Ill. App. LEXIS 417; 246 Ill. Dec. 762 (1st Dist. 2000). No amount of probable cause can justify a warrantless search of an individual’s home when exigent circumstances are lacking. People v. Hasson, 253 Ill. App. 3d 558, 567; 624 N.E. 2d 1330; Ill. App. LEXIS 1376; 191 Ill. Dec. 952 (1st Dist 1993).
4. The Illinois Supreme Court has noted that exigent circumstances exist when there is a compelling need for official action and no time to secure a warrant. People v. Abney, 81 Ill. 2d 159, 173; 407 N.E. 2d 543; Ill. LEXIS 349; 41 Ill. Dec. 45 (1980). Exigent circumstances do not exist where there is no emergency that requires a quick response. See People v. Hassan, 253 Ill. App. 3d 558, 571; 624 N.E. 2d 1330; Ill. App. LEXIS 1376; 191 Ill. Dec. 952 (1st Dist. 1993). The Illinois Supreme Court has further noted that even when easily disposable narcotics are the subject of the investigation, such circumstances do not give rise to exigent circumstances. People v. Ouellette, 78 Ill. 2d 511, 516; 36 Ill. Dec. 666; 401 N.E. 2d 507 (1979).
5. In the case at bar, the Lake County Sheriff’s police violated Mr. Smith’s Fourth Amendment rights in that they entered his home without a warrant, consent or exigent circumstances. The officers have not alleged a viable Fourth Amendment exception to justify their conduct. The officers’ observations of Mr. Smith as well as any chemical test that Mr. Smith submitted to or refused to submit to should be suppressed as fruits of the poisonous tree.
ACCORDINGLY, Defendant respectfully requests this Honorable Court to enter an order suppressing all evidence illegally obtained on June 1, 2013 as well as any other relief that this Court deems just and appropriate.
ARRESTS FOR PETTY OFFENSES: An arrest for a minor, fine-only offense is not unreasonable under the fourth amendment pursuant to Atwater and the limited lockstep doctrine. People v. Fitzpatrick, 986 N.E.2d 1163; 369 Ill. Dec. 527. How do we reconcile that opinion with the United States Supreme Court’s Opinion in Rodriguez v. United States, 135 S. Ct. 1609; 191 L. Ed. 492; U.S. LEXIS 2807; 83 U.S.L.W.4241 (2015) where defendant was pulled over for driving on the shoulder. The Court suppressed methamphetamine found on the grounds that the defendant was detained too long while the police waited for a K-9 to conduct a dog sniff. Id. at 1616. If the U.S. Supreme Court authorizes arrests for petty offenses then driving on the shoulder would have been grounds to detain the defendant for hours pursuant to a full blown arrest. Why would the Court suppress evidence because of a 7-8 minute delay while waiting for the K-9 unit.
