Illinois Criminal Law update, June 2001

Recent Criminal Law Case Updates



[January 12, 2000]


The State of Illinois asked the U.S.Supreme Court to announce a "bright-line rule" authorizing the temporary detention of anyone who flees at the mere sight of a police officer. Respondent countered by asking the Court to adopt the opposite per se rule--that the fact that a person flees upon seeing the police can never, by itself, be sufficient to justify a temporary investigative stop of the kind authorized by Terry v. Ohio, 392 U. S. 1 (1968).

The Court wisely endorses neither per se rule. Instead, it rejects the proposition that "flight is ... necessarily indicative of ongoing criminal activity," adhering to the view that "[t]he concept of reasonable suspicion . . . is not readily, or even usefully, reduced to a neat set of legal rules," but must be determined by looking to "the totality of the circumstances--the whole picture." United States v. Sokolow, 490 U. S. 1, 7-8 (1989)

The United States Supreme Court held 5-4 (opinion by Rhenquist; dissent by Stevens) that reasonable suspicion justifying a frisk under Terry v. Ohio, 392 US 1 (1968) may arise when a person flees at the sight of a police officer. Terry held an officer may conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. Wardlow was standing in a high crime area holding an opaque bag in Chicago. After looking in the direction of two police officers, he fled and ran into an alley where he was cornered. The Court did not adopt a per se rule that flight always leads to reasonable suspicion, but it found that under the circumstances, the officers did not violate the rule set forth in Terry. The dissent agreed that a per se rule stating either flight did or did not arise to the level of reasonable suspicion should not be adopted, but disagreed that the circumstances of the case rose to the level of reasonable suspicion. Decided on 1/12/00 Oral Arguments on 11/1/99 Certiorari Granted on 5/4/99.

Are you persuaded that the mere fact that someone standing on a sidewalk looked in the direction of a passing car before starting to run is sufficient to justify a forcible stop and frisk?

Respondent Wardlow fled upon seeing a caravan of police vehicles converge on an area of Chicago known for heavy narcotics trafficking. When Officers Nolan and Harvey caught up with him on the street, Nolan stopped him and conducted a protective pat-down search for weapons because in his experience there were usually weapons in the vicinity of narcotics transactions. Discovering a handgun, the officers arrested Wardlow. The Illinois trial court denied his motion to suppress, finding the gun was recovered during a lawful stop and frisk. He was convicted of unlawful use of a weapon by a felon. In reversing, the State Appellate Court found that Nolan did not have reasonable suspicion to make the stop under Terry v. Ohio, 392 U. S. 1. The State Supreme Court affirmed, determining that sudden flight in a high crime area does not create a reasonable suspicion justifying a Terry stop because flight may simply be an exercise of the right to "go on one's way," see Florida v. Royer, 460 U. S. 491.

Held: The officers' actions did not violate the Fourth Amendment. This case, involving a brief encounter between a citizen and a police officer on a public street, is governed by Terry, under which an officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop.

While "reasonable suspicion" is a less demanding standard than probable cause, there must be at least a minimal level of objective justification for the stop. An individual's presence in a "high crime area," standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity, but a location's characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation, Adams v. Williams, 407 U. S. 143, 144, 147-148. In this case, moreover, it was also Wardlow's unprovoked flight that aroused the officers' suspicion. Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion, e.g., United States v. Brignoni-Ponce, 422 U. S. 873, 885, and headlong flight is the consummate act of evasion. In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences from suspicious behavior, and this Court cannot reasonably demand scientific certainty when none exists.

Thus, the reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior. See United States v. Cortez, 449 U. S. 411, 418. Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further. Such a holding is consistent with the decision in Florida v. Royer, supra, at 498, that an individual, when approached, has a right to ignore the police and go about his business. Unprovoked flight is the exact opposite of "going about one's business." While flight is not necessarily indicative of ongoing criminal activity, Terry recognized that officers can detain individuals to resolve ambiguities in their conduct, 392 U. S., at 30, and thus accepts the risk that officers may stop innocent people. If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way. But in this case the officers found that Wardlow possessed a handgun and arrested him for violating a state law. The propriety of that arrest is not before the Court. Pp. 3-6. 183 Ill. 2d 306, 701 N. E. 2d 484, reversed and remanded. Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed an an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined.

ANTI-CRIME LAW STRUCK DOWN BY ILLINOIS HIGH COURT: The Illinois Supreme Court invalidated a state statute called the Safe Neighborhoods law. At its core this law made possession of a concealed weapon a Class 4 felony, established tougher penalties for people caught within 1,000 feet of a school and made gunrunning a felony. This "anti-crime" law also increased sentences for certain gang-related crimes, as well as for offenses such as Aggravated driving under the influence and defacing the identification marks on guns. The ruling struck down provisions to treat gun running as a felony and imprison juveniles convicted of first-degree murder. People v. Cervantes, No. 87229 (12/2/99)

The court ruled that the law violated the Illinois Constitution's single-subject rule by logrolling unrelated legislative items into one bill. The purpose of the rule is to prevent lawmakers from attaching unpopular legislation items to unrelated proposals with popular support.

The 1994 amendment by P.A. 88-680 was effective January 1, 1995, and will affect thousands of felony sentences. Chicago Police Supt. Terry Hillard and Cook County State's Attorney Richard Devine said that the court's action could put thousands of inmates back on the streets. Devine said at least 20,000 Illinois inmates' sentences are affected by the law being ruled unconstitutional, and he estimated thousands might be eligible for release.

State law prohibits transporting a firearm in a vehicle unless it is "broken down in a nonfunctioning state or not immediately accessible." Specifically, the unlawful-use-of-a-weapon law prohibits firearms from being carried within easy reach in a vehicle or concealed on one's person. But it has dozens of exceptions. It does not apply to hunters while hunting, licensed security guards, military personnel and law enforcement officials performing their duties or on the way to work, or to people at target ranges. In addition, nearly all Illinois gun owners are required to hold a firearm owner's identification card. The main exceptions are law enforcement officials. Numerous categories of people are barred from owning guns, including convicted felons, drug addicts, the mentally retarded, undocumented immigrants and anyone convicted of battery, assault, domestic assault or violating an order of protection in the last five years.

Governor George Ryan announced a special session of the General Assembly to redraft the law. Governor Ryan is urging state lawmakers to re-enact the Safe Neighborhoods Act in its entirety. Speaking at a special session of the legislature called to reconsider the measure, which was declared unconstitutional by the Illinois Supreme Court, Ryan noted that the court's ruling has "nothing to do with the substance of the laws in this critical package." Ryan addressed one of the more controversial provisions, vowing to veto any bill that doesn't raise the illegal possession of a firearm from a misdemeanor to a felony. "We had on the books a good law for almost five years," Ryan said. "It's reduced crime. It's reduced gunrunning. I want to make sure we put that law back on the books."

But state Senate President Pate Phillip and several gun groups are against imposing the harsh penalty on first-time offenders. James "Pate" Phillip (R-WoodDale) has vowed to oppose re -approval of a key provision in the package that elevated the crime of unlawful possession-use of a weapon from a misdemeanor to a felony. Phillip, siding with the gun lobby, said the provision makes it hard for hunters and other gun owners to transport weapons legally ."The only argument (over the current proposal) is a very minute point for first offenders," Philip said Tuesday. "These aren't criminals, these aren't gangbangers. This is the first time that they've had a crime. Once you're convicted of a felony, it's on your record. You go try to get a loan, you're not going to get a loan. You try to get a job, you're not going to get a job." The problem with the stricken Safe Neighborhoods Act, Philip's spokeswoman Patty Schuh said, is that it makes no distinction between habitual criminals who have illegal guns and hunters or target shooters who have a firearm identification card but improperly transport firearms in their cars. "

Meanwhile, any new law will apply only to future cases. Thousands of convicted felons will re-petition the court to be re-sentenced as misdemeanors (see 725 ILCS 5/122 and 735 ILCS 5/2-1401.) As to individuals sentenced under the Act, post-conviction and/or relief-from-judgement petitions will be filed, seeking a new sentencing hearing--arguing that the the applicable statute of limitations did not begin to run until the cause of action could reasonably be discovered, ie, when the Illinois Supreme Court decided Cervantes, 12-02-99.)

As to individuals in custody for offenses created by the Act, state habeas corpus should be filed, seeking their immediate release (see 735 ILCS Sec. 5/10.101). Defendants in pending cases will be sentenced under the law existing prior to the 1995 amendments-- as misdemeanors, while others will move to have their cases dismissed. Because of the proscription against ex post facto laws, a defendant is entitled to elect to be sentenced under either the law in effect at the time of the offenses or that in effect at the time of sentencing. ( People v. Hollins, 51 Ill. 2nd 68, 280 N. E. 2nd 710 (1972)


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