CourtSmart - LeoTraining

VOL. 50: 218
CourtSmart
CONTENTS
NOVEMBER 2014
VOLUME 50
Editors DALE ANDERSON and ANTHONY POLSE
ARTICLES
BIG PICTURE – THE BIGGEST LEGAL PROBLEMS FACED BY LAW ENFORCEMENT –
AND WHAT THIS PUBLICATION IS DOING TO (TRY TO) HELP
Page 219
CHECKPOINTS – DO DRIVERS HAVE TO GO THROUGH THEM? AND WHAT DO
YOU SAY WHEN THEY ASK YOU QUESTIONS?
Page 220
YOU ARE ALWAYS BEING VIDEO TAPED
Page 227
TAKING STATEMENTS FROM HOMICIDE SUSPECTS -- VIDEOTAPING
Page 229
DOMESTICS AND MURDER – REASONABLE SUSPICION TO STOP AND DETAIN
Page 232
EXTENDING TRAFFIC STOPS BASED ON THE TERRORIST WATCH LIST
Page 233
REASONABLE SUSPICION TO STOP AND FRISK
Page 235
WHEN SHOULD OFFICERS GET A WARRANT AFTER A DUI – ACCIDENT?
Page 238
PHOTO LINEUPS – THE NEW STATUTORY REQUIREMENTS
Page 240
BRIEFING QUESTIONS – AND ANSWERS -- FOR THE OCTOBER EDITION OF COURTSMART Page 241
BRIEFING QUESTIONS FOR THE NOVEMBER EDITION OF COURTSMART
Page 243
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VOL. 50: 219
BIG PICTURE – THE BIGGEST LEGAL PROBLEMS FACED BY LAW ENFORCEMENT -- AND WHAT
THIS PUBLICATION IS DOING TO (TRY TO) HELP
First off, the same issues are springing up over and over -- and over in the cases.
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Officers are being video and audio taped. If you don’t know what you are doing legally,
you will find yourself on YouTube.
Officers can only use “reasonable” force to do their job. Your definition of “reasonable”
and the courts’ definition – and a jury’s definition -- may be totally different. The biggest
(and most expensive) problem here is the use of “intermediate” force (batons, tasers
and pepper spray) by law enforcement. Every officer must know the case law on this.
Murderers are getting “off” because officers do not know the legal issues related to
obtaining statements.
We will continue to put a spotlight on these issues by explaining the case law related to
them and showing the videos that make the mistakes explicit.
The legal mistakes made by officers in these cases are not depicted to criticize the officers –
but so that officers in the future will not make the same mistakes.
We have added cases which relate to relatively obvious constitutional issues and answers,
but where there will always be discussion and possibly some confusion by some officers.
Finally, we discussed briefly the requirements of the “new” photographic line-up statute.
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DUI Accidents – Officers must prove there was an exigency to avoid getting a
warrant.
Reasonable Suspicion – How much suspicion do officers need to stop suspects on
foot -- and to frisk them.
The “new” photo line-up statute – what are the requirements? (not a constitutional
issue, but still important to know).
VOL. 50: 220
CHECKPOINTS – DO DRIVERS HAVE TO GO THROUGH THEM? AND WHAT DO YOU SAY WHEN
THEY ASK YOU QUESTIONS?
First, a big picture context for these questions –
There are very few exceptions to the requirement that in order to “seize” someone,
there must be reasonable suspicion. In other words, officers must always (almost) have
to have at least reasonable suspicion to seize anyone. That is a 99% rule.
But there are exceptions to all rules.
Here are some exceptions to reasonable suspicion requirement:
 Community Caretaking
 Emergency
 Passengers
 (Lawfully constituted and executed) Checkpoints
The case law supporting the above (relating to checkpoints) is on pages 229-232 in
Volume I of your Peace Officers Bible.
In this article we want to discuss checkpoints and the recent case of People v Timmsen.
The issue of checkpoints first arose at the United States Supreme Court in a case called
Delaware v Prouse, 440 US 648 (1979). In that case, the Supreme Court held that
officers may not stop cars simply to determine if the driver has a license and registration
for the car.
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The Court speculated, however, that it might be constitutional to stop cars at a duly
constructed roadblock. This is what we in the legal profession call “dictum” in an
opinion, as it really has nothing to do with the ruling, or holding, in the case.
Based on this dictum, many departments began to set up checkpoints. The substitution
for reasonable suspicion requirement was that the departments followed criteria
protecting the rights of drivers on the road.
The first time checkpoints were challenged was in Michigan State Police v Sitz, 496 US
444 (1990). The Supreme Court there ruled that checkpoints were constitutional as long
as police followed proper administrative procedures in setting them up and executing
them.
Later, the Supreme Court in Indianapolis v Edmond, 121 S Ct 455 (2000) ruled that
checkpoints may not be set up solely to determine if the vehicle contains drugs – or
solely for the purpose of catching lawbreakers. In the Edmonds case, after the car was
stopped and detained, an officer walked a drug dog around the vehicle.
Illinois set up certain criteria for courts, and officers, to consider:
 There is an absence of unlimited discretion on the part of individual officers.
 There are procedural guidelines.
 The decision to establish the roadblock is made by supervisory/policy-level
personnel.
 The selection of the site is made by supervisory/policy-level personnel.
 The showing of official authority at the site is apparent.
 There is advanced publicity.
 The method to stop vehicles is pre-established, systematic, and is not a safety risk.
Illinois actually had a roadblock / checkpoint case that went to the United States
Supreme Court -- Illinois v Lidster, 124 S Ct 885 (2004) In that case, officers set up a
checkpoint at an intersection where a fatal hit-and-run accident had occurred. The
roadblock was set up at the same time of day when the hit-and-run took place and
leaflets were distributed to the drivers of the cars in hopes of getting leads on the hitand-run driver. During the stop, officers talked to Lidster, a driver, who was drunk and
nearly ran over an officer at the scene.
The United States Supreme Court ruled that this very short stop to hand out leaflets to
seek help in locating the hit-an-run driver was reasonable. Therefore the evidence
against Lidster was admissible.
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Illinois has a lot of cases related to checkpoints. All of them are in the Peace Officers
Bible. But since many do not have this, we will re-state most of the cases and their
outcomes below.
The following are some Illinois cases where courts have ruled that the check point and
stop were constitutional.
People v Conway, 482 NE2d 437 (1985)
Law enforcement administrators set up a “driver’s license survey” where officers
stopped every vehicle to determine whether the driver had a valid license. If the officers
thought the driver was drinking, the driver was checked more closely. Conway got
caught in the checkpoint.
The Illinois Court of Appeals ruled that the roadblock was constitutional. Therefore the
evidence against Conway was admissible.
People v Lust, 456 NE2d 980 (1983)
Officers were required by administrators to set up periodic safety checks for trucks.
Officers were required to stop every truck. One driver did not have a license.
The Illinois Court of Appeals ruled that the stops were reasonable based upon the
criteria above. Therefore the conviction was upheld.
People v Taylor, 630 NE2d 1331 (1994)
A city implemented a roadblock to check for city vehicle registration stickers. Taylor was
stopped at the roadblock and did not have a license, because it had been suspended.
The police then arrested Taylor.
The Court upheld the roadblock because it complied with the criteria above and the
arrest was therefore constitutional.
People v Long, 124 Ill. App.3d 1030 (1984)
Long stopped about 100 yards from the checkpoint. An officer went up and asked Long
to produce a license.
The Illinois Court of Appeals ruled that Long was within the realm of the checkpoint and
therefore was subject to detention.
People v Bruni, 940 NE2d 84 (2010)
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Bruni was stopped at a sobriety checkpoint. The officer noticed a faint odor of alcohol
coming from the passenger compartment and that Bruni’s eyes were glossy. Bruni
admitted to having one beer. The officer requested that Bruni perform some sobriety
tests. The time between being stopped and ordered out his vehicle was about five
minutes. When Bruni failed the tests, he was arrested.
The Illinois Court of Appeals ruled that the short time between the stop and the officer’s
getting Brunei out of the car did not create an unconstitutional seizure. Therefore the
evidence was admissible.
The following are Illinois cases where the courts ruled that the checkpoint or stop was
unconstitutional.
People v Scott, 660 NE2d 555 (1996)
Officers set up a proper sobriety checkpoint which gave notice and allowed residents to
exit before the checkpoint. Scott exited before the checkpoint and an officer stopped
him and required him to go through the checkpoint. Scott was then charged with DUI
and driving while his license was revoked.
The Illinois Court of Appeals ruled that the officer did not have reasonable suspicion to
stop Scott for avoiding the checkpoint, and that the officer was given too much
discretion in determining who should go through the checkpoint. Therefore the arrest
was unconstitutional.
The officer may well have had the power to investigate Scott at the time of the
original stop. The case is not clear, but the real problem here appears to be that
there was no way to know if the driver was a resident without first stopping
them. It’s sort of a “Catch 22."
People v Fullwiley, 710 NE2d 491 (1999)
A sergeant told two officers to set up a roadblock safety check and to stop every fifth
vehicle traveling in the northbound lanes at a certain intersection. The officers were to
use their marked vehicles, be in uniform, and check for license, insurance and
registration. The officers stopped a vehicle with four occupants. The driver did not have
a license. The officer then asked the occupants to step out of the car one at a time. The
officer patted down a passenger, Fullwiley, and felt something hard. Thinking it was a
knife, the officer pulled it out and discovered a lighter and a baggie of white rocks.
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The Illinois Court of Appeals ruled that the roadblock was unconstitutional. Therefore
the evidence was suppressed.
One reason for the holding that the roadblock was unconstitutional was that the
court felt that a sergeant is not a “politically accountable” or “policy making
level” official.
People v Adams, 687 NE2d 536 (1997)
Officers were conducting a sticker check by order of their sergeant. The process was to
stand at a certain corner where there was a stop sign. If a car didn’t have a city sticker, it
was pulled over to determine if the driver was a resident. Adams was pulled over. His
license was suspended.
The Illinois Court of Appeals ruled that the officers failed to prove that the
roadblock/checkpoint was “established by politically accountable or policy level
officials." Also, there was no evidence that the procedure was effective. Therefore the
evidence was suppressed.
This does not appear to be a “roadblock” type stop. The car is stopped only
because it is coming to a stop sign. Then the driver is seized only when he/she
doesn’t have a sticker. The question should have been: is that enough to justify
pulling someone over?
People v Ray, 764 NE2d 173 (2002)
Ray was driving on an interstate with Florida plates when he saw a sign on the side of
the road that said “Drug Enforcement Checkpoint About Half Mile." About 100 yards
further along, Ray saw a sign that said “Drug Dogs in Use Ahead."
Ray got off the highway at the next exit. There was no checkpoint on the highway, but
there was a checkpoint at the exit. The exit was rural and provided no services (gas,
food, etc.), so officers thought that anyone who exited must be trying to avoid the
checkpoint on the highway. As a result of the stop, police found 120 lbs of marijuana in
the car.
Seventy percent of non-local drivers who exited had some sort of violation; 60% had
drugs. Local drivers were stopped only to find out where they lived.
The Illinois Court of Appeals ruled that, just because people get off at an exit, it is not
reasonable suspicion to stop the people. Therefore the evidence was suppressed.
VOL. 50: 225
In the context of the above, here is the recent case of
People v Timmsen:
Facts
Officers set up a “roadside safety” check. The roadblock was set up on Highway 136.
At 1:15 a.m. Timmsen, whose license was suspended, saw the roadblock and made a U-turn at
a railroad crossing just before the roadblock. The crossing was the only place he could make
the U-turn on the four-lane road before coming to the roadblock. This crossing could not be
barricaded by police because it was used by police. An officer stopped Timmsen and arrested
him.
The trial court ruled that the stop was constitutional as there was reasonable suspicion.
Law
The Illinois Court of Appeals reversed, ruling that making a U-turn at a railroad crossing was not
reasonable suspicion to stop Timmsen. Therefore the arrest was unconstitutional.
Apparently, it is legal to make a U-turn at a railroad crossing.
There was a strong dissent -- this is a close case.
Training Tips
1. Many people / citizens do not know that checkpoints are constitutional if they are
properly constituted and executed. You must therefore be prepared to explain to
people whom you stop why you are stopping them – and the constitutional basis for the
stop. See this video (and many others like it).
http://www.youtube.com/watch?v=rcArwP6FfQc
2. Officers are being “baited” at these checkpoints. See this video (and many others like it).
http://www.youtube.com/watch?v=by3g2Mo-Obg
If you are ever asked by drivers at a checkpoint if they are being “detained” – the
answer is “Yes.”
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If you are asked if a person at a checkpoint (or during a traffic stop) is under arrest, you
should say “No, you are simply being briefly detained.”
If the driver asks under what authority he / she is being detained, briefly explain the
“United States Supreme Court” (and Illinois courts) have ruled that these stops are
constitutional. (Maybe be prepared to state the cases).
3. Normally, checkpoints administratively should include the checking of licenses.
Departments should make sure their legal advisors will support them in officers’
requests for license, registrations and insurance.
4. Another issue to discuss with your legal advisor -- normally during traffic stops, officers
have the power to get drivers (and passengers) out of the vehicle. We know of no cases
discussing this issue at checkpoints. Again, be sure to discuss this issue with your legal
advisor, so you can be confident that your legal advisor will back you if you have to get a
driver out of the car during a checkpoint – and your only theory is obstructing.
Obviously, if the driver is showing signs of intoxication, your discretion will be broader,
in our opinion, but if the driver gives you his license, and you observe no indications of
intoxication, you should probably hesitate to make getting out of the vehicle an issue.
VOL. 50: 227
YOU ARE ALWAYS BEING VIDEO TAPED
I am going to continue showing videos until I am sure that everyone involved in CourtSmart
knows that you can (and will) be video (and audio) taped in everything you do.
Know the law. Know what your powers are and the rights of citizens, including suspects. Do not
let your anger and adrenalin overpower your good judgment. See below.
By Sherrel Wheeler Stewart
“BIRMINGHAM, Ala., Oct 22 (Reuters) - An Alabama man who sued over being hit and kicked by
police after leading them on a high-speed chase will get $1,000 in a settlement with the city of
Birmingham, while his attorneys will take in $459,000, officials said Wednesday.
The incident gained public attention with the release of a 2008 video of police officers punching
and kicking Anthony Warren as he lay on the ground after leading them on a roughly 20-minute
high-speed chase.
Warren is serving a 20-year sentence for attempted murder stemming from his running over a
police officer during the chase, in which he also hit a school bus and a patrol car before crashing
and being ejected from his vehicle.
Under the terms of the settlement of Warren's 2009 federal suit, in which he accused five
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Birmingham police officers of excessive force, his attorneys will receive $100,000 for expenses
and $359,000 in fees, said Michael Choy, an attorney representing the officers on behalf of the
city.
The agreement was reached last month and approved on Tuesday by the Birmingham City
Council.
The city settled to avoid further litigation and the risk of a higher payout, Choy said.
Warren's attorneys, Wendy Brooks Crew, Alyson Hood Rains and Cameron Hogan, did not
immediately respond to messages seeking comment. (Editing by Jonathan Kaminsky and
Mohammad Zargham).”
http://www.huffingtonpost.com/2014/10/23/anthony-warren-police-beatingsettlement_n_6032206.html?cps=gravity
VOL. 50: 229
TAKING STATEMENTS FROM HOMICIDE SUSPECTS -- VIDEOTAPING
We hope that every officer in the CourtSmart program knows that the courts have a threetiered approach to interactions with “citizens” – including suspects.
Tier 1 is a consensual encounter.
Tier 2 is a Terry (or traffic) stop.
Tier 3 is an arrest or custody.
The important thing to remember related to this article is that you must have probable cause to
be in tier 3. And tier 3 can be very tricky. There can be 10-20 factors that put officers into tier 3
without their knowing it.
Also, generally, if an officer is in tier 3, the officer must Mirandize and must video tape the
interrogation if the officer is going to be questioning the suspect about a murder case.
Virtually every month, another murderer gets off because officers do not seem to understand
the constitutional and statutory requirements above.
People v Clayton
Facts
Officers took Clayton, a 17-year old girl, from her home to the station in the back of an
unmarked police vehicle late at night. She said she was handcuffed. The police testified that she
was not handcuffed.
Police later testified that Clayton was on a suspect’s list in the murder. The police testified that
she was just a witness.
Clayton was “interviewed” initially about the murder in an unlocked interview room for about
20 minutes. Police later had no idea what was said during this “interview” except that the crime
was not discussed. Notes of the interview had been destroyed.
About five hours later (at 3:55 a.m.) officers began a videotaped interrogation where Clayton
was first asked if she came to the station “voluntarily” and “of her own free will.” She
responded affirmatively.
She was given her Miranda warnings, and she waived her 5th Amendment rights.
She was then questioned and every word recorded.
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When the interrogation was completed, Clayton was taken to the lobby where she was picked
up by a family member.
The next day Clayton was formally arrested and taken to the police station where she was given
her Miranda rights again and she waived them and gave a statement. During a third
interrogation, she gave another statement.
Law
The Illinois Court of Appeals ruled that Clayton was subject to custodial interrogation during her
first / initial questioning. Therefore her 2nd and 3d statement were suppressed as the officers
failed to video tape the first interrogation (or give Miranda rights).
The trial court had ruled that Clayton was in custody, even though it found that Clayton had not
been handcuffed, that she said she came to the station voluntarily and she went home after the
second round of questioning.
The questioning was custodial in that four officers took the girl from her home, where she lived
with her parents, late at night. She was placed in a room for two hours before she was initially
questioned and she was held for a total of five hours, after being questioned the second time at
3:55 a.m.
Her youth was definitely a big factor in the court’s determination that she was in custody. Also
the fact that the state produced no evidence that she had experience with the criminal justice
system was a crucial factor in the determination that she was in custody.
The court found that it was irrelevant whether the officers considered Clayton a suspect -- or a
witness -- as that was a non-objective factor. The court also assumed Clayton was not
handcuffed when taken to the station.
The court determined that the officer was talking to / questioning her about the crime during
the first round of questioning in that the officer began the second round of questioning with
the Miranda warnings – indicating to the court that the police had found out some crimerelated information during the first round of questioning.
Finally, the court of appeals ruled that the state could not overcome the presumption of
inadmissibility in that the state never even tried to present evidence that the 2 nd and 3d
interrogations produced “voluntary” statements. The state tried to put the burden of proof on
Clayton to show that the statements were involuntary.
VOL. 50: 231
Training Tips
1. Never, never talk about the crime with a person in custody without giving Miranda
warnings and having probable cause. You cannot use warm-up questioning if you are
asking about crime-related matters unless you have Mirandized and have probable
cause.
2. In a murder case you must videotape every bit of questioning.
3. If you happen to discuss anything non-crime related during an initial discussion, you
must make sure the suspect acknowledges during the videotaped session that the
discussion related only to non-crime related subjects (state what they were).
VOL. 50: 232
DOMESTICS AND MURDER – REASONABLE SUSPICION TO STOP AND
DETAIN
People v Green
Facts
Green murdered Brittany.
The bits of evidence that Green did the murder were that:
 He had been involved in prior domestic incidents with Brittany.
 He had sent her threatening text messages.
Officers determined that there were four addresses associated with Green. When they saw a
car leave one of the addresses, they stopped it and determined that Green was a passenger in
the car. The officer noticed blood on Green’s person and ordered him out of the car. Green
was then handcuffed.
Law
The Illinois court of Appeals ruled that the evidence was enough to create reasonable suspicion.
Therefore the stop and detention were constitutional.
The above is a relatively obvious case of reasonable suspicion, so training tips here may not be
necessary except for what do you do now that you have reasonable suspicion?
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EXTENDING TRAFFIC STOPS BASED ON THE TERRORIST WATCH LIST
People v Abdur-Rahm
Facts
An officer stopped a car based on a minor traffic violation.
After approaching the car, he thought he smelled a faint odor of marijuana. He was not sure
because of the way the wind was blowing.
After calling the stop in, the officer learned that the driver was on a terrorist watch list. The
state police dispatcher informed the officer that the driver was a “low priority” suspect.
A back-up officer arrived and went up to the car. He did not detect a marijuana smell but did
smell a strong odor of deodorant, a masking agent.
When the officer returned the drivers license and paperwork, 23 minutes had passed.
The officers called out a drug dog and extended the detention for another 30 minutes or so.
The dog hit on the car and Abdur-Rahm was charged with possession with intent to deliver.
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The Law
The Illinois Court of Appeals ruled that there was not reasonable suspicion to hold Abdur-Rahm
beyond the time of the traffic stop. Therefore the evidence was suppressed.
Training Tips
1. Both the 7th Circuit Court of Appeals and the Illinois courts are beginning to get strict
about time limits for issuing traffic tickets.
2. If you need more time, you must ask the driver if he / she would mind waiting a few
more minutes. If he / she say no, then you must let the driver go.
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REASONABLE SUSPICION TO STOP AND FRISK
Reasonable suspicion is a crucial concept for officers to understand.
Context
Officers must understand that “reasonable suspicion” is not “just” “more than a hunch and less
than probable cause.”
It consists of 100’s of cases in Illinois where Illinois courts have decided, based on the exact
facts (that officer put in their reports!), whether there is -- or there is not -- enough to stop
detain the suspect.
We have over 100 reasonable suspicion cases in the book – both stopping pedestrians and
drivers. About half of those cases reflect situations where the courts have ruled that there was
reasonable suspicion – and half reflect cases where there was no reasonable suspicion to stop.
If there is no reasonable suspicion to stop, officers must conduct a Mendenhall consensual
encounter with the suspect if he is on foot, and must find a lawful traffic stop if the suspect is
driving. (See pages 31-48 and 211-233 in your Peace Officers Bible)
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Reasonable suspicion is also required to conduct a Terry search (pat-down or frisk). An officer
must have reasonable suspicion the suspect is armed and dangerous to satisfy the Terry search
doctrine. (See pages 83-94 and 286-293 in your Peace Officers Bible for the cases on point.)
People v Claypool
Facts
A little after midnight an officer saw Claypool looking into a parked car and trying the handles.
After trying the trunk, Claypool walked away. The officer became suspicious as car burglaries
were not uncommon in the area.
As the officer followed Claypool in his car, Claypool noticed the officer, changed directions
slightly and began to walk down an alley.
The officer stepped out of his car and called out to Claypool to “hold on a second.”
Claypool turned, and leaned forward as if to run and apparently slipped on the ice and fell
down.
The officer testified that he “escorted” Claypool to the squad car and ordered him to put his
hands on the hood of the car in order to pat him down. The officer further testified that a
suspect attempting to break into a car, might have burglary tools that could be used as
weapons.
Claypool would only put one hand on the car. He kept his other hand near his waistband. He
then took his other hand off the car and put it near his waistband. The officer, fearing Claypool
was going for a weapon, struggled with Claypool. Claypool then fled.
When the officer caught Claypool, Claypool spit a whitish substance into a nearby storm drain.
Officers later recovered the substance and ultimately identified it as 7.8 grams of cocaine.
No burglary tools were ever found in Claypool’s possession.
Claypool was charged with drug possession with intent to deliver. He was convicted and
sentenced to 15 years in prison.
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Law
The Illinois Court of Appeals ruled that there was reasonable suspicion to stop Claypool in that
Claypool was attempting to gain access to the vehicle. Adding to that were Claypool’s actions to
avoid the officer and possibly to run.
The court also ruled that the Terry search was reasonable in that a person burglarizing a car
may have burglary tools that can be used as weapons.
Training Tips
1. If you want to understand reasonable suspicion you must read all the cases in the Peace
Officers Bible on the subject.
2. There is an apparent conflict between the districts on whether a burglary suspect may
be Terry searched. Hopefully the Illinois Supreme Court will resolve the conflict.
Meanwhile, if you do frisk burglary suspects, be sure to state specifically the fact that
burglary tools can be used as weapons.
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WHEN SHOULD OFFICERS GET A WARRANT AFTER A DUI – ACCIDENT?
Context
The United States Supreme Court, in 2013, ruled that officers must prove that they are faced
with an exigency before they can get a warrantless blood draw. Exigencies are determined on a
case-by-case basis. Missouri v McNeely, 133 SCt 1552.
The Court in McNeely ruled that the natural dissipation of alcohol does not create a per se
exigency.
People v Armer
Facts
Armer was involved in a one-car accident that occurred at 11:25 p.m. The vehicle had rolled
over and was in a ditch. Armer was bloody and walking around.
An ambulance transported Armer to the hospital at 12:08 a.m.
An officer arrived at the hospital at 12:44 a.m.
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Armer’s eyes were bloodshot and glassy, there was an odor of alcoholic beverage, his speech
was slurred and the Armer admitted that he was “drunk.”
A citation for DUI in violation of section 11-501(a)(2) was issued at 12:45.
The officer then read the “Warning to Motorist” to Armer. Armer fell asleep as the warning
was being read and could not be roused.
The officer then requested that the hospital staff draw blood. The result of the blood draw was
a BAC of .159.
The officer then issued a second citation charging Armer with DUI in violation of section 11501(a)(1).
The officer later testified that this was not a situation where he thought it necessary to get a
warrant.
Law
The Illinois Court of Appeals ruled that the officer was not faced with exigent circumstances.
The main reason is that there were three officers, at least, who were present and could have
gotten a warrant. The officers could have contacted the State’s Attorney for assistance.
Therefore, the blood draw was an unconstitutional search, and the BAC was suppressed.
Training Tips
1. If you are faced with an accident where it is suspected that the driver is DUI, contact a
States Attorney immediately for assistance in drafting a search warrant.
2. The implied consent statute apparently permits the blood draw from an unconscious
person in this situation. But does McNeely “over-rule” this part of the statute? Before
relying on the implied consent statute on this point, make sure YOUR attorney will back
you if you draw blood without a warrant.
3. Another attorney / officer felt that the officer in the Armer case was wrong. He said,“ I
agree with the Armer / DUI case…it follows our implied consent statute. If the person is
merely asleep, wake them up and get consent. If they refuse it is a refusal unless you
feel the case is significant enough to seek a search warrant. I think the officer confused
being asleep with “unconscious”. If the person is unconscious then he has been deemed
to give his consent and no warrant would be necessary.” (Again, I think you should
consult with your state’s attorney on this one.)
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PHOTO LINEUPS – THE NEW STATUTORY REQUIREMENTS
First, let us comment that a whole chapter, chapter 9, is devoted to the constitutional issues
related to identifications. This may be found on pages 497-509 in your Peace Officers Bible.
That chapter explains the 4th, 5th, 6th and 14th Amendment issues related to identifications.
We have always thought that it is usually a mistake to codify / legislate with respect to
constitutional rules. But the legislature must feel that officers need more oversight in the
identification process.
I swore some time ago, I would not engage in discussions right now about statutes or
ordinances, except as those statutes and ordinances relate to constitutional issues.
We have received a number of questions about the new statute.
Here is the response of an attorney / officer for whom we have respect:
“The only thing I see with this statute is the restraints it now puts on officers. Now, we must:





Videotape a photographic line-up;
Have an Independent Administrator (not the investigating officer) show the line-up to
the witness;
Have the witness sign the report after viewing the line-up;
Present the witness with an “instruction” sheet advising them of several different
things;
Have a department policy dictating the statutory requirements.
All of the above is to ensure that the photo line-up is not too suggestive and the witness was
not “coached” to pick the suspect. We seldom do actual person line-ups…mostly on a major
criminal case like murder. But our officers are always doing photo line-ups for misdemeanor
cases. This will make conducting this type of line-up much more time consuming for the patrol
officer who is just trying to confirm that the suspect is the offender in order to get an arrest
warrant.”
Training Tip
1. Be sure to contact your legal advisor(s) to make sure how the statute is to be read.
2. Read the Identification chapter in the Peace Officers Bible.
VOL. 50: 241
BRIEFING QUESTIONS – AND ANSWERS -- FOR THE OCTOBER EDITION OF COURTSMART
1. What would I like you to remember about each of these 7th Circuit Section 1983 cases?
All of the following are in Volume II of your Peace Officers Bible
Cyrus? (pages 36 & 42)
This case deals with two very important excessive force issues – the
mentally ill and intermediate force (the Taser). I believe the 7th Circuit
and other circuits in the country are basically saying that officers should
normally be able to state a threat in order to use intermediate force.
Fox? (page 20)
Kevin Fox was in Tier 3 when he confessed (even though the officers
didn’t know it). He was placed in an interrogation room that was locked
and was pushed back down in his chair when he tried to leave. In addition
he was given his Miranda warnings. Officers must have PC to be in Tier 3.
The jury gave him $15,500,000 for his troubles that resulted.
Phillips? (page 35)
If you use a bean bag gun or SL6, and you are not faced with a threat, you
will probably be found liable.
Plakas? (page 26)
You do not have to use the least amount of force available. You have to
use reasonable force.
Sherrod? (page 27)
One “use of force” issue rule is that given the facts known by the officer,
was the officer’s use of force reasonable?
Scott? (pages 5 & 31)
Normally, statutes, ordinances and departmental policies are not
admissible for either side in a Section 1983 action as the question is – did
the officer violate the plaintiff’s constitutional rights?
Starks? (pages 12, 28 & 32)
VOL. 50: 242
Your pre-seizure strategy may be used against you. Jumping in front of
the suspect’s car and then shooting the suspect because he / the suspect
represented a threat of serious bodily injury doesn’t work very well. (This
issue will probably be tested in the Asberger case in Calumet City.)
Huff? (page 17)
Detaining traffic offenders beyond the time it takes to give the ticket can
result in liability.
White? (page 56)
The 7th Circuit and the Illinois courts may come to opposite conclusions
about the law. In this case, the courts differ on whether an exigency
exists when officers from outside a residence smell burning marijuana
inside the residence. (See e.g. People v Pierini, page 156 in Volume I of
your Peace Officers Bible)
Ramos? (pages 17 & 46)
Handcuffing traffic and Terry suspects can result in liability (unless there
is very good reason to do so – not just doing it for your “safety” – i.e.
what is your safety reason?).
2. What are the rules in setting up a checkpoint and executing it?
Whether or not you conduct checkpoints, discuss what you should say when a driver
asks if he / she is being “detained?” See the following:
https://www.youtube.com/watch?v=wv1xvwk3tfI
Is there any reason why officers do not know what to answer when a driver asks
if he / she is being “detained” (at a checkpoint – or any place else)?
The officer should say, “Yes, you are being detained.”
Officers will be baited with much more sophisticated questions than this,
(especially by good attorneys in court)!
You must know how to answer tough (and easy) questions – or you will find
yourself on YouTube!
VOL. 50: 243
BRIEFING QUESTIONS FOR THE NOVEMBER EDITION OF COURTSMART
1. What do you think is the most important aspect of setting up and executing a
checkpoint?
2. Why is it that officers do not understand the constitutional issues related to obtaining
statements from suspects, particularly homicide suspects, at the station?
3. What are the most important cases in helping you to understand reasonable suspicion?
4. What is the difference between reasonable suspicion to stop and reasonable suspicion
to frisk?
5. How long can you detain a driver during a traffic stop? How can you extend the time?
6. What should you do if you see a driver who appears to be DUI and who has been in an
accident?