VOL. 48: 43

CONTENTS

MAY 2012 VOLUME 48 ______Editor ARTICLE OF THE MONTH

NANCY ALBERT-GOLDBERG Officer-Citizen Confrontations Page 44 Adjunct Professor of Law Public Protests: 1st and 4th Amendment Concerns Page 44 Illinois Law Interpreting Relevant Statutes Page 45 Conclusion Page 47

Business Manager ______RECENT CASES JEFF WEINGARD

High Court Walks Fine Line in Strip Search Case Page 47

Managing Editor Detainee's Jailhouse Statements to Snitch Are Admissible Page 48

RENEE WEINGARD ______MISCELLANEOUS MATTERS

Hearsay Statements by Drew's Wives Are Admissible Page 51

Bulletin Checkpoints Page 48 Page 51 ______Copyright 2012, Illinois Law Enforcement Officers Law Bulletin

______

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VOL. 48: 44

ARTICLE OF THE MONTH

Officer-Citizen Confrontations: Disorderly Conduct, Resisting Arrest, and Obstruction of Justice

The Illinois Supreme Court's recent decision on Judge Richard Posner, writing on behalf of the Seventh obstruction of justice, along with the expected rash of Circuit, lambasted "the basic idiocy of a permit system police-citizen confrontations during the forthcoming that does not allow a permit for a march to be fixed in NATO summit in Chicago, make this an opportune time advance, but does allow the police to waive the permit to examine the law on officer-citizen confrontations. The requirement just by not prohibiting the demonstration." Illinois high court's latest opinion interpreting the state He referred to some 8,000 demonstrators and an statute on obstruction, People v. Baskerville, is discussed assortment of accidental bystanders as a "trapped herd" later in this article. due to the fact that mounted police had blocked off key intersections. And he termed police behavior in Vodak A. Public Protests: First and Fourth Amendment "unprofessional" because officers made mass arrests of Concerns marchers who had not heard the order to disperse and who had no means of exiting the blocked-off streets. Cox v. Louisiana and Vodak v. Chicago. Bulletin readers may recall the case of Vodak v. City of Chicago, The Vodak court found that police are prohibited under ___F.3d___ (7th Cir. 2011), Bulletin 47: 33-34. The case the Fourth Amendment from arresting protesters unless came about when anti-war protesters sued the City of the officers have probable cause to believe that the Chicago under the Civil Rights Act, 42 U.S.C. sec. 1983, protesters know they are violating a police order. Because alleging violations of their First and Fourth Amendment police had failed to communicate their orders to the rights during March 2003 demonstrations against starting crowd, and the marchers and bystanders had no way to a second war in Iraq. know that they were breaking the law, the arrests were unauthorized, the court said. The ironic fact in Vodak was that, since protestors had no "parade" permit from the City, there was no prescribed Moreover, the fact that neither the Mayor nor the City march route for their anti-war demonstration. In practice, Council had authorized mass arrests did not absolve the police sometimes informally waived the permit City of liability, the court concluded. The fact that the requirement by simply failing to tell demonstrators that City had a written policy giving the police superintendent they needed a permit. complete authority to administer the department meant that the City remained liable, the Vodak court found. On the date of the demonstration, things got out of hand. Due to the size of the demonstration, traffic on the City's Nagode. In another federal appeals court case, Goldhamer main thoroughfare quickly became disrupted. Police v. Nagode, ___F.3d___ (7th Cir. 2010), two protesters attempted to order the crowd to disperse, but they had no were arrested by Chicago police after handing out flyers effective mechanism to use in conveying commands to to people near a military recruiting booth at the city's thousands of people stretched out over a large landscape. annual Taste of Chicago Festival. When they failed to Police began arresting large numbers of people, whether heed an officer's order to disperse, the protesters were they were peaceful or not, whether they had heard the arrested and charged with disorderly conduct for violating order to disperse or not, and whether they were part of the a municipal ordinance that criminalizes failure to obey a demonstration or were simply bystanders. lawful order of dispersal by a peace officer.

The Seventh U.S. Circuit Court of Appeals found that the The Seventh U.S. Circuit of Appeals in Vodak was arrests violated the United States Supreme Court's time- reluctant to strike down the City's municipal ordinance as honored decision in Cox v. Louisiana, 379 U.S. 536 unconstitutional under the First Amendment. Rather, the (1965). The high court in Cox held that the Constitution court decided that, while a city could not, without prohibits police from enforcing a law that sweeps so violating freedom of speech and assembly, flatly ban broadly that it prohibits freedom of speech and assembly. groups of people from spontaneously gathering on The Cox court ruled that, while laws may limit the time, sidewalks or in public parks, the ordinance was not place, duration or manner of using the streets for public intended to prohibit peaceful protests of the sort engaged assemblies, it is unconstitutional to accord unbridled in by the arrestees. discretion to local officials. The Vodak court interpreted Cox to mean that police must notify demonstrators that The Nagode court concluded that it was the arrest itself, their permission to demonstrate is revoked before officers rather than the ordinance, that violated the arrestees' right can begin arresting them. to freedom of expression under the First Amendment. The VOL. 48: 45

court noted that the City of Chicago had already entered Gonzalez v. Elgin. In Gonzalez v. City of Elgin, 578 F.3d into an out-of-court settlement whereby the City agreed to 526 (7th Cir. 2009), Bulletin 45:108-109, a group of pay monetary damages to the arrestees. individuals were arrested on charges of resisting or obstructing a peace officer after they attempted to ask the Houston v. Hill. The decision in Nagode stopped short of officers what was going on and why they were being imposing a "death sentence" on the municipal ordinance. arrested. Citing Payne v. Pauley, 337 F.3d 767 (7th Cir. However, the United States Supreme Court did just that in 2003), the Gonzalez court noted: "It is well settled under City of Houston, Texas v. Hill, 482 U.S. 451 (1987). The Illinois law ... that the resistance must be physical; mere Houston ordinance under examination in that case made it argument will not suffice." unlawful to "interrupt any policeman in the execution of his duty". Citing the Illinois Appellate Court's decision in People v. Long, 316 Ill.App.3d 919 (2000), the Gonzalez court In Houston v. Hill, a political activist shouted at a police concluded: "Merely arguing with a police officer -- even officer in an admitted attempt to divert the officer's using abusive language -- does not constitute resisting a attention from a friend who was disrupting traffic. The peace officer." Accordingly, the Seventh U.S. Circuit high court held that the ordinance was overbroad because Court of Appeals found there was no probable cause to it "deals not with core criminal conduct, but with speech." assume that the individuals were guilty of resisting or obstructing a peace officer. "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers", People v. Raby. In the 1960's, a well-known African- the Court said. The Court added: "Today's decision American activist named Al Raby led a march around reflects the constitutional requirement that, in the face of Chicago's City Hall to protest racial segregation in the verbal challenges to police action, officers and public schools. After making a brief speech, he and about municipalities must respond with restraint." Accordingly, 65 others sat or lay down at a busy downtown the high court held that the ordinance was invalid on its intersection, completely blocking traffic. They were face under the First Amendment to the United States arrested for refusing to abide by a police order to leave Constitution. the intersection. When police attempted to arrest Raby, he "went limp," and had to be carried to a police van. B. Resisting or Obstructing a Peace Officer, Obstructing Justice, and Disorderly Conduct under Raby was arrested on two charges: resisting arrest and Illinois Law disorderly conduct. Raby's lawyer later argued in court that the resisting arrest statute was void because it places Following altercations with law enforcement officers, citizens in jeopardy of arrest for mere verbal Illinois citizens are often charged with violating one or disagreement. more of the following statutes. Here are some of the more pertinent provisions. The Illinois Supreme Court, in People v. Raby, 40 Ill.2d 392 (1968), disagreed. The court found that the terms 1) Resisting or obstructing a peace officer, 720 ILCS "resisting" and "obstruct" in section 31-1(a) imply that a 5/31-1(a), provides: "A person who knowingly resists or defendant has used some "physical force or exertion." obstructs the performance by one known to the person to Mere argument with police about the validity of an arrest be a peace officer ... of any authorized act within his or other police action is not prohibited under the statute, official capacity commits a Class A misdemeanor." the court said. Accordingly, the Illinois statute is not void for abridging a person's First Amendment rights, the court 2) Obstructing justice, 720 ILCS 5/31-4(a), provides: "A concluded. person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of Similarly, the Raby court rejected the notion that the any person, he knowingly commits any of the following Illinois disorderly conduct statute would allow persons to acts: (a) Destroys, alters, conceals or disguises physical be punished merely for peacefully expressing unpopular evidence, plants false evidence, furnishes false views, as was true in the case of Cox v. Louisiana. information .... " Obstructing justice is a Class 4 felony. Therefore, the Raby court also upheld the constitutionality of the disorderly conduct law. 3) Disorderly conduct, 720 ILCS 5/26-1, provides: "(a) A person commits disorderly conduct when he knowingly: People v. Bohannon. In 2010, the Illinois Appellate (1) Does any act in such unreasonable manner as to alarm Court considered the application of the misdemeanor or disturb another and to provoke a breach of the peace provision on obstructing a peace officer, 720 ILCS 5/31- ...." A violation of this section is a Class A Misdemeanor. 1(a), to a driver's refusal to produce his driver's license and proof of insurance at a random roadside safety VOL. 48: 46

checkpoint. The court in People v. Bohannon, Christine's husband emerged from the home and spoke ___Ill.App.3d___ (5th Dist. 2010), Bulletin 46:121-122, with the officer, but denied that Christine was inside. concluded that the driver was not guilty of obstructing or However, he offered the deputy the opportunity to go resisting an investigation into whether the laws of Illinois inside the home and search for Christine. were violated. The facts showed that he did not resist being taken into custody, obstruct the towing of his The deputy declined to enter, stating that he would send vehicle, or provide misleading information. Accordingly, Christine a ticket in the mail and refer his report of the the court held that he was not guilty of resisting or incidents of obstructing an officer to authorities. As a obstructing; he only committed the specific offense of result of this incident, Christine's husband was ultimately failure to display his license as required by the Illinois charged with obstructing a peace officer for lying about Vehicle Code. his wife's whereabouts.

People v. Kotlinski. Last October, the Illinois Appellate The Baskerville court noted that, since the decision in Court provided an additional insight into the meaning of Raby, Illinois courts have recognized the possibility, but the misdemeanor provision on obstructing a peace officer, left unanswered, the question of whether conduct falling 720 ILCS 5/31-1(a). In People v. Kotlinski, 2011 IL App between "mere argument" and "a physical act" could ever (2d) 101251, Bulletin 47:122-124, a Mundelein, Illinois constitute obstructing a peace officer under section 31- police officer charged the husband of a driver with 1(a). The state's high court in Baskerville concluded that it obstructing a peace officer for briefly stepping outside the should be up to the trial court to decide whether a family vehicle to check on the whereabouts of his wife, defendant's conduct hindered the officer in the who was being tested for intoxication at the officer's performance of his duties. Providing misinformation to squad car. police may suffice, the court said.

The officer tasered Mr. Kotlinski, despite the wife's However, the remaining question was whether the warning that her husband had a weak heart. A jury found evidence in this case was sufficient for proof beyond a the husband guilty of obstruction. reasonable doubt that the husband was guilty of obstructing a peace officer. Since Mr. Baskerville offered On appeal, the Kotlinski court deferred to Raby in the officer the opportunity to go inside and look for deciding that the mere act of stepping outside the car was Christine, he did not actually hinder the deputy in not an act of obstruction involving some physical act or executing the traffic stop, the court found. exertion that impeded the officer's performance of his duties. Moreover, the court held that Mr. Kotlinski did not Accordingly, the Baskerville court issued a two-part have the requisite "mental state" for a conviction under holding: 1) that knowingly furnishing a false statement to the statute because the law requires that a defendant must police may constitute obstruction of a peace officer under be "consciously aware" that his conduct will cause the section 31-1(a); but 2) that in this case defendant's false peace officer to be obstructed in the performance of his statement did not actually impede the officer's ability to duty. execute the traffic stop. As a result, the court ruled that Christine's spouse was not guilty of obstructing a peace People v. Baskerville. Recently. the Illinois Supreme officer. Court expanded its interpretation of the Illinois statute prohibiting resisting arrest and obstructing a peace officer. People v. Comage. Last year, the Illinois Supreme Court The court retreated from its blanket refusal to extend the interpreted the language of the felony obstructing justice statute's application beyond physical acts. In People v. statute, 720 ILCS 5/31-4(a), in People v. Comage, Baskerville, 2012 IL 111056, decided on February 17, ___Ill.2d___ (2011), Bulletin 47:39. While fleeing from 2012, the initial question was whether section 31-1(a) police, Comage threw a metal pipe and push-rod over a requires proof of some physical act by the defendant, as wooden privacy fence. However, Decatur, Illinois police the state's high court indicated in Raby. officers managed to recover the items in a matter of seconds. The facts in Baskerville were as follows. A LaSalle County sheriff's deputy spotted Christine Baskerville The decision turned on what the legislature meant by the driving a blue van and believed that her license had been word "conceals." The state high court found that throwing suspended. By the time the deputy received confirmation evidence away in plain view of police does not constitute of her license suspension from the dispatcher, Christine concealing evidence for purposes of the obstructing was pulling into her driveway. She then exited and justice statute if defendant's action does not materially walked toward her house. The officer asked her to return impede a police investigation. Since the police to her vehicle, but she nonetheless went inside the house. investigation was delayed by only 20 seconds, the court reversed Comage's conviction. VOL. 48: 47

Conclusion In general, citizens may not be arrested for resisting arrest or obstructing an officer unless they engage in physical In balancing the rights of citizens guaranteed by the acts that succeed in adversely affecting the investigation Constitution against the need to ensure that law of an offense. Where citizens are not aware that they are enforcement officers are given the requisite authority to impeding an investigation, or where they are not aware of carry out their duties, the courts are constantly re- an order conveyed by an officer (such as an order to assessing where the lines should be drawn. Courts have disperse), police are not authorized to effect an arrest. uniformly held that merely arguing with an officer or questioning the officer's actions does not justify an arrest. Any law that subjects citizens to the risk of arrest for Mere speech only violates the law if it contains peacefully exercising their First Amendment rights to misinformation that actually results in impeding an officer freedom of speech and assembly is inherently void and in the performance of authorized acts. unenforceable.

RECENT CASES

U.S. Supreme Court: High Court Walks Fine Line in Strip Search Case Florence v. Board of Chosen Freeholders of County of Burlington, ___U.S.___, No. 10-945, April 2, 2012

Note: The June 2010 Bulletin reported on the lack of The Essex County Correctional Facility, where Florence consensus among federal appeals courts regarding the was taken after six days, is the largest county jail in New constitutionality of strip searches for individuals charged Jersey. When he was transferred there, all arriving with committing minor offenses. (See Bull.46:50-57.) We detainees passed through a metal detector and waited in a noted that there was a division of opinion on whether the group holding cell for a more thorough search. Once in fact that non-dangerous arrestees are commingled with the holding cell, they were instructed to remove their more dangerous inmates in a facility gives authorities the clothing while an officer looked for body markings, right to conduct a strip search. Until now, the high court wounds, and contraband. Apparently without touching the has declined to reconcile these disparities. detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body Facts: Albert Florence had been arrested after fleeing openings. Florence was required to lift his genitals, turn from police in Essex County, New Jersey. He was around, and cough in a squatting position as part of the charged with obstruction of justice and use of a deadly process. weapon. He pled guilty to two lesser offenses and was sentenced to pay a fine in installments. In 2003, after he Florence was then admitted to the facility. He was fell behind on his payments and failed to appear at an released the following day when charges against him were enforcement hearing, a bench warrant was issued for his dismissed. arrest. He paid the outstanding balance less than a week later, but the warrant remained in a statewide computer Afterwards, Florence filed suit in federal court under the database. Civil Rights Act, 42 U.S.C. sec. 1983 for violations of his Fourth and Fourteenth Amendment rights. He maintained Two years later, Mr. Florence and his wife were stopped that, under the United States Constitution, those arrested in their car by a state trooper in Burlington County, New for a minor offense could not be required to remove their Jersey. Based on the outstanding warrant in the computer clothing and expose the most private areas of their bodies system, the officer arrested Mr. Florence and took him to to close visual inspection as a routine part of the intake the Burlington County Detention Center. He was held process. He contended that officials could conduct this there for six days and then was transferred to the Essex kind of search only if they had reason to suspect a County Correctional Facility. particular inmate of concealing a weapon, drugs, or other contraband. Burlington County jail procedures required every arrestee to shower with a delousing agent. Officers would check Issue: Are jail officials required to have a reasonable arrestees for scars, marks, gang tattoos, and contraband as suspicion that a detainee is concealing a weapon or they disrobed. Mr. Florence was also instructed to open contraband before subjecting someone arrested for a his mouth, lift his tongue, hold out his arms, turn around, minor offense to an invasive strip search? The issue in and lift his genitals. Florence shared a cell with at least this case is limited to detainees who are admitted to the one other person and interacted with other inmates general population of the jail, and does not apply to those following his admission to the jail. who are kept in a separate holding cell or otherwise VOL. 48: 48

segregated from the facility's general population. Given Holding: The Fourth and Fourteenth Amendments do not the facts in this case, the issue is also limited to searches bar jail officials from conducting visual strip searches of involving visual inspection, as the lawsuit does not allege detainees arrested for minor offenses where they are to be any touching. admitted to the general jail population, so long as the searches do not involve physical contact by corrections Analysis: Justice Kennedy, writing on behalf of a 5- officers. member majority, notes that some federal appeals courts have held that corrections officials may not conduct a Concurring and dissenting opinions: Chief Justice strip search of those arrested for minor offenses absent Roberts, in a concurring opinion, takes solace in the fact reasonable suspicion of concealed contraband. However, that the Court's opinion does not foreclose the possibility Justice Kennedy concludes that the Court has previously of exceptions to the rule established in this case. Justice held that deference must be given to jail officials unless Alito's concurring opinion recommends a solution there is substantial evidence that their response to the whereby temporary detainees who are minor offenders situation is exaggerated. would be segregated from the general jail population until after a judge rules that the arrestee will be detained, Justice Kennedy emphasizes two factors that influenced thereby avoiding the necessity of strip searches for short- his decision. First, the risks for jail officials and detainees term detainees. are enhanced today due to the increasing number of gang members who go through the intake process. Secondly, it Justice Breyer filed a dissenting opinion, joined by may be difficult to classify inmates by their current and Justices Ginsburg, Sotomayor and Kagan. The dissenting prior offenses before the intake search because jail view is that the Fourth Amendment forbids strip searches officials know so little about the people they admit at the of individuals arrested for minor offenses not involving outset. For example, Mr. Florence's rap sheet did not drugs or violence unless jail officials have a reasonable reflect his arrest for possession of a deadly weapon. suspicion that the individual possesses drugs or contraband. The majority points out that this is a very narrow decision because the case does not involve a situation where the The dissent points to the lack of evidence that the detainee is held without assignment to the general jail reasonable suspicion standard has failed to prevent drugs population and without substantial contact with other and contraband from entering jails. Justice Breyer cites a detainees. Justice Kennedy's opinion takes note of an number of state laws, federal appeals courts and national exception proposed by Justice Alito for arrestees whose bodies that have endorsed the reasonable suspicion detention has not yet been reviewed by a judge and who standard. can be held in facilities removed from the general population. The majority opinion also notes that, in future The dissent also points out that the prior decision relied cases, there may be legitimate concerns about the on by the majority, Bell v. Wolfish, 441 U.S. 520 (1979), invasiveness of searches that involve the touching of did not address strip searches for those accused of minor detainees. offenses who had yet to come before a judicial officer.

BULLETIN CHECKPOINTS:

• The U.S. Constitution does not prohibit jail officials from conducting visual strip searches of detainees where: 1) the arrestee is admitted into the general population of the facility as opposed to being confined separately; and 2) the strip search does not involve physical contact by a correctional official. • State laws may impose more restrictive safeguards on strip searches and on warrantless arrests for minor offenders. • Individual correctional facilities may apply a reasonable suspicion standard before strip searching inmates entering the general jail population.

Illinois Supreme Court: Detainee's Jailhouse Statements to a Fellow Inmate Wearing a Wire for Police Are Admissible in Court People v. Tavares Hunt (Hunt IV), 2012 IL 111089, April 19, 2012

Note: The October 2010 Bulletin reported on a ruling by that statements made by Tavares Hunt to a jailhouse the Illinois Appellate Court in the Tavares Hunt saga snitch planted by police detectives after Hunt allegedly (Hunt III). (See Bull. 46:98-100.) The appellate court held invoked his Miranda rights should be suppressed under VOL. 48: 49

the Illinois Constitution as interpreted in prior court Hunt's public defender later testified, from his decisions. contemporaneous notes, that he called the police station as soon as he received Hunt's message and confirmed that The Illinois Supreme Court's decision in Hunt IV reverses Hunt was there. He asked to speak with the detectives and the Illinois Appellate Court's ruling. The high court now was told they were "out in the field." The public defender holds that statements made by Hunt to a police agent are then said he was coming down to the police station. He admissible. arrived at 3:14 p.m., and the detectives were paged at 3:19 p.m. Counsel repeatedly asked to speak with Hunt but Issue: Should recordings of Hunt's conversations with was not allowed to do so until after sometime after 4 p.m. another inmate have been suppressed from evidence? At 4:12 p.m., after meeting with the public defender, Hunt invoked his rights to remain silent and to have counsel Facts: While Tavares Hunt was being held in the Cook present during questioning. County jail on an unrelated charge, he became a suspect in the murder of Shakir Beckley. In May 2002, Chicago On August 6, detectives again took Hunt from the county police detectives took Hunt from the county jail to a jail to the police station and placed him in an interview Chicago police station for questioning about Beckley's room with the wire-wearing snitch. Police again murder. monitored and recorded the conversation, during which Hunt again allegedly implicated himself in Beckley's Hunt later maintained that, after receiving the Miranda murder. Hunt was not questioned by police. The public warnings, he told the officers that he would not speak to defender's office had withdrawn its representation of Hunt them unless an attorney was present. He stated that, in the unrelated case a few days earlier, and no counsel despite this, officers continued to question him. was present in the jail during the overhear that day.

The detectives testified to a different version of events. Before his trial for Beckley's murder, Hunt's attorney filed They contended that Hunt not only waived his Miranda a motion to suppress both sets of tapes. The trial court rights before being questioned, he consented to, and took, found that the tapes from both overhears were inaudible a polygraph test for which he signed a written waiver. and granted the defense motion to suppress them from After the polygraph test, the detectives questioned Hunt evidence. Afterwards, the case was bounced from the again, and he continually denied any involvement in Illinois Appellate Court (Hunt I) to the Illinois Supreme Beckley's murder. Court (Hunt II) and back again to the Illinois Appellate Court (Hunt III) before returning to the Illinois Supreme In late June, while in court on the unrelated charge, Hunt Court as Hunt IV. saw his public defender. The public defender counseled him not to talk to the police. Hunt III analysis and holding: The Illinois Appellate Court in Hunt III considered the admissibility of the tapes On or about July 16, detectives once again took Hunt in light of the U.S. Supreme Court's decision in Illinois v. from county jail to a police station and questioned him Perkins, 496 U.S. 292 (1990). In Illinois v. Perkins, an about Beckley's murder. However, Hunt told them he did inmate informed police that Perkins had told him about a not want to talk to them and that he wanted to talk to a murder he committed. The issue before the Court was lawyer. At no time did Hunt admit to involvement in whether the inmate, acting as an undercover agent for Beckley's murder during questioning by police. police, must give Miranda warnings to an incarcerated suspect before asking him questions that might elicit an On July 31, guards at the county jail told Hunt that incriminating response. Illinois v. Perkins held that detectives were coming to put him in a lineup. Hunt conversations between suspects and undercover agents are called his public defender and left a voice mail message not covered under Miranda v. Arizona because the asking the public defender to come to the police station essential ingredients of a "police-dominated atmosphere" for the lineup. Detectives then took Hunt from the county and compulsion are not present when an incarcerated jail to the police station, put him in an interview room, person speaks to someone he believes to be a fellow and left him alone for about three hours. inmate.

At about 3 p.m., an inmate who was wearing a concealed Accordingly, the Hunt III court found that, under Illinois wire pursuant to a court order was put into the interview v. Perkins, because Hunt made the statements to the room with Hunt. The detectives recorded the conversation informant rather than to police, Hunt was not subject to a between the pair and monitored the conversation from "custodial interrogation." Therefore, Miranda warnings another room. During the conversation, Hunt allegedly were not required prior to the conversation between the implicated himself in Beckley's murder. informant and Hunt.

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The Hunt III court also considered the application of the state courts have the authority to interpret their respective Illinois Appellate Court's decision in People v. Perkins constitutional provisions more broadly than the U.S. (Perkins II), 248 Ill.App.3d 762 (5th Dist. 1993), which Supreme Court interprets similar federal constitutional ultimately determined the outcome of the case decided in provisions. [Note: McCauley was not handed down until Illinois v. Perkins. On remand from the U.S. Supreme after the decision in Perkins II.] Court, the state appellate court in Perkins II defined "custodial interrogation" to include questioning by police McCauley held that, under Illinois law, when police, prior agents and informants as well as police officers. to or during custodial interrogation, refuse an attorney access to his or her client, there can be no knowing waiver Based on Perkins II, the Hunt III court held that Hunt's of the right to counsel if the suspect has not been interrogations were custodial interrogations and that the informed that the attorney was present and seeking to police agent's incommunicado custodial interrogations consult with him. violated Hunt's guarantee against self-incrimination under article I, section 10 of the Illinois Constitution. Having reviewed the McCauley and Perkins decisions, the Illinois Supreme Court in Hunt IV concluded that "like a Hunt IV analysis: The Illinois Supreme Court re- suspect's Miranda rights, his McCauley right to an examined the pivotal decision in People v. Perkins immediately available attorney arises only during police (Perkins II). The Hunt IV court rejected the notion custodial interrogation." Because the police did not inherent in Perkins II that custodial interrogation includes interrogate Hunt when Hunt was talking to the jailhouse questioning by police agents and informants as well as by snitch, Miranda and McCauley are inapplicable, the court officers themselves. Such a notion contravenes the U.S. said. Supreme Court's decision in Illinois v. Perkins that Miranda warnings are not required before a suspect is Accordingly, the Hunt IV court found that the detectives questioned by a police informant, the court said. Since the were not required to give Hunt Miranda warnings during Perkins II court totally disregarded the U.S. Supreme the overhears; Hunt had no constitutional right to counsel Court's decision in Illinois v. Perkins, Perkins II is during the overhears; and the detectives were not required expressly overruled, the state's high court held. to inform Hunt that his attorney was at the police station asking to speak with him. For these reasons, the high The Hunt IV court also noted that the Illinois Appellate court ruled that the statements made to the police Court's decision in Perkins II was based on the federal informant should not have been suppressed. rather than the state constitution. Perkins II never mentions the Illinois Constitution. In sum, the idea that Holding: The Illinois Supreme Court, in a unanimous "custodial interrogation" includes questioning by police decision, held that statements made by Hunt to a police agents and informants has been rejected by the Illinois informant during a court-ordered overhear were Supreme Court. Under Hunt IV, a detainee is deemed to admissible because they did not violate his right to be "in custody" only when the detainee feels compelled to counsel under the Illinois Constitution. answer questions due to his awareness that authorities are present. Concurring opinion: Justice Freeman filed a separate opinion specially concurring in the result. However, he Having disposed of the argument that the unMirandized pointed out that McCauley and Hunt are not close interrogation by the snitch violated the privilege against factually. self-incrimination, the Hunt IV turned to the question of whether the incommunicado interrogation by the McCauley involved a situation where a defendant, though government-planted snitch violated Hunt's right to Mirandized, was interrogated by police without having counsel under the Illinois Constitution. For a resolution of been told that his lawyer had arrived at the station and this question, the state's high court relied on People v. was prevented from seeing him. In Hunt, when his lawyer McCauley, 163 Ill.2d 414 (1994). arrived, Hunt was engaging in a judicially sanctioned conversation with a fellow inmate operating as an In McCauley, the Illinois Supreme Court found that the informant. Accordingly, the decision in Hunt in no way Illinois Constitution affords defendants greater erodes McCauley's holding that the police conduct in protections than does its federal counterpart. The McCauley remains a clear violation of a defendant's rights McCauley court observed that under the U.S. Supreme under the Illinois Constitution, Justice Freeman said. Court's holding in Oregon v. Hass, 420 U.S. 714 (1975),

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BULLETIN CHECKPOINTS:

• A jailed arrestee/detainee is not deemed to be "in custody" during jailhouse questioning by a government- planted informant, provided that there is no compulsion for the arrestee to answer questions and police are not present during the questioning. • Because the detainee is technically not "in custody," jailhouse questioning by a police informant does not violate a detainee's privilege against self-incrimination. • Neither the police informant nor authorities are required to give the detainee Miranda warnings before questioning by a police agent posing as a fellow inmate. • Statements made by a detainee to a police informant in a jail setting are admissible in court even if the detainee has been deceived into believing that the police informant is an ordinary inmate rather than an individual who was wired by authorities. • During questioning by a jailhouse snitch, a detainee is not deemed to have been deprived of his constitutional right to the assistance of an attorney, even if the detainee's attorney is present at the jail and has asked to speak with his client. • However, it is unlawful for police to keep an attorney who is present at the jail and has asked to speak with his client from being present during questioning by police.

MISCELLANEOUS MATTERS

Illinois Appellate Court: Hearsay Statements by Drew's Wives Are Admissible; Illinois Supreme Court Rule Trumps Revised Illinois Code of Criminal Procedure People v. Drew Peterson, 2012 IL App (3d) 100514-B, April 12, 2012

The March 2011 Bulletin discussed the pending However, the statute creates a steep hurdle for the prosecution of former Bolingbrook, Illinois police prosecution to overcome. Before the evidence can be sergeant Drew Peterson, charged with first degree murder admitted into evidence, there must first be a hearing in the death of his third wife, Kathleen Savio. (See before the trial judge. At the hearing, the prosecution is Bull.47:23-27.) Savio was found dead in her bathtub. required to show by a preponderance of the evidence: (1) Peterson's fourth wife, Stacey Peterson, disappeared in that the defendant murdered the witness with the intention 2007. Around the time of her disappearance, Stacey and of causing the witness's unavailability at trial; and (2) that Drew had been discussing a divorce. Stacey remains the time, content, and circumstances of the statement missing and unaccounted for. provide "sufficient safeguards of reliability."

A Will County trial judge declined to allow as evidence in The trial court held a hearing in Drew's case and Drew's murder trial a number of telling statements made determined that the first prong of the statutory test was to friends and relatives by Drew's third and fourth wives met, but that 8 of the 14 hearsay statements proffered by on the ground that the statements were "hearsay" evidence the State did not meet the statutory standard of reliability. and therefore inadmissible. Accordingly, the judge declined to admit the 8 statements.

Prosecutors asked the Illinois Appellate Court to review A broader hearsay exception known as the doctrine of the trial judge's ruling. The question presented in this "forfeiture by wrongdoing" was imported into this country appeal is whether certain hearsay statements made by from the common law of England. (See Bull. 47:23-27.) Kathleen and Stacy are admissible under a hearsay This exception applies to statements made by an exception for intentional murder of a witness. unavailable witness where the defendant intentionally made the witness unavailable in order to prevent him or A hearsay exception is codified in 725 ILCS 5/115-10.6 her from testifying. of the Illinois Code of Criminal Procedure, which provides that: "[a] statement is not rendered inadmissible The common law doctrine of forfeiture by wrongdoing by the hearsay rule if it is offered against a party that has was first recognized by the U.S. Supreme Court in killed the declarant ... intending to procure the Reynolds v. U.S., 98 U.S. 145 (1878). Unlike the Illinois unavailability of the declarant as a witness in a criminal or statute, the common law doctrine does not condition the civil proceeding." admissibility of hearsay statements on a showing that the statements are trustworthy or reliable. VOL. 48: 52

However, Drew's trial judge denied the prosecution's . motion to admit 8 of the hearsay statements submitted by So the ultimate question in Drew Peterson's case boiled the prosecution because the judge believed that section down to whether or not a statutory provision contained in 115-10.6 of the Code codified, and therefore, supplanted, the Illinois Code of Criminal Procedure should take the common law doctrine. Hence, the trial judge decided precedence over a provision contained in the Rules of that he could not apply the more lenient standard allowed Evidence promulgated by the Illinois Supreme Court. under the doctrine of forfeiture by wrongdoing. The Illinois Appellate Court disagreed. The Peterson court found that, as a matter of separation of powers in the state, the Illinois Supreme Court has the On appeal, the Peterson court noted that the Illinois ultimate authority to determine the manner by which Supreme Court expressly adopted the common law evidence may be introduced into the courts. Thus, where a doctrine as the law of Illinois in 2007 when it handed statute conflicts with a rule of evidence promulgated by down People v. Stechly, 225 Ill.2d 246. Accordingly, in the supreme court, courts are required to follow the rule Illinois, the common law rule allows for admission of of evidence. qualifying hearsay statements even if there is no showing that such statements are reliable, the Peterson court said. Accordingly, the Peterson court concluded that the conflict between section 115-10.6 of the Illinois Code and The Peterson court went on to explain that in September the forfeiture by wrongdoing doctrine adopted in Stechly 2010, the Illinois Supreme Court adopted the Illinois and codified in the Illinois Rules of Evidence must be Rules of Evidence, which became effective in January resolved in favor of the forfeiture by wrongdoing 2011. This codified the existing rules of evidence in doctrine. Illinois, which included the common law doctrine of forfeiture by wrongdoing, the Peterson court explained. A 3-judge panel of the Illinois Appellate Court in Peterson unanimously held that the statements previously The common law doctrine of forfeiture by wrongdoing is excluded by the trial judge are admissible under Illinois now Illinois Rule of Evidence 804(b)(5). Like the original Rule of Evidence 804(b)(5). The Appellate Court common law doctrine, it does not require the prosecution explicitly reversed the ruling of the trial court. to prove that a statement made by an unavailable witness is reliable.