VOL. 48: 78

CONTENTS

AUGUST 2012

VOLUME 48

ARTICLES

Entering premises under the emergency doctrine – Anonymous calls that shots are fired Page 79

Other important issues for officers to consider Page 80

My Recommendations in situations like this Page 80

Stopping drivers solely because the registered owner is suspended or revoked Page 82

One final comment Page 84

Officers may stop a vehicle on reasonable suspicion that the driver committed a traffic offense Page 85

Handcuffing suspects before TERRY searches and during a TERRY or traffic stop Page 88

Please note: The Bulletin welcomes comments and suggestions. The Bulletin is designed to convey general information and should not be construed as providing legal advice. Readers are urged to consult the in-house counsel at their law enforcement agency or government corporation counsel when seeking legal advice. The Bulletin would like to hear from you! Please send your comments and questions to jeff@officerslawbulletin.com.

Copyright 2012, Illinois Law Enforcement Officers Law Bulletin and Dale Anderson

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VOL. 48: 79

Entering premises under the emergency doctrine – Anonymous calls that shots are fired

When I teach the theories / doctrines for entering premises I say that (99%) there are four:

PC - Warrant

PC - Exigency

Emergency

Consent

First, what is the difference between an "exigency" and an "emergency?" Both terms basically

mean the same thing, don’t they?

In my opinion, the best way to think about these concepts is this: an exigency (when dealing with

premises) is having probable cause (in a criminal matter) to enter the premises but being

presented with circumstances where the courts have said officers may dispense with the

procurement of a warrant. These circumstances are some combination of seven or eight factors

that go way beyond the scope of this article. (I will deal with those factors in a future article.)

The main thing to remember is that exigencies, in the context of this article, deal only with

criminal activity when an officer has probable cause.

Emergencies, on the other hand, are circumstances generally where an officer has “probable

cause” to believe that someone inside a home needs the officers’ help – usually someone is

injured or ill, etc. that sort of issue.

Officers often call these searches “well-being checks,” “welfare checks” or “safety checks.”

Courts sometimes call this the “emergency aid” theory or doctrine. Whatever the entry is called,

it must be constitutional under the emergency doctrine as interpreted by the courts – and there

are a lot of cases explaining the parameters of the theory.

People v Lomax, presents an interesting example of a recent case decided under the emergency

doctrine.

Facts

A police department got a number of anonymous 911 calls that a certain “multi-unit” apartment

complex was experiencing gunshots. One of the callers said that the gunshots were coming from

the “first floor rear” unit of the building.

Officers arrived within a couple of minutes and proceeded to the first floor rear apartment. The

officers knocked and announced their office. A child, maybe two to four years old answered the

door. The officers could see two women and three small children in the apartment

The officers ordered the five people out of the apartment.

Immediately after that, the officers saw Lomax in the apartment. The officers ordered Lomax to

exit the apartment.

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The officers then performed a “safety check” to ensure that no one had been shot.

During this search, officers discovered crime-related evidence which led to the indictment of

Lomax.

Question / Issue

Was it constitutional for officers to enter the premises under the emergency doctrine?

Trial Court Ruling

The trial judge ruled that the entry was unconstitutional, to an extent because of the officer’s

report and testimony. For example, the officer characterized the complex as a “multiunit” when,

in fact, it was “two-flat” building.

Illinois Court of Appeals Holding / Ruling The Illinois Court of Appeals ruled that there was probable cause to believe that someone might

be injured in the apartment, and the officers entered only to look for that victim. Therefore the

evidence was admissible.

Rationale / Reasoning of the Court of Appeals Multiple anonymous 911 calls reflected there were shots fired. One call focused all of the shots

on the “first floor rear” unit.

After entry, the officers confined the search to looking for someone who might be shot.

(Courts are very lenient on the PC requirement when officers in a good faith search or seizure try

to protect persons / victims and can explain their concerns.)

Other important issues for officers to consider

This is a very close case. The trial court had ruled that the entry was unconstitutional and there

was a very strong dissenting opinion in the case. These judges thought that the PC was very

weak and that the officers should have talked to residents before entering.

Even the majority opinion criticized the officers for:

not talking to anyone at the complex before entering,

sloppy policing, (never talking to anyone at the scene before entering),

sloppy report writing (e.g. never noting that there were only two apartment units),

sloppy testimony (e.g. failing to testify that it was a two-flat building).

Finally, the court criticized the officers for ordering the occupants out of the apartment,

implying, that in their opinion, ordering residents out of their home is unconstitutional. But the

court let the officers slide on this issue as it was somewhat tangential to the real issue in the case

(entering the home).

My Recommendations in situations like this:

1. Safety First

Do not jeopardize your safety. But 99% of the time, the Constitution does not require you

to risk your safety to protect a citizen’s rights.

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2. Get others to be the concerned parties

If you can, talk to witnesses / victims / persons about the emergency situation – try to get

others to be the concerned parties. (However, in circumstances such as this, if you wait

too long to search, the defense attorney will have a field day arguing that you didn’t think

it was an emergency because you waited too long.) Courts are much more willing to find

an emergency aid entry constitutional when some citizen says it is.

3. “If it isn’t in your report, it didn’t happen.”

The officers failed to note in their report that one 911 caller said that the shots were

coming from the rear first floor unit. This report writing error almost cost them the entire

case.

4. Be careful when writing your reports

In this case the officer wrote that the complex was “multi-unit” when it was really just

two units, front and back. This confused the judge who thought that the officers did not

have a reason to choose the Lomax apartment as the one from whence the shots emanated.

(BTW, when I talk to prosecutors, I tell them that if they would get out from behind their

desks and go to the scene, they would be able to fix this problem in a heartbeat.)

5. Save those calls

Always save these 911 calls. They might make the difference between winning and

losing.

6. Ordering occupants out of a residence

The Court of Appeals said, “In this case, we are troubled by the police officers’ command

that the residents leave their home before they performed the warrantless safety check. “

(The court seems to imply that if you need occupants to be in a certain place in

circumstances like this, it would probably be ok better (?) to order them into the living

room.)

7. There was a very strong dissent in this case

The dissenting judge was concerned that the officers never asked one question upon

arrival. Also, the judge was concerned about the fact that anonymous calls are often

bogus. The dissenting judge thought the officers should have corroborated the

information from the calls.

8. Anonymous callers are not accountable

Remember that the United States Supreme Court case of Florida v JL says that an officer

cannot stop / seize a person based solely on anonymous tip because anonymous callers

are not accountable. The reasons for the extraordinary opinion in Lomax was the fact that

there were several calls and the fact that the gunshots could be pinpointed to a single unit

– and finally the officers confined their search to looking for victims..

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Stopping drivers solely because the registered owner is suspended or revoked

The Court(s) of Appeals

First let me say, People v Hernandez is a Second District, Court of Appeals case, decided June

27, 2012.

As most of you know the Court of Appeals is divided into five districts::

District 1 is basically Chicago;

District 2 is the collar area all the way over to the Mississippi; District 3 is south of Chicago over to Moline;

District 4 is south of that;

District 5 is south of district 4;

Officers must know all the important cases in all the districts -- but District 2 is obviously the

most important.

The Facts In the Hernandez case, an officer stopped Hernandez because the owner, Mrs. Hernandez, was

suspended. The stop occurred in June 2010 at about 9:00 p.m. The officer never pulled up to

check and confirm whether it was a male or female driving the car.

Mr. Hernandez was the driver. The officer immediately recognized his mistake, but asked Mr.

Hernandez for his license anyway. Mr. Hernandez replied that he "didn't have one."

After obtaining Hernandez' name and date of birth, the officer ran him and determined that he

too was suspended.

The issue - Is it ok to detain a driver after reasonable suspicion is gone / dissipated? The exact question in the Hernandez case was -- if there is only one registered owner and that

owner is a female, what happens when the officer pulls the car over -- and later discovers that it

is a male driving the car? Can the officer then ask the driver for his license?

In other words, must the officer in a case like this tell the driver that he (the officer) made a

mistake and turn around and go back to his patrol car -- or does the officer have the power to ask

the driver for his / her license, even though, at that moment there is absolutely no reasonable

suspicion for the stop?

Precedents related stops of cars when the owner(s) is / are suspended So about the Hernandez case, District 2 had previously ruled:

If the registered owner's license was suspended or revoked, the officer was empowered to

automatically stop the owner's car as the owner is the presumed driver. Village of Lake in

the Hills v Lloyd, 227 Ill. App.3d 351 (1992).

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If there were two registered owners of the vehicle and only one was suspended or

revoked, the officer was not empowered to stop the vehicle without first pulling up beside

the vehicle to try to determine who was driving. People v Galvez, 401 Ill. App.3d 716

(2010).

The Trial Court's Decision in Hernandez The trial court ruled that once reasonable suspicion had dissipated (when the officer determined

the driver was a male), the officer should have "explained the reason for the stop, apologized,

and told [Hernandez] he was free to go."

The Court of Appeals (District Two) Decision in Hernandez The state appealed the trial court's decision.

The Illinois Court of Appeals, District 2, reversed the trial court, ruling that an officer may ask

for a license in this situation. When the driver, Hernandez, said he had no license, the officer had

reasonable suspicion to hold him longer to determine if he also was suspended.

May an officer check the driver for warrants if the driver has a license? The holding does not reveal specifically whether or not an officer may run the driver for warrants

if a driver in the position of Mr. Hernandez has an apparently valid drivers license -- because that

is not the facts of this case.

Relying on People v Safunwa, 299 Ill. App. 3d 707 714 (1998), a concurring opinion says YES,

an officer may run a driver in that situation to determine if he has a warrant.

Although this is dictum, because it does not go directly to the holding / ruling in the case, I

believe an officer can rely on this dictum until the Illinois Supreme Court rules differently.

More Fun "dictum" Dictum is not the ruling / holding of the case -- but it can be important information for officers.

Another nice bit of "dictum" in the Hernandez case is the Court of Appeals “spanking” the trial

court for failing to follow precedent. The concurring judge said specifically, "It is the absolute

duty of the circuit court to follow the decisions of the appellate court." [citing In re R.C. 195 Ill.

2d 291 (2001)]

The reason I like this is that many judges do not Like "Barnes" stops (stopping a car because the

registered owner is suspended), so these courts simply say that they are not going to follow

District 2 Court of Appeals decisions like Barnes and Lake in the Hills. These trial courts should

/ must be reminded of the order by District 2 that trial courts MUST follow District 2 precedents.

The Rules

So to recapitulate -- here are the rules (I believe) –

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1. If there is one registered owner -- and that owner is suspended or revoked -- an

officer may stop the car without pulling up to determine gender, etc.

2. If after the stop, the driver turns out not to be the registered owner, the officer

may still ask the driver for a license. If the driver says he / she does not have it or

does not have one, the officer may hold the driver to determine his / her status.

3. If the driver is not the registered owner and has a license, the officer may still

check the driver for warrants (at least until the Supreme Court rules differently).

4. If there are two registered owners, you must pull up to see if the driver matches

the description of the suspended or revoked person. If you are not sure, you must

do a pretext / traffic stop.

One final comment Frankly, the decision here surprised me a little bit. I’m not sure that I have ever seen a case

where an officer can hold a person after reasonable suspicion has dissipated. If the case is

appealed to the Illinois Supreme Court, we might get a different opinion.

My suggestion? In cases such as these, always try to find a legitimate traffic offense also as a

back-up rationale for the stop.

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Officers may stop a vehicle on reasonable suspicion that the driver committed a traffic

offense

Some courts (attorneys and officers) believe that officers must have probable cause to believe the

driver of a vehicle has committed a traffic offense in order to stop the driver of the vehicle

I have often tried to explain to officers that they do not have to have probable cause to stop a

vehicle for a traffic offense. They only need reasonable suspicion. People v Smith, 172 Ill.2d 289

(1996).

In that context, the Illinois Supreme Court just decided a big case affecting patrol officers,

People v Hackett.

Facts

First the facts -- that occurred in 2008.

Basically, Hackett was in the right lane and crossed briefly into the left lane. Hackett then briefly

crossed the striped dividing lines on the right twice with his right tires. In both instances Hackett

only crossed the line momentarily. The officer stopped Hackett and determined he was drunk

and revoked.

Illinois Court of Appeals Opinion

In 2010 the Illinois Court of Appeals ruled that the precedent, Smith, above, required that in

order to stop a vehicle the vehicle must drive "for some appreciable distance in more than one

lane of traffic."

Illinois Supreme Court Opinion

The Illinois Supreme Court reversed, ruling that the Court of Appeals had misinterpreted Smith.

The Illinois Supreme Court ruled that Hackett's driving did create reasonable suspicion to stop

Hackett’s vehicle stating, "We hold that the officer in this instance, at a minimum, was justified

in conducting an investigatory stop of [Hackett's] vehicle."

How much time do officers have to complete a traffic stop? People v Wofford

There are generally only a couple of “scope” issues that officers must be aware of after they have

made a lawful traffic stop of a vehicle.

The most important is time.

The United States Supreme Court relatively recently ruled that the main scope issue during a

traffic stop is time. Illinois v Caballes, 543 US 405 (2005).

In Caballas, an officer walked his drug dog around Caballas’ car during a traffic stop. The dog

hit on the trunk. Officers searched the trunk and discovered drugs.

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The Illinois Supreme Court ruled that the officer went beyond the scope of a traffic stop by

walking the dog around the car (without any reasonable suspicion).

The United States Supreme Court reversed the Illinois Supreme Court ruling that the only scope

issue during a traffic stop is time. That is, basically, did the dog hit on the trunk within the time it

takes to write a traffic ticket.

In a companion case to Caballes, Illinois v Harris, the Court ruled that officers may obtain the

identification of passengers (but cannot require the identification) and run them for warrants as

long as the officer can complete this exercise in the time it takes to complete the traffic stop.

So as a result of Caballes and Harris, officers may “run” passengers, ask questions of the

occupants and even ask for consent to search as long as these matters can be completed within

the time it takes to complete a normal traffic stop.

The next question is, in the context of Caballes, what have the Illinois courts said about the time

issue?

In one case, People v Baldwin, 904 NE2d 1193 (2009), the Illinois Court of Appeals ruled that

14 minutes was too long to write one ticket. In that case, the court ruled that there was no

reasonable suspicion to believe that the vehicle contained drugs. The drug dog hit on the vehicle

14 minutes after the stop. The crime-related evidence in the vehicle was suppressed.

That brings me to an interesting case recently decided by the Illinois Court of Appeals -- People

v Wofford.

In Wofford, an officer stopped a vehicle because Wofford, the driver, was driving too close to the

vehicle in front of him.

7 minutes after the stop the officer found out that Wofford had an FBI number. The officer then

asked Wofford if he had been arrested. Wofford said he had been arrested for fighting and 2nd

degree murder.

At about 9 ½ minutes the officer notified dispatch that he, the officer, had given dispatch the

wrong FBI number for Wofford . The officer then gave dispatch the correct number.

The officer asked Wofford if he had ever been arrested for any marijuana offenses. Wofford said

no, that he did not smoke marijuana.

The officer then asked Wofford to close his eyes. The officer saw tremors in the eyes (which

may indicate marijuana use).

At about 12 minutes, Wofford refused to consent to the search of his car.

At about 14 minutes, 25 seconds the dispatcher began to recite Wofford’s lengthy criminal

history, including the fact that Wofford had been arrested on a marijuana charge a couple of

months earlier.

After about 17 minutes a drug dog hit on the vehicle. After about 20 minutes, the officer found

many bags of cocaine and an illegal handgun in the car.

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The trial court ruled that the officer prolonged the duration of stop beyond a traffic stop.

Therefore the evidence was suppressed.

The Illinois Court of Appeals reversed, ruling that the “duration of the stop was not

unreasonable.” Therefore the evidence was admissible.

Suggestions related to traffic stops – Time / Scope Issues

1. If you do not have reasonable suspicion to believe there are drugs in the vehicle, you must

develop your theory to search (Terry , PC, consent, etc.) relatively quickly if you want to

search the car during the stop. (see Baldwin, above)

2. If you don’t have reasonable suspicion to believe there are drugs in the vehicle and you

want to ask for consent to search, you should wait till after you have handed back the

driver’s paperwork, license, and ticket. That way there is normally no longer a seizure, so

there is no time problem. People v Cosby, 898 NE2d 603 (2008)

3. If you order the driver out of the car after returning his paperwork and obtaining consent,

you have created a new seizure. Since it is without reasonable suspicion, the evidence

will be suppressed.

4. If you have a hunch, but no reasonable suspicion, that the vehicle contains drugs, and if

you obtain consent during the traffic stop, you must obviously complete the dog sniff or

the search relatively quickly – as you are under severe time constrictions to locate the

evidence. If you decide to do this, try to get a back-up officer to conduct the dog sniff or

the search, while you complete the paperwork.

5. A rule of thumb for the present is to try to get the traffic stop completed in 10-12 minutes

if you can, if you are only giving one ticket. If there is more than one violation that you

are giving tickets on, you will probably be given more time. You cannot get more time

because your computer is down or you are having other problems unrelated to the

reasonable suspicion issue.

6. If you develop – or are developing – reasonable suspicion, the courts will give you more

time. (See Wofford, above, where the court gave the officer 17 minutes as the officer was

constantly obtaining more suspicion.)

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Handcuffing suspects before Terry searches and during a Terry or traffic stop

It has come to my attention that officers are taught to handcuff before they frisk (Terry search)

someone.

The term frisk / pat-down had its constitutional origins with the case of TERRY V OHIO.

Terry involved an officer named McFadden who saw Terry and some other guys casing a place

to rob it. McFadden, without probable cause, grabbed Terry and spun him around. McFadden

then frisked Terry and discovered a weapon.

The United States Supreme Court for the first time ruled that an officer does not have to have

probable cause to stop and frisk – just reasonable suspicion.

I have asked attorneys who believe that suspects detained on reasonable suspicion may be

handcuffed and then frisked for a case supporting that proposition.

No one has yet sent me one. No one.

Which brings me to the recent case of People v Surges – Surges was a front seat passenger in a

car stopped for failure to stop at a stop sign. Five officers arrived at the scene. An officer asked

the driver to exit the car. When it was determined that the driver did not have a license, he was

arrested. The officers then decided that they would search the vehicle under the inventory

doctrine.

One back seat passenger was removed from the vehicle and handcuffed for “officer safety.” An

officer then ordered Surges from the car. The officer told Surges to walk backward to the officer.

The officer then handcuffed Surges. During a subsequent frisk the officer discovered a weapon

in the waistband of Surges’ pants.

The officer stated that he handcuffed Surges because there had been a lot of gang violence in the

area and he felt a “heightened level of concern for his safety with every traffic stop in the area.”

“The trial court found that the area was a war-like zone and likened it to Afghanistan or Iraq,

before concluding that the handcuffing of defendant was inconsequential because the officer

would have discovered the handgun in the defendant’s waistband during the pat down search

without being handcuffed. On this basis, the trial court denied defendant’s motion to suppress.”

The Illinois Court of Appeals reversed, ruling that when the officer put Surges in handcuffs,

Surges was arrested. The court then ruled the officers were without probable cause to arrest.

Therefore the evidence was suppressed.

Most officers, I believe, would do the same thing these officers did (and frankly, I wouldn’t

blame them).

As I mentioned above, when I bounced the issue off of a number of attorneys, some of whom

were officers, most said the technique was constitutional, but none of the attorneys could give

me a case on point to support their position.

One attorney who happened to be an officer wrote the following to me:

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“Dale…I agree with you. In my opinion, the “officer safety” justification for

automatically handcuffing someone is a questionable move, unless you have articulable

reasonable circumstances that would justify it (outside of PC to make the arrest). It has

become a common practice. **** Obviously, any evidence and/or statements obtained

during this time (w/o Miranda) would be [suppressed], but overall, I can tell you that I

have seen officers do this and when they are asked about it, they have said the typical,

‘that’s how I was trained’….don’t know if this is true or not.

It happens a lot on calls such as bar fights where you have numerous people who are

yelling and/or pissed off and, even though the officer has no statements, nor does he/she

even know what happened or if the person is even involved, they will put them in cuffs

until they figure out what happened. I know it’s a more violent situation, but it wouldn’t

take a defense attorney much punch through the justification, unless the officer can

specifically say how HE or someone else was in immediate threat situation…”

I do not want to get officers killed.

On the other hand, I do not want to get officers figuratively killed in court, especially if the

weapon turns out to be the murder weapon in an important case.

First let me say, I believe beyond any doubt that officers may handcuff a suspect during a traffic

stop or TERRY stop if the officer has reasonable suspicion to believe the suspect is violent or

that the suspect has committed a “serious” crime. I believe the case law is clear on that point in

Illinois.

I do not believe the courts are ever going to allow officers to handcuff suspects who are simply

in a high crime area and are stopped for a traffic violation.

Is there a way here to find a compromise solution to this safety problem? I would like to try this

one. Let’s say the officers, like in this case, saw a bulge in the suspect’s waistband. Can they

position a couple of officers around the suspect and have a third officer hold the suspect’s hands

folded behind his neck or have him put his hands on a car while he frisks him?

A second suggestion is this -- if you have officers there who could provide safety, take the cuffs

off before doing anything constitutionally salient (like asking for consent to search, etc.) Tell the

suspect he is not under arrest – and make sure he acknowledges that he understand. Then try to

get consent and frisk him whether or not he consents. If he is a gang member, you should easily

be able to justify your reasonable suspicion to believe he is armed in your reports and in your

testimony. What I am saying only applies to traffic and Terry stops – not consensual encounters.

During consensual encounters you can only search with consent.