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Criminal Law FLASHPOINTS June 2020

June 15, 2020Print This Post Print This Post

Matthew R. Leisten, Winnebago County State’s Attorney’s Office, Rockford
815-319-4700 | E-mail Matthew R. Leisten

Recent Rulings on Flight Cases in Illinois Appellate Courts

In Illinois v. Wardlow, 528 U.S. 119, 125, 145 L.Ed.2d 570, 120 S.Ct. 673 (2000), the U.S. Supreme Court held a Terry stop (see Terry v. State of Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968)) was justified when defendant fled unprovoked from police in a high-crime area of Chicago. In 2019 and 2020, the Illinois appellate courts have ruled on several “flight” cases with noticeably different views from the respective panels. This article summarizes those recent cases in regard to their flight analysis.

The Wardlow Court stated that if an officer approaches a person without reasonable suspicion or probable cause, that person has the right to ignore the police and go about his or her business. 120 S.Ct. at 676. Any refusal to cooperate, without more, does not justify a detention or seizure. Id. However, unprovoked flight is not a mere refusal to cooperate. Nervous and evasive behavior can be a pertinent factor in determining reasonable suspicion. 120 S.Ct. at 674. Innocent explanations for running from the police do not establish a Fourth Amendment violation. 120 S.Ct. at 677.

An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. 120 S.Ct. at 676. The Illinois Supreme Court declined to limit Wardlow’s ruling under the Illinois state constitution. People v. Thomas, 198 Ill.2d 103, 759 N.E.2d 899, 906, 259 Ill.Dec. 838 (2001).

A person who runs away from an unlawful Terry stop is not resisting or obstructing a peace officer. In California v. Hodari D., 499 U.S. 621, 113 L.Ed.2d 690, 111 S.Ct. 1547, 1550 (1991), the U.S. Supreme Court held that a seizure does not occur via a show of authority unless the subject yields to that seizure.

In People v. Thomas, 2019 IL App (1st) 170474, 129 N.E.3d 584, 432 Ill.Dec. 366, the First District Appellate Court reversed the suppression of evidence when the defendant was seen by police in front an apartment building and then, after fleeing into the building, seen handing a gun to a friend. 2019 IL App (1st) 170474 at ¶¶1, 4. A Chicago police officer testified that he was patrolling an area due to gang activity and saw the defendant loitering around in front of an apartment building. The officer had made multiple arrests in that area for drugs and gangs. 2019 IL App (1st) 170474 at ¶4. The defendant and his friend ran into the building. The officer did not see the defendant holding a gun. The officer pursued the defendant into the building after announcing his presence when he left his undercover vehicle. 2019 IL App (1st) 170474 at ¶¶4 – 5.

The officer testified that he opened the door and entered a common area, where he saw the defendant with a firearm in a hallway. The defendant handed the firearm to his friend and ran to the second floor. The officers recovered a .380 firearm and charged the defendant with aggravated unlawful use of a weapon. 2019 IL App (1st) 170474 at ¶6. The trial court suppressed the evidence on the basis that the defendant was not doing anything that would justify the police stopping him. 2019 IL App (1st) 170474 at ¶12.

The Thomas court reversed and cited Wardlow in its analysis, noting that a person’s unprovoked flight upon seeing the police in an area known for crime is suggestive of wrongdoing and may justify the police suspecting that person of criminal activity, which would warrant further investigation. Flight that may have an innocent explanation does not vitiate the officer’s right to detain that person to resolve any ambiguity. 2019 IL App (1st) 170474 at ¶19, citing Wardlow, supra, 129 N.E.3d at 676. The Thomas court found that the defendant’s flight was prompted by the police presence and potential encounter. The court said that since the defendant did not testify at the suppression hearing, it did not have any evidence for his reason to flee. 2019 IL App (1st) 170474 at ¶20. The court also held that the defendant was not seized when he was pursued into the building. 2019 IL App (1st) 170474 at ¶21.

The court also concluded that the defendant did not have an expectation of privacy in the apartment building’s unlocked common area. 2019 IL App (1st) 170474 at ¶25. The court stated that the defendant did not present evidence showing that this area was constitutionally protected or an area where he would have an expectation of privacy. 2019 IL App (1st) 170474 at ¶30.

The court ultimately held that in addition to the flight, the police had probable cause to arrest the defendant because of his handing the gun to his friend upon seeing the police in the common area and then fleeing upstairs. 2019 IL App (1st) 170474 at ¶38. The court noted that the officer’s arrests for gangs and drugs in the area and being on patrol for recent gang activity were additional factors for the officer to believe that the defendant illegally possessed a firearm. Id.

In People v. Horton, 2019 IL App (1st) 142019-B, 142 N.E.3d 854, 436 Ill.Dec. 453, the First District Appellate Court upheld the suppression of a gun after police saw the defendant with a “metallic object” and chased him into a house. In Horton, Chicago police officers saw the defendant standing on a porch and look in their direction. One of the officers saw a metallic object in the defendant’s waistband. The police exited their vehicle, and the defendant “rushed inside the house.” 2019 IL App (1st) 142019-B at ¶15. One of the officers found a set of keys and used them to unlock the door. 2019 IL App (1st) 142019-B at ¶¶14, 15. The officers found the defendant crouched next to a bed and detained him. A handgun was found under a mattress that was similar to the object that was seen in the defendant’s waistband. The defendant told the police that he did not live at the house and that the gun was not his. 2019 IL App (1st) 142019-B at ¶¶15, 16. The defendant was charged with aggravated unlawful use of weapons.

The Horton court said that even if there was probable cause to believe that the defendant had a gun — which it did not find — the officer still lacked probable cause to believe that the defendant was committing a crime. 2019 IL App (1st) 142019-B at ¶¶57, 58. The court reached this conclusion by determining that there was nothing in the record suggesting that the officer had reason to believe that the defendant was not standing in his own abode, as required under the statute. 2019 IL App (1st) 142019-B at ¶59.

The court rejected the state’s contention that the defendant’s flight gave the police probable cause to arrest. 2019 IL App (1st) 142019-B at ¶67. The court addressed Wardlow and found that the circumstances of the defendant’s flight were distinguishable from the flight in Wardlow. The court found that the evidence did not support the officer’s conclusion that the defendant had a gun or that a crime was being committed; therefore, the flight alone was insufficient by itself to justify probable cause to arrest him. Id. When the officers were inside, they did not observe any additional facts that would have led to probable cause to arrest the defendant. 2019 IL App (1st) 142019-B at ¶72.

In People v. Eyler, 2019 IL App (4th) 170064, the Fourth District Appellate Court held that the police were justified in attempting a Terry stop on a defendant who fled from them on his bicycle after he matched the description of a man acting erratically. 2019 IL App (4th) 170064 at ¶35.

In Eyler, a person called 911 to report that a man with a blue sweatshirt riding a bicycle was yelling profanities and acting erratically. The police located the defendant, who matched the caller’s description, and tried effectuating a Terry stop. The defendant fled from the police on his bicycle, ignoring orders to stop, but was eventually apprehended and searched. The police found methamphetamine on the defendant’s person. 2019 IL App (4th) 170064 at ¶¶1, 6.

The Eyler court held that the tip to the police combined with the man’s unprovoked flight gave the police reasonable suspicion to believe he had committed disorderly conduct. 2019 IL App (4th) 170064 at ¶41. The Eyler court concluded that the police had the right to conduct a Terry stop once the defendant fled from them. Id.

The Eyler court also wrote that it disagreed with earlier First District cases that had held that flight alone was insufficient for reasonable suspicion that someone has committed or is about to commit a crime. The Eyler court believed those cases (cited within) were inconsistent with the Illinois Supreme Court’s language in Thomas, supra, 759 N.E.2d at 904 – 905, that “[u]nprovoked flight in the face of a potential encounter with police may raise enough suspicion to justify the ensuing pursuit and investigatory stop.” 2019 IL App (4th) 170064 at ¶53.

This statement from the Eyler decision would be contrasted with People v. Craine, 2020 IL App (1st) 163403, ¶33, in which the First District stated that “this court has consistently held that running from police is not sufficient to establish even the reasonable suspicion necessary to effectuate an investigatory stop under Terry.

In Craine, the First District Appellate Court found that the defendant’s flight into his home after looking toward a police sergeant did not give the police probable cause to enter his home and arrest him. 2020 IL App (1st) 163403 at ¶30.

A Chicago police sergeant heard gunshots coming from a nearby area. On his way to the area, the sergeant saw the defendant and another person standing on the porch of a home. 2020 IL App (1st) 163403 at ¶10. The defendant looked in the sergeant’s direction and ran inside the house while holding his hip. The sergeant yelled, “police, stop,” but the defendant still ran inside. Id. The sergeant believed that the defendant might have a weapon because of the gunshots he heard in the area. The sergeant ran after the defendant, forced his way through a door, and detained the defendant. 2020 IL App (1st) 163403 at ¶¶10 – 11. After being granted consent to search, police found a gun in the defendant’s bedroom and charged him. 2020 IL App (1st) 163403 at ¶18.

The Craine court found that the defendant’s flight was insufficient to give rise to probable cause because the officer could not reasonably believe that the defendant was committing a crime. 2020 IL App (1st) 163403 at ¶36. The court rejected the state’s contentions that the flight was unprovoked because the record showed that the sergeant did not attempt a valid Terry investigatory stop or that the defendant fled in response to the sergeant’s attempts to effectuate a Terry stop — which would have provided probable cause to enter his home and arrest him. 2020 IL App (1st) 163403 at ¶39. The record suggested that the defendant began to flee inside his home before the sergeant yelled at him to stop and before an investigatory stop was attempted. Id.

The court also emphasized that a Terry stop would not have been justified anyway because the defendant was not acting suspiciously and was not on the street from which the shots were heard. Therefore, his flight would not amount to even reasonable suspicion. 2020 IL App (1st) 163403 at ¶47.

In People v. Cherry, 2020 IL App (3d) 170622, ¶40, the Third District Appellate Court held that the police had reasonable suspicion to seize a defendant, whom they had seen holding his waistband and who ran away from them in a high-crime area after the police stopped him because of a tip about men in a car pointing a gun at people. The Joliet police had detained the defendant and two other men who were near the suspect vehicle because they believed the defendant was carrying a gun. 2020 IL App (3d) 170622 at ¶7. The defendant ran away after an office tried patting him down for weapons. The police tackled the defendant and felt a gun on him, for which he was charged. 2020 IL App (3d) 170622 at ¶8.

The Cherry court referenced Wardlow and found that the defendant’s unprovoked flight standing alone did not provide reasonable suspicion to seize him; however, the unprovoked flight in combination with his holding of his waistband and the tip regarding the vehicle ultimately provided the police with reasonable suspicion to pursue the defendant. 2020 IL App (3d) 170622 at ¶40.

The Cherry court also rejected other Illinois and federal cases that have held that “flight alone is insufficient to establish reasonable suspicion to detain a suspect. . . . Our own supreme court seems to have rejected this notion, however, holding that ‘[u]nprovoked flight in the face of a potential encounter with police may raise enough suspicion to justify the ensuing pursuit and investigatory stop.’ ” [Emphasis in original.] 2020 IL App (3d) 170622 at ¶39, quoting Thomas, supra, 759 N.E.2d at 904 – 905.

Based on the recent holdings on flight, prosecutors and defense attorneys should be cognizant of the circumstances for an arrest that resulted from a police foot chase. A defendant’s actions before and during the flight, police orders, and the reasonableness of the police pursuing the defendant are among the factors for trial courts to consider. In some cases, one of the most important issue for trial courts to determine is whether the flight was “unprovoked.”

Since there is an apparent conflict in the holdings from the Third and Fourth Districts in Cherry and Eyler and the First District in Craine and earlier cases on whether running from the police creates automatic reasonable suspicion, litigators in the other appellate districts are free to argue the decision that they believe is most reasonable. See Sidwell v. Griggsville Community School District 4, 208 Ill.App.3d 296, 566 N.E.2d 838, 840, 152 Ill.Dec. 961 (4th Dist. 1991) (explaining that in absence of Supreme Court decision directly on point, circuit court should follow precedent of appellate court of its district, if such precedent exists; if not, it is to follow precedent of other districts if there is such precedent; if precedent of other districts is in disagreement, circuit court may then choose which precedent it considers to be most nearly correct).

Also, testimony from the police regarding whether an area is a “high-crime area” (such as in Thomas and Wardlow) can be a relevant factor in urban settings, but may not be as important in certain rural or suburban settings.

For more information about criminal law, see FEDERAL CRIMINAL PRACTICE (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


Sami Azhari, Azhari LLC, Chicago & Rolling Meadows
Sergio Lopez, Second-Year Law Student, DePaul University College of Law, Chicago
847-255-2100 | E-mail Sami Azhari

U.S. Supreme Court Narrows Scope on Public Corruption

In a unanimous decision, the U.S. Supreme Court threw out a pair of fraud convictions against former aides of former New Jersey Governor Chris Christie. Kelly v. United States, ___ U.S. ___, ___ L.Ed.2d ___, 140 S.Ct. 1565. The decision is one of several that has come before the Supreme Court on issues involving public corruption.

The Facts

Bridget Anne Kelly, a former aide to Christie, and Bill Baroni, a former Port Authority of New York official, were indicted and ultimately convicted for their role in a scheme to close lanes on the George Washington Bridge to create an epic traffic jam in Fort Lee, New Jersey. The closures were made as retaliation against Mark Sokolich, the Democratic mayor of Fort Lee for his refusal to support Christie’s reelection bid that year, thus sinking Christie’s opportunity of making a run at the White House. David Wildstein, appointed to the Port Authority by Baroni, ordered the Port Authority workers to cut the lanes on the bridge from three to one under the guise that it was part of a fictitious traffic study. The closures stemmed from a leaked e-mail from Kelly that read: “Time for some traffic problems in Fort Lee.” 140 S.Ct. at 1569. “Traffic problems” was an understatement. The closures led to four days of closures, causing a catastrophic problem for commuters.

Convictions and Appeals

While Christie was not charged with a crime, Kelly and Baroni were fired and then prosecuted. They were charged with fraud under federal law, which requires proof that someone lied or schemed to obtain money or property. Specifically, Baroni and Kelly were convicted of wire fraud, fraud on a federally funded program or entity, and conspiracy to commit these crimes. Per federal prosecutors, the property in this case were the two lanes that were shut down, causing the congestion. Kelly and Baroni were both found guilty after jury trials. Both were sentenced to prison. Kelly was allowed to remain free while the case was on appeal, but Baroni had already started his sentence and was subsequently released when the Supreme Court granted certiorari.

The Statutes

Under 18 U.S.C. §1343, it is a crime “to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises [and to] transmit[ ] or cause[ ] to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice.” Similarly, under 18 U.S.C. §666, it is prohibited for an agent of the government to embezzle, steal, or obtain by fraud property that is owned or under the care, custody, or control of that government. The portion of the statute that the Supreme Court focused on and that led to the reversal of the convictions was “obtaining money or property.”

From McNally to McDonnell

Despite the reversal, the Supreme Court spared no words, calling the defendants’ behavior deceptive and corrupt and stating that it abused the power of their office. 140 S.Ct. at 1568. The Supreme Court generally relies on two cases in particular: McNally v. United States, 483 U.S. 350, 97 L.Ed.2d 292, 107 S.Ct. 2875 (1987), and McDonnell v. United States, ___ U.S. ___, 195 L.Ed.2d 639, 136 S.Ct. 2355 (2016).

In McNally, the defendants (one former Kentucky official, one former chairman of the Commonwealth’s Democratic Party, and one other individual) were facing charges of violations of the federal mail fraud statute, 18 U.S.C. §1341. In that case, like many before it, the prosecution advanced a theory that “a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud.” 107 S.Ct. at 2879. Under the same logic, “an individual without formal office may be held to be a public fiduciary if others rely on him ‘ “because of a special relationship in the government” ’ and he in fact makes governmental decisions.” Id., quoting United States v. Gray, 790 F.2d 1290, 1296 (6th Cir. 1986). Under the arguments advanced by the prosecution, a conviction would (and in fact did at both the district and circuit levels) stand if the prosecution could prove that the defendants “devised a scheme . . . to defraud the citizens and government of Kentucky of their right to have the Commonwealth’s affairs conducted honestly.” 107 S.Ct. at 2878. Notwithstanding the upheld convictions, the United States Supreme Court reversed the lower court decisions and held that while “[t]he mail fraud statute clearly protects property rights, [it] does not refer to the intangible right of the citizenry to good government.” 107 S.Ct. at 2879.

As the Supreme Court acknowledged in Kelly, supra, however, “Congress responded to [McNally] by enacting a law barring fraudulent schemes ‘to deprive another of the intangible right of honest services’ — regardless of whether the scheme sought to divest the victim of any property.” 140 S.Ct. at 1571, quoting 18 U.S.C. §1346. This legislative change enacted by Congress echoed Justice Steven’s dissent in McNally, which understood the language of the federal fraud statute as providing for three distinct and wholly separate prohibitions:

[1] any scheme or artifice to defraud, [2] or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, [3] or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article. 107 S.Ct. at 2884 (Stevens, J., dissenting), quoting 18 U.S.C. §1341.

As Justice Stevens went on to explain:

Every court to consider the matter had so held. Yet, today, the Court, for all practical purposes, rejects this longstanding construction of the statute by imposing a requirement that a scheme or artifice to defraud does not violate the statute unless its purpose is to defraud someone of money or property. I am at a loss to understand the source or justification for this holding. 107 S.Ct. at 2884.

In McDonnell, supra, the former Governor of Virginia was convicted in the United States District Court of conspiracy to commit honest services fraud, honest services wire fraud, and Hobbs Act extortion in relation to his acceptance of $175,000 in loans, gifts, and other benefits. To sustain a conviction in McDonnell, the government was required to show that McDonnell committed or agreed to commit an “official act” in exchange for the loans and gifts. Pursuant to 18 U.S.C. §201(a)(3), an official act is “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

The decision by the Supreme Court in McDonnell was one that left the Court content with a limitation on the term “official act” because, in the eyes of the Court, the ruling nonetheless left “ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.” 136 S.Ct at 2375. In fact, in McDonnell, the Court concluded that “[a] jury could, for example, conclude that an agreement was reached if the evidence shows that the public official received a thing of value knowing that it was given with the expectation that the official would perform an ‘official act’ in return.” [Emphasis added.] 136 S.Ct at 2371, citing Evans v. United States, 504 U.S. 255, 119 L.Ed.2d 57, 112 S.Ct. 1881, 1889 (1992). Importantly, this interpretation of the federal bribes statute does not require that the official actually commit an “official act,” so long as there exists sufficient evidence that there existed an understanding that the official would commit an “official act.” Id.

Unlike the recent McDonnell decision, however, the Supreme Court decided to take a much more narrow approach to the federal frauds statute, limiting its use to instances of property fraud or “bribes or kickbacks.” Kelly, supra, 140 S.Ct. at 1571 – 1572. This limiting interpretation does not leave the same “ample room for prosecuting corruption” that the Court preserved in the federal bribe statute in McDonnell, although this was apparently intentional. According to the Court’s unanimous decision in Kelly, “The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify.” 140 S.Ct. at 1571, citing N.J.Stat.Ann. §2C:30-2.


While the Supreme Court was divided in its 1987 construction of the law, the Court held unanimously in the 2020 case that the current interpretation of the federal fraud statute remains proper. Although the prosecution in Kelly argued that “the officials sought to both ‘commandeer’ the Bridge’s access lanes and to divert the wage labor of the Port Authority employees used in that effort,” the Supreme Court disagreed. 140 S.Ct. at 1568. Instead, the Court held that “[t]he realignment of the toll lanes was an exercise of regulatory power.” 140 S.Ct. at 1568 – 1569.

Contrary to the government’s view, the two defendants did not “commandeer” the bridge’s access lanes (supposing that word bears its normal meaning). They (of course) did not walk away with the lanes; nor did they take the lanes from the government by converting them to a non-public use. Rather, Baroni and Kelly regulated use of the lanes, as officials responsible for roadways so often do — allocating lanes as between different groups of drivers.

Despite the Supreme Court’s words condemning the behavior exhibited by Baroni and Kelly, their unanimous decisions in 2020 and 2016 demonstrate that the Court’s application of criminal fraud statutes and their stringent requirement of “obtaining money or property” will not change anytime soon. All justices, regardless of political leanings, agreed that the government failed to meet the requirement of the statute, essentially limiting the prosecution’s reach in public corruption cases. One might wonder that given this textualist approach, whether the result would be different if even the most modest amount of “money or property” would have yielded a different result. For example, say Kelly or Baroni received a $10 Starbucks gift card for their role in the scandal, the Supreme Court would, based on their opinion, have no choice but to affirm the convictions. While this gives rise to potential abuse of power, it places limits on the government’s ability to overreach and charge defendants with inapplicable statutes.

For more information about criminal law, see FEDERAL CRIMINAL PRACTICE (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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