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Criminal Law FLASHPOINTS March 2021

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

Appellate Courts Affirm Emergency-Aid Searches

In early 2021, the First District and Second District Appellate Courts both affirmed warrantless entries into defendants’ residences under the emergency-aid exception. The emergency-aid exception to the Fourth Amendment permits police to enter a home without a warrant to give emergency assistance to an injured occupant or to protect an occupant from imminent injury. Brigham City, Utah v. Stuart, 547 U.S. 398, 164 L.Ed.2d 650, 126 S.Ct. 1943, 1947 (2006).

The exception involves a two-part test. First, the police must have reasonable grounds to believe that there is an emergency that requires the intrusion. Second, there must be a reasonable basis, approximating probable cause, to associate the emergency with the area searched. The search is based on the objective circumstances of the situation instead of the subjective motives of the officers. People v. Lewis, 363 Ill.App.3d 516, 845 N.E.2d 39, 300 Ill.Dec. 618 (2d Dist. 2006). The existence of an emergency is determined by the circumstances known to the officers at the time of the entry. People v. Ferral, 397 Ill.App.3d 697, 921 N.E.2d 414, 421, 336 Ill.Dec. 800 (2d Dist. 2009).

In People v. Aljohani, 2021 IL App (1st) 190692, the First District upheld a warrantless entry by the police into the defendant’s apartment to investigate a neighbor’s concern about yelling and wrestling in the apartment. In Aljohani, the defendant’s downstairs neighbor called 911 and told police that he had heard an argument in Arabic and wrestling in the apartment above him. The neighbor said that he heard someone say, “are you ok, get up,” and the wrestling stopped. 2021 IL App (1st) 190692 at ¶8. The neighbor spoke to the defendant, who said the victim (whom the defendant considered a brother) was in the bathroom. 2021 IL App (1st) 190692 at ¶¶8, 21.

The police asked the defendant if they could talk to his brother, but the defendant said his brother was sleeping. The neighbor again insisted to the police that someone was injured, so the police knocked again on the defendant’s door. After not receiving an answer, the police drove to the alley and saw that the gate was open. The police went into the yard and saw that the garage door and the apartment building’s side door were both open. The police made their way back up to the second-floor apartment, where they discovered the back door was open. After knocking again and not receiving an answer, the police entered the defendant’s apartment and found the victim, who had been stabbed to death, unresponsive on a mattress, with the defendant no longer there. 2021 IL App (1st) 190692 at ¶¶9 – 10. The police also recovered a knife that contained both the victim’s and the defendant’s DNA. 2021 IL App (1st) 190692 at ¶5. The defendant was convicted of murder. 2021 IL App (1st) 190692 at ¶1.

The trial court denied a motion to suppress, and the appellate court affirmed. The appellate court held that the emergency-aid exception applied because of the 911 call made by the neighbor, whose credibility could be assessed; the neighbor had no motive or bias against the defendant; the neighbor heard a loud argument followed by wrestling; and the defendant did not answer the door the second time after answering it earlier. Therefore, it was reasonable for the police to infer that an injured person was completely alone in the apartment. The Aljohani court noted that “[i]t would have been a dereliction of duty for the officers to have left all alone a person who was, reportedly, injured to the point where he could not stand up and where at least two people were worried if he was ‘ok’ — those two people being defendant and the neighbor.” 2021 IL App (1st) 190692 at ¶51.

The Aljohani court also found that the police had a reasonable belief that the emergency was associated with the defendant’s apartment because all the events described by the neighbor occurred in the apartment. Additionally, the gates and doors that led to the apartment were all open. Therefore, the police had a reasonable basis to associate the emergency with the defendant’s apartment. 2021 IL App (1st) 190692 at ¶58.

Next, in People v. Kulpin, 2021 IL App (2d) 180696, the Second District likewise affirmed a warrantless search under the emergency-aid exception when the search led to evidence that was used to convict the defendant of murder. In Kulpin, a police officer was dispatched to an apartment for a missing person report. A concerned mother had not seen or spoken to her daughter for a few days. 2021 IL App (2d) 180696 at ¶7. The officer did not see the victim’s car in the parking lot at her apartment building, and no one answered the door. The officer later met with the victim’s mother. 2021 IL App (2d) 180696 at ¶8.

The mother told the officer that her daughter and the defendant shared a child, of whom the mother had custody. The mother said that the defendant dropped the child off at her residence a few nights earlier, which was unusual because she and the defendant did not get along. 2021 IL App (2d) 180696 at ¶9. The mother told the officer that her daughter’s relationship with the defendant was marred by domestic violence. The mother also explained that her daughter’s work supervisor was worried because the daughter had not shown up for work. 2021 IL App (2d) 180696 at ¶¶10 – 11.

The officer, accompanied by two sergeants, returned to the defendant’s apartment, where they located the victim’s car. The officer knocked on the apartment door and heard movement inside. The defendant eventually answered the door. The police explained that they were doing a well-being check on the victim. The defendant was asked to step outside into the hallway and appeared to be under the influence of drugs. The defendant told the police that he had taken the victim to work that morning in an Uber. The officer told him that she had not been at work. The defendant said that the victim was not in his apartment. The officer told the defendant that it was important for them to find the victim and they needed to make sure that she was not inside. 2021 IL App (2d) 180696 at ¶¶12 – 13.

The defendant then admitted that “[t]here’s something in the closet that will put me in jail for a very long time.” 2021 IL App (2d) 180696 at ¶14. After being asked what it was, the defendant claimed there was marijuana and a crack pipe in the apartment. The defendant denied permission to search. The police decided to enter the apartment without a warrant to conduct a well-being check on the victim. 2021 IL App (2d) 180696 at ¶¶14 – 15. The police opened a closet door and found the victim’s body wrapped in a shower curtain and a blanket. 2021 IL App (2d) 180696 at ¶22.

The trial court denied the defendant’s motion to suppress, and the Second District affirmed. The Kulpin court said that it was not until the police officers assimilated all the information known to each of them that they determined there was an emergency involving a possible drug overdose. 2021 IL App (2d) 180696 at ¶45. The court emphasized that it is not the amount of time that elapses from the time of a first report about a missing person to the time of the warrantless entry that determines whether an emergency exists but rather the totality of the circumstances known to the police when they make the entry. 2021 IL App (2d) 180696 at ¶49.

The Kulpin court concluded that the emergency-aid exception applied in this situation. The court based its conclusion on the suspicious circumstances regarding the victim’s disappearance, the history of domestic violence with the defendant, the reappearance of the victim’s car after the police returned to the parking lot, the defendant being under the influence of drugs, and the defendant’s lies about dropping the victim off at her work. Additionally, the defendant admitted there was something in the closet that could put him in jail for a long time. 2021 IL App (2d) 180696 at ¶¶51 – 52. Therefore, the circumstances known to the officers at the time of their entry permitted them to enter the defendant’s apartment under the emergency-aid exception. 2021 IL App (2d) 180696 at ¶55.

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.


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

Illinois Supreme Court Interprets Supreme Court Rule 431(b)

On February 19, 2021, the Illinois Supreme Court filed an opinion in People v. Birge, 2021 IL 125644, an appeal raising the question of how courts should interpret the jury admonishment requirements of Illinois Supreme Court Rule 431(b) and evidentiary requirements prior to the issuance of a restitution order.

Background

The defendant was convicted of burglary (720 ILCS 5/19-1(a), 5/19-1(b)) and arson (720 ILCS 5/20-1(a)(1), 5/20-1(c)). The trial court separated the venire into two groups of sixteen during voir dire and admonished the groups separately on the principles of Rule 431(b). Id. Specific to the first group, the trial court stated, in part:

[THE COURT:] A person accused of a crime is presumed to be innocent of the charge against him. The fact that a charge has been made is not to be considered as any evidence or presumption of guilt against the Defendant.

The presumption of innocence stays with the Defendant throughout the trial and is not overcome unless from all of the evidence you believe the State proved the Defendant’s guilt beyond a reasonable doubt.

The State has the burden of proving the Defendant’s guilt beyond a reasonable doubt. The defendant does not have to prove his innocence. The Defendant does not have to present any evidence on his own behalf and does not have to testify if he does not wish to. If the Defendant does not testify, that fact must not be considered by you in any way in arriving at your verdict.

So by a show of hands, do each of you understand these principles of law?

PROSPECTIVE JURORS: (All hands raised.)

THE COURT: Okay. And do each of you accept these principles of law?

PROSPECTIVE JURORS: (All hands raised.) 2021 IL 125644 at ¶4.

At this point, defense counsel “also questioned these same prospective jurors, asking whether they understood that defendant is presumed innocent and that the State had to prove defendant guilty beyond a reasonable doubt.” 2021 IL 125644 at ¶5. After all the prospective jurors raised their hands, nine of these sixteen were selected for trial. Id.

Similarly, the trial court asked the second group of prospective jurors, “By a show of hands, do each of you understand these principles of law,” and all sixteen prospective jurors raised their hands. 2021 IL 125644 at ¶6. Once again, defense counsel asked this second group the identical questions that he asked of the first group, and all sixteen prospective jurors raised their hands. Id. Three of these sixteen were selected for trial. Id.

At trial, testimony revealed that on May 28, 2016, a store known as Chief City Vapor was on fire. Id. Upon one officer’s arrival, the officer “noticed that smoke and flames were coming from the building, the door was ajar, and broken glass lay scattered on the floor of the entryway.” 2021 IL 125644 at ¶7. The officer also noticed a “trail of merchandise outside the store.” Id. Testimony from the store owner also revealed that the store’s cash register had approximately $100 plus change the night of the fire. Id. Additionally, the store owner testified that because of the fire damage, he “had to gut the entire building down to pulling studs, pulling insulation, furnace,” and that “everything was lost.” 2021 IL 125644 at ¶10. Although the defendant testified that he was not guilty and that he never even stepped foot inside the store that night, the jury returned a guilty verdict as to the charges of burglary and arson. 2021 IL 125644 at ¶13.

During the sentencing hearing, the court admitted a presentence investigation report (PSI) provided by the state. 2021 IL 125644 at ¶14. The report detailed four of the defendant’s prior felony convictions: aggravated criminal sexual abuse; residential burglary; unlawful possession of a controlled substance; and theft. Id. Although the PSI noted that the defendant “may have difficulty paying restitution,” the PSI was nevertheless entered in its entirety without objection or response. Id. The defendant was then sentenced to 24 years and 6 months’ imprisonment, as well as ordered to pay $117,230 in restitution. 2021 IL 125644 at ¶15. The defendant appealed under the plain error doctrine, arguing that the court erred in “group[ing] the principles enunciated in [Rule 431(b)] into one statement” and that the court “erred in ordering restitution without sufficient evidentiary support or, in the alternative, that his trial counsel was ineffective for failing to object to the State’s recommended restitution order.” 2021 IL 125644 at ¶16. The appellate court rejected both of the defendant’s arguments. Id. The Supreme Court affirmed on the Rule 431(b) issue but reversed and remanded regarding the restitution order. Id.

No Plain Error as to the Trial Court’s Admonishment of the Jurors

Rule 431(b) provides:

The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant’s decision not to testify when the defendant objects.

The court’s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section. S.Ct. Rule 431(b).

Additionally, the plain error doctrine provides that

a reviewing court may consider an unpreserved error if (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. 2021 IL 125644 at ¶24, citing People v. Piatkowski, 225 Ill.2d 551, 870 N.E.2d 403, 410 – 411, 312 Ill.Dec. 338 (2007).

In applying both rules, the Supreme Court found that while the defendant had technically forfeited both of his arguments for not having raised them at trial, the plain error doctrine allows the court to review the issue de novo “to assess if a clear or obvious error occurred.” 2021 IL 125644 at ¶24, citing People v. Sebby, 2017 IL 119445, ¶49, 89 N.E.3d 675, 417 Ill.Dec. 756.

As to the issue of admonishment, the court relied heavily on its decision in People v. Zehr, 103 Ill.2d 472, 469 N.E.2d 1062, 83 Ill.Dec. 128 (1984). In Zehr, the Supreme Court held that “it was error not to submit to the prospective jurors the questions tendered by defense counsel during voir dire about [the four principles of Rule 431(b)].” Birge, supra, 2021 IL 125644 at ¶30, citing Zehr, supra, 469 N.E.2d at 1064. Further, the Zehr court held that it was insufficient for the trial court to merely ask jurors if they would agree to “follow the law.” 469 N.E.2d at 1064. Importantly, the Birge court noted a distinction between Zehr and the immediate case, namely that the trial court in Zehr had failed to specifically articulate to the jurors the four principles of Rule 431(b). As noted by the Supreme Court, the trial court in the present case did specify the four principles of Rule 431(b), which was not challenged by the defendant — the defendant merely challenged that the trial court erred by “group[ing] the principles enunciated in [Rule 431(b)] into one statement.” Birge, supra, 2021 IL 125644 at ¶16. Ultimately, the court concluded that simply grouping the principles by formulating them into a single sentence nonetheless meets the requirement of Rule 431(b) that the principles be specifically outlined. Additionally, the Supreme Court held that the trial court met the methodology requirement of Rule 431(b) (i.e., that the “method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section” (S.Ct. Rule 431(b))) by specifically asking the jurors, “do each of you understand these principles of law?” and “do each of you accept these principles of law?” 2021 IL 125644 at ¶4. For these reasons, the Illinois Supreme Court held that the way the trial court admonished the jurors did not constitute plain error.

Significantly, the Supreme Court held that Rule 431(b) does not require a trial court to admonish the jury in a one-question-per-principle fashion and is satisfied by the grouping of the rule’s principles into a single sentence. While the defendant argued that such a grouping poses a danger of confusing the jurors as to the actual principles of the rule, the Supreme Court disagreed, holding instead that these are “bedrock principles” and “concepts that are familiar to the average layperson and relatively easy to understand.” 2021 IL 125644 at ¶40.

Plain Error as to the Trial Court’s Restitution Order

As to the restitution order, the Illinois Supreme Court held that plain error did occur. As noted by the court, “the State concedes both that (1) the trial court erred in ordering defendant to pay the amount of restitution imposed without any evidentiary basis for it and (2) defendant was denied a fair sentencing hearing because of the error.” 2021 IL 125644 at ¶45. In conducting its own analysis, the Supreme Court specifically took issue with the fact that the trial court did not inquire as to the “actual out-of-pocket expense, losses, [and] damages” suffered by the store owner, and so held that plain error existed when the trial court nonetheless issued its order that the defendant pay $117,230 in restitution. 2021 IL 125644 at ¶53, citing 730 ILCS 5/5-5-6(b).

Notwithstanding the fact that defense counsel never objected to the initial PSI that recommended that the defendant pay restitution, nor did defense counsel object to the final restitution order, the Supreme Court nevertheless held that the defendant was correct in asserting that the issue was reviewable under the plain error doctrine, and further that the defendant was correct in his argument that the order itself constituted plain error. Perhaps importantly, the Supreme Court noted that its finding that the restitution order was plain error “makes it unnecessary to address defendant’s remaining claim that his trial counsel rendered ineffective assistance in failing to object to the restitution order.” 2021 IL 125644 at ¶54. The Supreme Court seems to have held that, because it ultimately ruled in favor of the defendant as to the restitution order, there was no reason to make a separate finding of defense counsel’s ineffectiveness for failing to raise the same objection at trial or in a posttrial motion.

Conclusion

The Illinois Supreme Court’s holding on the issue of the Rule 431(b) requirements appears to give trial courts some leeway in the methodology of admonishing prospective jurors. Conversely, the Supreme Court’s determination that a restitution order constitutes reversible plain error even if defense counsel raises no objection or posttrial motion against the order appears to allow defendants the opportunity to independently raise the issue on appeal, without any consequence to their counsel.

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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