Criminal Law FLASHPOINTS August 2021

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

Second District Reverses Domestic Battery Conviction: Contact Was Not Insulting or Provoking

In People v. Ward, 2021 IL App (2d) 190243, the Second District Appellate Court, in a two-one decision, reversed a domestic battery conviction because it found that the defendant’s push of his wife was not insulting or provoking contact when the wife did not display the typical reactions associated with being insulted or provoked. The Second District also created a split of authority by explicitly disagreeing with the Fourth District’s opinion in People v. Williams, 2020 IL App (4th) 180554, ¶50, 167 N.E.3d 233, 445 Ill.Dec. 556, which held that “insulting or provoking” in 720 ILCS 5/12-3.2(a)(2) refers to the type of contact rather than the victim’s reaction and that the jury should decide whether the contact was insulting or provoking.

In Ward, the defendant responded to his son’s traffic accident scene. The defendant argued with the Geneva police officers — of whom he had been a vocal critic in the past — and his wife stepped between the defendant and the officers. The defendant pushed his wife to the side, causing her to lose her balance, and continued to argue with the officers. The defendant was charged with domestic battery for making contact of an insulting or provoking nature with his wife. The wife did not cooperate with the prosecution. 2021 IL App (2d) 190243 at ¶¶3, 11.

At trial, the defendant’s wife testified that the shove was similar to being passed in the hallway and told to move. She said she stepped between her husband and the officers because of the Geneva Police Department’s unfair treatment of her husband. 2021 IL App (2d) 190243 at ¶12. One of the officers testified that state law and the Geneva Police Department’s policy required them to make an arrest if an officer observes a domestic violence act. 2021 IL App (2d) 190243 at ¶16. The witness who was involved in the accident with the defendant’s son testified that the defendant’s shoving of his wife made her feel surprised and startled. 2021 IL App (2d) 190243 at ¶11.

At the close of the state’s evidence, the defense made a motion for a directed verdict and argued that none of the witnesses testified to having been “insulted.” 2021 IL App (2d) 190243 at ¶21. The state responded that the domestic battery statute does not require a victim to say that he or she was insulted or provoked. 2021 IL App (2d) 190243 at ¶22. The trial court denied the motion for a directed verdict and stated that whether the contact was insulting or provoking was a factual question for the jury. The trial court said the terms “insulting” and “provoking” were common enough for the jury to decide based on the testimony. 2021 IL App (2d) 190243 at ¶24.

The appellate court reversed and held that the motion for directed verdict should have been granted. The court noted that when a defendant moves for a directed verdict, the defendant admits the truth of the facts presented by the state. The trial court does not judge the weight of the evidence or the credibility of the witnesses. A court can only consider “competent” evidence in ruling on the motion. 2021 IL App (2d) 190243 at ¶¶46 – 47.

The Ward court said that the trial court erred in declining to rule on the legal sufficiency of the evidence. 2021 IL App (2d) 190243 at ¶48. The court also disagreed with the state’s main argument at trial that the domestic battery statute requires only that the contact itself was insulting or provoking, not that the victim was insulted or provoked. 2021 IL App (2d) 190243 at ¶¶48, 50, 53. The court stated that “[w]hile it is true that the victim is not required to explicitly testify that he or she felt insulted or provoked, the State is required to prove that the physical contact insulted or provoked the victim, not some third party.” 2021 IL App (2d) 190243 at ¶50.

The Ward court noted that the Fourth District held in Williams, supra, that the terms “insulting” and “provoking” refer to the type of contact, not to the victim’s reaction, and that the jury should decide whether the contact was insulting or provoking. 2021 IL App (2d) 190243 at ¶51. The Ward court stated it disagreed with Williams and noted that if the type of contact was the only determining factor, then courts would not look at the context, the parties’ relationship, and the victim’s reaction at the time. 2021 IL App (2d) 190243 at ¶52.

The Ward court clarified that although a victim does not have to testify that he or she was insulted or provoked by contact, there must be some evidence in which a trier of fact could logically conclude that the victim was insulted or provoked. 2021 IL App (2d) 190243 at ¶56.

The Ward court was also critical of one of the officers giving his opinion that a domestic battery had occurred and the occurrence witness’s testimony on how she felt when she observed the defendant shove his wife. The court stated that it is improper for officers to give their opinions on whether a defendant committed an offense and that the civilian witness’s feelings were irrelevant. The court noted, though, that testimony about how the wife appeared or reacted would have been relevant. 2021 IL App (2d) 190243 at ¶¶63 – 64.

However, no one testified at trial that the wife displayed any of the typical reactions that most people feel when they have been “insulted or provoked.” 2021 IL App (2d) 190243 at ¶65. The court said that the defendant’s reaction to his wife stepping between him and the police “appeared to be a response to protect his personal space.” 2021 IL App (2d) 190243 at ¶66.

The court concluded that the defendant’s pushing of his wife accompanied by telling her to shut up — without more — was not the type of contact that automatically gives rise to an inference that his wife was insulted or provoked. 2021 IL App (2d) 190243 at ¶67.

Justice Zenoff dissented and disagreed with the majority’s opinion that the state was required to present evidence of the victim’s emotional reactions to being insulted or provoked. 2021 IL App (2d) 190243 at ¶88. She found that this requirement would be detrimental to prosecuting well-founded domestic violence cases (2021 IL App (2d) 190243 at ¶103), and she criticized the majority for creating a standard that, in her view, “is so subjective that it will be impossible to apply consistently or fairly” (2021 IL App (2d) 190243 at ¶104). She also concluded that the trial court did not err in denying the motion for directed verdict. 2021 IL App (2d) 190243 at ¶105.

Adam Bolotin, Pissetzky Law, LLC, Chicago | 312-883-9466
Matthew Chivari, J.D., Graduate of DePaul University College of Law

Warrant Exceptions Exist, Not Applied Case-by-Case

The Fourth Amendment guarantees the right to be secure “against unreasonable searches and seizures.” U.S.CONST. amend. IV. As “law and order” Burger and Rehnquist-era Justices replaced the Warren Court progressives, the Supreme Court began carving out exceptions to the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961), and the Fourth Amendment protections. For instance, the Court developed the good-faith exception that now saves evidence from exclusion if the officers effectuate a seizure based on a law later found to be unconstitutional, if they seize evidence pursuant to a warrant later deemed to lack probable cause, and even if they make an illegal stop based on an incorrect understanding of the law. Such applications of the good-faith exception, as many criminal defense attorneys and proponents of constitutional protections argue, have swallowed the rule.

While rights have withered in some arenas, the Court “has ‘repeatedly declined to expand the scope of . . . exceptions to the warrant requirement to permit warrantless entry into the home.” Caniglia v. Storm, ___ U.S. ___, 209 L.Ed.2d 604, 141 S.Ct. 1596, 1600 (2021). “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U.S. 1, 185 L.Ed.2d 459, 133 S.Ct. 1409, 1415 (2013). The “Fourth Amendment . . . draw[s] a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371, 1382 (1980). The “chief evil” the Fourth Amendment protects against is the “physical entry of the home.” 100 S.Ct. at 1373. The Court further sharpened these protections’ teeth by limiting the exigent-circumstances exception in Lange v. California, ___ U.S. ___, ___ L.Ed.2d ___, 141 S.Ct. 2011 (2021).

In Lange, the defendant drove past a highway patrol officer with his windows rolled down, music blasting, and horn repeatedly honking. 141 S.Ct. at 2016.Unsurprisingly, the officer began to follow the defendant and activated his squad car’s overhead lights. The defendant was only a hundred feet from his home when the officer activated the lights, and he simply continued driving up his driveway and into his home’s attached garage. Id.

Though the officer did not have a warrant to arrest the defendant or to search his home, the officer followed the defendant into the garage and began questioning him. During the questioning, the officer observed signs of intoxication and put the defendant through field sobriety tests — tests the defendant did not do well on. The defendant subsequently submitted to a blood test, which showed his blood alcohol content to be more than three times the legal limit. The officer accordingly arrested the defendant, who was charged with misdemeanor DUI and a noise infraction based on his loud music and horn honking that preceded the seizure inside his garage. Id.

The defendant moved to suppress all evidence obtained after the officer entered the garage, arguing that the officer’s entry into the garage violated the Fourth Amendment. Both the state trial and appellate courts denied the defendant’s motion. The California court of appeal opined the defendant’s “ ‘fail[ure] to immediately pull over’ . . . created probable cause to arrest him,” and the defendant “could ‘not defeat an arrest which ha[d] been set in motion in a public place’ by ‘retreat[ing] into’ a house or other ‘private place.’ ” Id., quoting People v. Lange, No. A157169, 2019 WL 5654385, **7 – 8 (Cal.App. Oct. 30, 2019) (unpublished). Announcing a categorical rule, the state court held “ ‘an officer’s “hot pursuit” into the house to prevent the suspect from frustrating the arrest,’ is always permissible under the exigent-circumstances ‘exception to the warrant requirement.’ ” Id.

Weighing the lower court’s categorical rule, the Court first reviewed the exigent-circumstances exception to the warrant requirement. The exception applies only “when ‘the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.’ ” 141 S.Ct. at 2017, quoting Kentucky v. King, 563 U.S. 452, 179 L.Ed.2d 865, 131 S.Ct. 1849, 1856 (2011)). The exception excuses the need for a warrant so officers can “handle ‘emergenc[ies]’ — situations presenting a ‘compelling need for official action and no time to secure a warrant.’ ” 141 S.Ct. at 2017, quoting Missouri v. McNeely, 569 U.S. 141, 185 L.Ed.2d 696, 133 S.Ct. 1552, 1559 (2013). The need to render emergency assistance to an injured occupant, to protect an occupant of the home from imminent injury, or to ensure the officer’s safety satisfy the exception. 141 S.Ct. at 2017, citing Brigham City, Utah v. Stuart, 547 U.S. 398, 164 L.Ed.2d 650, 126 S.Ct. 1943, 1947 (2016). The exception also permits warrantless entries to prevent the imminent destruction of evidence or a suspect’s escape. 141 S.Ct. at 2017, citing Brigham City, supra, 126 S.Ct. at 1947, and Minnesota v. Olson, 495 U.S. 91, 109 L.Ed.2d 85, 110 S.Ct. 1684, 1690 (1990).

Contrary to the lower court’s categorical application, the exception, the Court stressed, has consistently been applied on a case-by-case basis. Lange, supra, 141 S.Ct. at 2017, citing Birchfield v. North Dakota, ___ U.S. ___, 195 L.Ed.2d 560, 136 S.Ct. 2160, 2174 (2016). Its application requires reviewing courts “to examine whether an emergency justified a warrantless search in each particular case.” Lange, supra, 141 S.Ct. at 2017, quoting Riley v. California, 573 U.S. 373, 189 L.Ed.2d 430, 134 S.Ct. 2473, 2494 (2014). “Whether a ‘now or never situation’ actually exists — whether an officer has ‘no time to secure a warrant’ — depends upon facts on the ground.” Lange, supra, 141 S.Ct. at 2018, quoting Riley, supra, 134 S.Ct. at 2487, and McNeely, supra, 133 S.Ct. at 1561 – 1562 (2013).

The Court’s case-specific approach notwithstanding, the state argued the Court established a categorical approach in United States v. Santana, 427 U.S. 38, 49 L.Ed.2d 300, 96 S.Ct. 2406, 2408 (1976). 141 S.Ct. at 2019. There, officers had probable cause to believe the defendant was dealing a felony amount of drugs and pulled up in front of her home. As the officers exited their vehicle and yelled “police,” the defendant retreated into her home. Id., quoting Santana, supra, 96 S.Ct. at 2408. The officers followed her in and seized heroin. The Court upheld the warrantless entry, describing it as one that involved “hot pursuit” and proclaimed the defendant’s retreat could not defeat the arrest. Id.

The Lange Court disagreed with the state’s argument that Santana should be read broadly to establish a categorical rule but did so without considering whether it actually established such a categorical application in felony cases. Lange, supra, 141 S.Ct. at 2019. The case before it involved a misdemeanor, and Santana, the Court stressed, “said nothing about fleeing misdemeanants.” Id. Effectuating this distinction, the Court recognized that misdemeanors are more often “minor” offenses as compared to felonies. 141 S.Ct. at 2020. Such a categorical “rule would cover lawbreakers of every type, including quite a few hard to think alarming.” Id. When officers are confronted with a minor offense, they “do not usually face the kind of emergency that can justify a warrantless home entry.” Id.

Indeed, the Court had ruled exigent circumstances did not support warrantless entry into a defendant’s home to prevent the dissipation of the defendant’s blood alcohol level. 141 S.Ct. at 2020, citing Welsh v. Wisconsin, 466 U.S. 740, 80 L.Ed.2d 732, 104 S.Ct. 2091, 2100 (1984). In Welsh, the Court stressed that when the officers are investigating a minor offense committed without any subsequent flight, “there is reason to question whether a compelling law enforcement need is present.” Lange, supra, 141 S.Ct. at 2020, quoting Welsh, supra, 104 S.Ct. at 2098. The Court accordingly concluded, “[A]pplication of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense” was committed. Lange, supra, 141 S.Ct. 2020, quoting Welsh, supra, 104 S.Ct. at 2093.

Though Welsh did not involve a fleeing suspect and Lange did, the Court asserted flight does not change the calculus “enough to justify the [state’s] categorical rule.” Lange, supra, 141 S.Ct. at 2021. Suspects may flee to discard evidence, and such flight may show a suspect’s willingness to flee farther while law enforcement takes the time to obtain a warrant, but “no evidence suggests that every case of misdemeanor flight poses such dangers.” Id. The categorical rule, the Court asserted, “would treat a dangerous offender and the scared teenager the same.” Id.

Courts must weigh the circumstances presented by each case individually. On many occasions, the circumstances will show that the officer had good reason to enter such that the exception fits. 141 S.Ct. at 2024. In other cases, the circumstances will not support the exception; thus, a categorical approach is not acceptable. “[W]hen the officer has time to get a warrant,” the Court held, “he must do so — even though the misdemeanant fled.” Id.

For more information about criminal law, see DEFENDING CRIMINAL CASES: PRETRIAL ISSUES, GUILTY PLEAS, AND DEFENSES (IICLE®, 2021). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit

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