Bottom line, if you’re in a public place, and your conversation can be overheard by others without the assistance of electronic equipment, it’s my belief that your conversation is fair game for anyone and everyone to record; that is because you shouldn’t have an expectation of privacy in a conversation others can overhear; if you don’t want it recorded, relocate to someplace a little more private.⁴

My interest in the controversy surrounding the constitutionality of our eavesdropping law was sparked a few years back when a friend and colleague’s law office was raided by law enforcement pursuant to a warrant issued to obtain a video recording his client made of an encounter with law enforcement. The prosecution became aware of the video during the trial in another matter, believed the video recording had audio and video, and all hell broke loose. My colleague wouldn’t turn over the video recording, rightfully asserting that it was privileged. They got the video anyway after the warrant was executed, and it sparked a lot of debate amongst the criminal defense attorneys in Bloomington and the McLean County Bar Association.

Prior to the 7^th Circuit’s ruling, many Illinois Attorneys were also of the opinion that the law in its current form was unconstitutional, including McLean County Illinois interim prosecutor, and former Circuit Court Judge, Ron Dozier.⁵ Before the decision, Dozier had been quoted in the local paper, The Pantgraph, as stating that while he was the chief prosecutor of the county, he would not pursue charges against someone believed to have violated the law.⁶

In any event, it appears that a victory has been had for the 1^st Amendment, that the unconstitutionality of the Illinois eavesdropping statute is finally at a head, and that the Illinois Eavesdropping Statute in its current form is in serious jeopardy. Thank goodness and good riddance. People shouldn’t face the possibility of going to jail for audio recording their son’s or daughter’s game since they didn’t get the permission of everyone on the field. Just as ludicrous is the idea that we as citizens cannot record our own civil servants when serving and protecting the very same individuals they’ve been sworn to serve and protect.⁷

1. Granted, at this juncture, only a preliminary injunction has issued allowing the ACLU to audio and video record police officers in public places, and the law itself has not yet been declared unconstitutional, but in its opinion, the 7th Circuit was of the opinion that: “The ACLU’s challenge is likely to succeed under any of the less rigorous standards of scrutiny that apply to restrictions on speech”
2. ACLU v. Alvarez, No. 11-1286 (7th Cir. 2012
3. For a more thorough history of recent proposals and a history of the statute itself, please see the Illinois State Bar Association’s article here. As it currently stands, the statute criminalizes all audio recordings of any oral communication regardless of whether it secretly or surreptitiously intercepted or it is intercepted without or without a listening device; consent of both parties to the communication is also required regardless of whether the communication is or was intended to be private.
4. Please be aware that as the law stands now, no one currently has the right to audio record private conversations in public places, but the writer believes that such recordings may be constitutionally protected.
5. At p. 17 of the opinion, the court also makes reference to a circuit judge in Cook County previously declaring that the eavesdropping statute violates substantive due process.
6. the full article published on the Pantagraph’s website can be found here
7. Quoting Glik v. Cunniffe, 655 F.3d 78, 79-81 (1st Cir. 2011) the 7th Circuit had this to say about private citizens facing possible criminal charges for audio recording law enforcement in public: “‘Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.” (ACLU v. Alvarez at p. 35) (internal citations and quotations omitted)

This interesting little lawsuit that encompasses issues relating to free speech, first amendment rights, defamation, and the Citizen Participation Act, all began because of some derogatory statements posted on a newspaper website aimed at the son of a Buffalo Grove woman who was running for village trustee. The son initially posted anonymously in the comments section of the newspaper’s website in response to articles written about his mother before he was outed. I chose to write about it, because it involves issues common to our new world in cyberspace and builds on issues that I previously blogged about on June 14, 2010, found here: http://goo.gl/C7Pkn

The Petitioner/Plaintiff, Lisa Stone, was a candidate for Buffalo Grove Village trustee. On April 4, 2009, the Respondent-owned newspaper “The Herald”² published a letter in support of Stone’s candidacy, which was made available on its website. In response to the letter and comments made by Stone’s minor child³, John Doe⁴ posted a derogatory response about Stone’s qualifications for the office.⁵ Other exchanges were also made between John Doe and Stone’s son, but the one that caught the ire of the court was a response to UNCLEW’S suggestion that Hipcheck16 meet UncleW at his home to further discuss their differences. Hipcheck16 posted the following in response to UNCLEW’s invitation: Thanks for the invitation to visit you., but I’ll have to decline. Seems like you’re very willing to invite a man you only know from the internet over to your house- have you done it before, or do they usually invite you to their house? Minor’s mother filed a petition pursuant to S.Ct.R. 224, a special Illinois Supreme Court Rule, and one which our firm recently utilized, which enables litigants to file suit primarily to identify possible defendants. In this instance, Lisa Stone was utilizing S.Ct.R. 224 to ascertain John Doe’s identity in relation to alleged defamatory statements posted by him about the candidate’s son.

The trial court below entered an order permitting Stone to engage in limited discovery to ascertain the identity of Defendant Doe, a/k/a Hipcheck16. The Respondent in Discovery, Paddock Publications, Inc., responded to Stone’s initial discovery requests by only disclosing Hipcheck’s email and IP addresses. A reading of the first district’s opinion reveals that at some point during the course of the litigation it was discovered that the IP address belonged to a Comcast user or subscriber. Armed with this knowledge, Stone’s counsel requested a subpoena directed to Comcast, which the court granted, with instruction to Comcast that it inform the subscriber that he could contest the subpoena. Learning of the subpoena, Doe moved to quash it, in an effort to maintain his anonymity. The trial court denied Doe’s motion to quash, and Doe appealed arguing that the trial court erred by applying an improper standard in determining whether petitioner was entitled to discover his identity, and whether the challenged comments were immunized by the Citizen Participation Act and also protected first amendment speech. Essentially, Doe believed his First Amendment rights trumped plaintiff’s attempts to ascertain his identity, and that when weighing the competing interests of one’s constitutional rights to engage in anonymous speech, particularly political speech, versus an individual’s right to redress defamatory statements made against him, the plaintiff should be required to demonstrate a higher probability of success than would ordinarily be required in other cases not involving constitutional concerns. The first district agreed with Doe.

In its analysis, the first district concluded that Rule 224 “is intended to assist a potential plaintiff in seeking redress against a person who may be liable but the plain language of the rule also requires a petitioner to demonstrate the reason why the proposed discovery seeking the individual’s identity is ‘necessary’. The question [therefore] is what standard a petitioner must satisfy to show that the proposed discovery is necessary. In determining what is required by this language, we keep in mind that Rule 224 applies not only to petitioner’s potential defamation claim, but to any instance in which an unknown individual may be liable under any cause of action.” Nonetheless, the court said, it has a duty to construe the statute in a constitutional manner. Doe’s argument was that the court’s duty to weigh his constitutional rights to engage in anonymous speech against Petitioner’s obligation to show that the proposed discovery was necessary, in relation to this case, and others like it, required the court to be extra cautious.

In its analysis of these competing interests, the court cited earlier Illinois and United States Supreme Court cases discussing the role that anonymous speech has played throughout the course of our nation’s history. It noted that identification and fear of reprisal may deter even peaceful discussions regarding important public matters⁶; that “’anonymity is a shield from the tyranny of the majority’”⁷; that “an author is generally free to decide whether he wishes to disclose his true identity and his decision not to do so is an aspect of the freedom of speech provided in the first amendment”⁸; that “discussion of public issues as well as debate regarding candidate’s qualifications are integral to the government established by our Constitution⁹; and that society gives greater weight to the value of free speech than the danger that free speech will be misused¹⁰.

Taking these principles into consideration, the court adopted the standard pronounced in the third district case of Maxon v. Ottawa Publishing Co.¹¹ Maxon requires that before an anonymous speaker’s identity may be revealed, the plaintiff must demonstrate (1) that the Rule 224 Petition is verified; (2) that it states with particularity facts that would demonstrate a cause of action for defamation; (3) seeks only the identity of a potential defendant, rather than information necessary to demonstrate a cause of action for defamation; and (4) ‘‘is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant, i.e., the unidentified person is one who is responsible in damages to the petitioner”.¹² Therefore, before the identity of the speaker will be revealed, the court will unilaterally require the Rule 224 petitioner to demonstrate that he could survive a 2-615 Motion to Dismiss without one having been filed by the respondent. If it is apparent to the trial court that the petitioner/plaintiff cannot demonstrate sufficient facts supporting his cause of action, the court should deny the request to reveal the identity of the speaker. The first district declined to impose a more onerous motion for summary judgment standard.

The court concluded Petitioner/Plaintiff’s cause of action was deficient, because it failed to meet the above requirements, and that Petitioner/Plaintiff had failed to allege sufficient facts to support his claim for defamation. To be actionable as defamation per se, the actual words themselves must demonstrate that the “harm is apparent and obvious on the face of the statement”.¹³ There are additional protections afforded speakers when first amendment concerns are present, which requires a showing that the actual statement is “factual”. In this case, the court was of the opinion that, “[E]ven if a sexual connotation can be read into Doe’s comment, his comment may represent nothing more than an admonishment that Jed’s conduct in inviting Doe to meet in person was unwise, not that Jed actually solicits or has been solicited for sex with anonymous men on the internet”; a statement entitled to innocent construction. ¹⁴ The court was also of the opinion that the plaintiff had failed to allege facts and special damages sufficient to enable him to prevail on a per quod theory of recovery.

In summary, as was iterated in my last blog on this same subject, be careful what you say about others, especially in the online community where your words may be forever embedded in cyberspace; otherwise, you may too become forever married to an Illinois Attorney in years of protracted litigation over something silly you may wish you wouldn’t have said in the first place. In other words, “don’t be that guy”.

1. 961 N.E.2d 380, 2011 Ill. App. Ct. 1st Dist.
2. owned by the Respondent Paddock Publications, Inc.
3. Jed Stone, a/k/a Username UncleW
4. Username Hipcheck16
5. “Here we go again – another brainwashed adolescent who can’t form an opinion on their own. Lou- you’re probably not old enough to vote, and I’m certain all you know about this election is what your mommy told you. I’ll bet you’ve never been to a village board meeting and couldn’t find village hall even if they were giving away free iPods there. Do some of your own research on your wonderful candidate and you’ll quickly discover that she is NOT QUALIFIED to be a trustee. She knows little about finance, NOTHING about business or village operations and can’t seem to form a coherent thought- at least not ones that find their way out of her mouth. Your parents should teach you the importance of having good community leaders, and a lesson on independent thinking would probably be beneficial too. While you’re at it, perhaps you should work on that spelling and grammar stuff, as it seems to be an ongoing challenge for you, as well as other Stone supporters. Now go watch MTV and quit inserting yourself into conversations for which you’re not prepared. If you’re 16, go take your Rottweiler for a nice long walk. And don’t do heroin- it’s bad for you.”
6. quoting Talley v. California, 362 U.S. 60, 65 (1960); People v. White, 116 Ill.2d 171, 177 (IL. 1987)
7. citing McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995)
8. citing McIntyre, 514 U.S. at 341-42
9. citing McIntyre, 514 U.S. at 346
10. citing McIntyre, 514 U.S. at 357
11. 929 N.E.2d 666, 402 Ill.App.3d 704 (Ill. App. Ct. 3d Dist. 2010)
12. quoting Maxon, 402 Ill.App.3d at 711
13. According to the court, “ there are five categories of statements that are deemed to be defamation per se:(1) words imputing the commission of a criminal offense; (2) words that impute infections with a loathsome communicable disease; (3) words that impute an individual is unable to perform his employment duties or otherwise lacks integrity in performing those duties; (4) words that prejudice an individual in his profession or otherwise impute a lack of ability in his profession; and (5) words that impute an individual has engaged in fornication or adultery. (citing Tuite v. Corbitt, 224 Ill.2d 490, 501; 866 N.E.2d 114 (Ill. 2006)
14. Stone, 961 N.E.2d at 391

Over the course of the past several years, our firm represented the Estate of a deceased motorcyclist who was killed when a driver of a motor vehicle pulled out of a bar’s parking lot directly into the path of our decedent. The driver of the vehicle leaving the bar had a BAC quite a bit above the legal limit, and as I just mentioned, had just left the property of the bar he had been drinking at. In any event, our decedent was not wearing a helmet and likely died instantaneously; not to say that the helmet would have saved his life, but it very well may have.² After much research and investigation into other potential causes of action against the tavern and property owner, it was decided that our only causes of action lied in negligence against the driver for wrongful death, and a dramshop cause of action against the tavern and property owner.³ The decedent left two children, both of whom were minors at the time they lost their father, and an ex-wife now responsible for raising these two children without the benefit of any support or assistance from her now deceased ex-husband. So, you might be saying to yourself, the other driver either killed or contributed to the death of the decedent, so that family must be entitled to a rather large sum of money to compensate them for their loss. Due to the state of the law in Illinois, your thoughts are simply that, wishful thinking. Had their father survived, but been left with permanent injuries, your initial thoughts would have been accurate. How can that be you ask? Someone died!! The short answer and reason for this absurdity – an absurdity in my opinion at least – is due primarily to the fact that wrongful death causes of action, created by the Illinois Legislature in 1853 through the Wrongful Death Act⁴ , are statutorily created causes of action that did not exist at Common Law and do not allow recovery for punitive damages. 

So, if that is the law, how is the family compensated for their loss if the defendant driver does not have or has very little insurance? Very good question! The family can pursue damages for pecuniary losses. Pecuniary losses include deprivation of support, depravation of the companionship, guidance, advice, love and affection, and now mental suffering.⁵) Pecuniary loss can include loss of gifts, benefits, goods and services, and society, taking into consideration the gifts, benefits, goods and services customarily contributed by the decedent in the past and was likely to contribute in the future.6 The family can also seek compensation for loss of instruction, moral training, superintendence of education the decedent may have reasonably be expected to give his children had he lived, taking into consideration his age, sex and health; his habits of industry and thrift; his occupational abilities; and his relationship with his children.⁷ However, If the defendant driver does not have insurance, the defendant is more or less judgment proof, unless he or she has equity in other assets (such as a home, vehicle or liquid assets) that may allow the Estate of the decedent to place a lien on those assets after a judgment is secured. Even if there are assets with equity, unless a jury returns a verdict for punitive damages, the defendant can simply bankrupt the judgment if that option is available to him, and walk away without paying a nickel. Oh, and guess what, as previously indicated, punitive damages are not currently allowed in Wrongful Death and Survival actions. So, where does that leave the family of the decedent who has lost their loved one? Mostly, Out-of-Luck!!

Seems a little unfair doesn’t it? The victim lives, and punitive damages are available, but he dies, sorry. So, as the law currently stands, a defendant driver who either kills or contributes to the death of another, who was driving without state mandated insurance, and who committed an intentional tort can just walk away without any recourse should he be judgment proof and have the ability to discharge the debt in bankruptcy? How can this be? What can be done about it? To answer these questions, one only needs to turn to the Illinois General Assembly. As previously mentioned supra, Wrongful Death and Survival Actions were created by the legislative branch, so they can easily amend the statutes to enable plaintiffs to pursue punitive damages in such cases. With all of the attention that has been given over the years by the Illinois General Assembly to the social implications of those driving while under the influence, the increased enhanced penalties the General Assembly continues to impose on DUI drivers, the atrocities suffered by those who have fallen victim to those who decide to get behind the wheel while impaired, and the attention given to the problem by legislatures, the media, and social interest groups such as MADD., it is amazing to me that this conundrum has not been remedied⁸   

Should MADD., other social interest groups or one of our legislatures fail to close this loophole, the only other possible solution is that the Illinois courts create a judicial theory that would allow the Estate of the decedent the ability to pursue punitive damages. One court did just that, although its holding hasn’t seemed to take hold elsewhere in our judiciary. See Penberthy v. Price, 281 Ill.App.3d 16, 666 N.E.2d 352 (Ill. App. Ct. 5^th Dist 1996) (relating to punitive damages in survival actions); Ford v. Herman, 316 Ill.App.3d 726, 737 N.E.2d 332 (Ill. App. Ct. 5^th Dist. 2000); Hennessy v. Foley, 154 Ill.App.3d 1039, 507 N.E.2d 1258 (Ill. App. Ct. 5^th Dist. 1987).

In Penberthy, Defendant Kenly operated a motor vehicle while intoxicated, and while doing so, crossed the centerline and collided with the vehicle being driven by Michael Penberthy. ((Id. at 353))  Penberthy and his passenger, David C. Walpole were injured, and Kenly died as a result of the accident.  Plaintiffs sought punitive damages for the willful and wanton behavior of Kenly. ⁹  Kenly’s Estate filed a motion to dismiss alleging that the Survival Act only allows the recovery of compensatory damages where either the victim or the tortfeasor is deceased. ¹⁰

Relying on Raisl v. Elwood Industries, Inc., 134 Ill.App.3d 170, 479 N.E.2d 1106 (1985); Grunloh v. Effingham Equity, Inc., 174 Ill.App.3d 508, 528 N.E.2d 1031 (1988); and Howe v. Clark Equipment Co., 104 Ill.App.3d 45, 432 N.E.2d 621 (1982), the fifth district upheld the punitive damages award in Penberthy.  Penberthy, 666 N.E.2d at 355-56.  Quoting Grunloh, the court stated:

The factors generally considered in determining whether an action for punitive damages survives are: (1) whether under ordinary circumstances the requested punitive damages have a statutory basis or are an integral component of a regulatory scheme and the remedy available thereunder; and (2) whether strong equitable considerations favor survival of an action for punitive damages.  Matters which are relevant in considering the second of the above factors include whether the defendant’s alleged conduct offends against a strong and clearly articulated public policy; whether the underlying conduct constituted intentional misconduct which is also a crime, instead of mere willful and wanton conduct which shades into simple negligence; and whether absent an award of punitive damages, a plaintiff who prevailed on the merits of his or her claim would at most be entitled to only a comparatively small recovery.

Penberthy, 666 N.E.2d at 356.

The court concluded that the second factor quoted above was applicable and held that “[Kenly’s] conduct, driving under the influence of alcohol, unquestionably offends against a strong and clearly articulated public policy.”  The fact that driving under the influence is also a criminal offense weighed heavily in the court’s decision, as did the strong equitable considerations justifying the survivability of the punitive damages claim against the decedent’s estate. ¹¹

In our case, after we filed a motion for leave to amend our complaint in an effort to allow us to seek punitive damages against the intoxicated defendant driver that caused or contributed to the death of our decedent, we argued that Penberthy was applicable, and that we should, therefore, be allowed to pursue punitive damages against the defendant. Our request was denied; obviously, a ruling which I did not agree with then, and still do not agree with today. In fact, had the defendant not decided to settle, it was an appeal I was very much looking forward to, and which I would have solicited amicus briefs on.¹²

The only true distinction that I see between Penberthy and our case is this: in Penberthy, surviving plaintiffs sued a decedent driver, whereas in our case, decedent plaintiff was suing surviving defendant driver. A distinction I fail to see, and an injustice I truly do. Personally, I think the fifth district’s opinion is well rationalized, and should be adopted by the rest of the districts of the Illinois Appellate Court. Aren’t the equitable considerations the fifth district relied on to uphold the punitive damages award in Penberthy, applicable in any case in which death is caused by an intoxicated driver? Doesn’t that driver’s conduct still offend against a strong and clearly articulated public policy? Doesn’t the underlying conduct constitute an intentional misconduct which is also a crime, instead of mere willful and wanton conduct which shades into simple negligence? Lastly, isn’t the estate of the decedent still left with a comparatively small recovery if punitive damages aren’t available, and more importantly, left with nothing if the award is dischargeable in bankruptcy? Isn’t the threat of punitive damages yet another deterrent to someone getting behind the wheel after he’s had too much to drink?

It is my belief that all of the concerns expressed by the fifth district are applicable regardless of who is blessed enough to walk away from such a tragedy. However, the behavior of the intoxicated driver should, without question, expose him to punitive damages. Making this remedy available should also serve as yet another weapon in the arsenal of remedies available against those who may be inclined to put their life and possible other lives at risk by getting behind the wheel after they’ve had too much to drink. So, talk to your state legislatures or  MADD., and let your voice be heard by those who have the ability to close this loophole in the laws of our State.

1. Before I began this blog, my very capable assistant, Jeanette, and the other girls in the office were having a discussion about the Casey Anthony trial. During the discussion, one of the girls was expressing her outrage that Ms. Anthony was found not-guilty of the murder counts she was facing. That’s when Jeanette suggested that I blog about the Anthony trial and the issues that presented themselves in that case. I huffed at the idea and still am as I’m sitting here typing. “No”, I said, “I’m sure there are plenty of people who are going to be writing about that circus show for some time to come; and, I really didn’t follow the case that closely” – I also really just don’t care – As the title of my blog suggests, this blog is not about that trial, but I will share with you that I wasn’t really surprised at all by the verdict (not that I agree with it, but I have to have faith that those 12 people came to the right decision, and whether or not she is truly guilty is now between her and her Savior), and in fact, I had told someone within a few days of the verdict that I thought she might be found innocent primarily due to the fact that most of the case hinged on circumstantial evidence. Honestly though, I’ve never really been one to follow the big media cases – O.J., Michael Jackson, Barry Bonds, and other celebrities or media darlings who for some reason found themselves in the press really just bore me honestly, and often there really isn’t a whole lot to learn from them. Their issues also often don’t have much practical application in my opinion; of course, I could be wrong, and maybe I could have witnessed some great lawyering; or, at the very least, some really good entertainment. I guess Roger Clemmons is next up to bat – pun intended. Follow it closely, although I can assure you that I won’t be.
2. yes, yet another sad story to tell your loved one who refuses to wear a helmet while riding; unfortunately, I personally have witnessed the death of several in my lifetime
3. please see my previous blog about dramshop causes of action dated December 6, 2010, located here:  http://www.doddslawoffice.com/blog/?p=104
4. See 740 ILCS 180/0.01
5. See Clarke v. Medley Moving and Storage, Inc., 885 N.E.2d 396 (Ill. App. Ct. 1st Dist. 2008
6. Id. at p. 404
7. Id.
8. I previously contacted the Illinois Chapter of MADD to ensure they were aware of this loophole in the law, and to ascertain if they were lobbying the General Assembly to close it. The response I received asked me to forward my inquiry to the State Executive Director, Susan McKeigue. I am awaiting her response, and will update my blog if and when I receive one.
9. Id.
10. Id. at 353-354
11. Id.
12. Amicus briefs are filed with permission of the court by nonparties with strong interest in or views on the subject matter of an action. They are usually filed in very controversial cases or high-profile cases with strong public implication.

He was a man that I admired very much, and who really seemed to take a liking to me since before I completed my undergraduate studies at Illinois State University (ISU). Our many conversations began while I was an intern at the DeWitt County Sheriff’s department while studying criminal justice at ISU. They continued into law school and after I entered the profession. His daughter Melissa and I went to high school together, and we even sat near one another in study hall, although she was a year or two behind me in school. I will miss our friendly conversations in his chambers; it was something I always looked forward to when I went back to Clinton. He had a tough job, and some who appeared before him might not have cared for him as much as I did, but they didn’t know the man glaring down at them from the bench like I and many others did; and like him or not, they certainly had to respect him. I was glad I was able to get a glimpse of the kind of person he was without the black robe on, and am grateful he took a liking to me. He was a good man to me, and that’s all that counts in my book.

It wasn’t shortly after he retired that he became ill. When I first heard the news, it saddened me very much, because here was a man that worked hard his entire life to get to get to his “golden years”. The time I know he worked so hard for, looked forward to, and which should have been spent enjoying with his wife, lovely daughters, and grandchildren. A time which was so suddenly shortened.

Ironically, during Melissa’s eulogy, she told everyone her father advised her that she could do whatever she wanted in life, except become an attorney. Humm, when I see him next, I’ll have to ask why I didn’t get that same sound advice, lol.

You will be missed sir.

Journey for Kentucky Cigarettes Beginning in 2003, Makes Second Stop at Illinois Appellate Court in 2010, After Brief Overnight Stay in Illinois Supreme Court in 2008, with its Final Destination Likely to Again be the Illinois Supreme Court, Possibly by the year 2012², Although Others Have their Doubts as to When the Case Will Finally Reach Conclusion, IF EVER.

Why is the trip of our main character, Omar Al Burei, to illegally smuggle one of Kentucky’s cash crops³ back to Illinois to avoid tax on his cigarettes important enough for me to write about you might ask? Well, because it has to do with 4th Amendment Rights and the expectation of privacy one has as a traveler (in this instance a passenger) in a motor vehicle. No, it’s not a new debate, but lines are continually being drawn and redistricted, and it’s important for both sides to know what the boundaries actually are at any given time.

While the Fist District’s September 30, 2010, opinion does not disclose where Mr. Al Burei’s journey began or what exactly his route was, the van he was in was stopped by Officer Glen Tienstra of the Hickory Hills, Illinois Police Department⁴ for an illegal U-turn and a cracked windshield. It is emphasized more than once in the opinion that the traffic stop was effectuated directly across from the police department. This is likely to discredit the State’s argument that officers needed to remove both passengers of the vehicle for officer safety concerns, as this is what the officer claimed was the reason for him removing both occupants⁵. The time between the stop and the defendant exiting the vehicle was approximately five minutes at the most. After both occupants had exited the vehicle, the testimony of law enforcement and Al Burei differ as to whether or not Officer Tienstra was given permission by Al Burei to search the vehicle. The circuit court found that Officer Tienstra asked for and received consent to search the vehicle, but further found that the officer’s questioning of the defendant “was completely unrelated to the initial purpose of the stop”, and suppressed the cigarettes seized as fruits of the poisonous tree. At issue was the reasonableness of the detention of Al Burei and whether or not it violated fundamental principles of the fourth amendment.

As stated in the first district’s opinion, in order for the detention to conform to fourth amendment principles, (1) the officer’s actions must have been justified at its inception, and (2) the detention must be “reasonably related in scope to the circumstances which justified the interference in the first place.”⁶) With both parties conceding the legality of the initial stop, the court was required only to focus on the second part of the inquiry, which is whether or not the continued detention and questioning by Officer Tienstra exceeded the scope of the initial inquiry and whether his continued inquiries “impermissibly prolonged the detention or changed the fundamental nature of the stop.”

While the first district analyzed the facts of this case in light of prior precedence wherein defendants had unsuccessfully argued to the Illinois Supreme Court that the return of their paperwork followed by subsequent requests by officers to search constituted a second seizure violative of fourth amendment principles⁷, the first district distinguished those cases factually from this case in that the initial seizure of the defendant had not been concluded at the time the officer requested to search the vehicle. Al Burei at p. 13. Therefore, the court concluded that there was never a second detention, and that the officers’ actions violated the duration prong by prolonging the traffic stop beyond its lawful purpose. Id. The court opined that once Mr. Ghaban had given a plausible explanation about his nervousness, the conversation should have ended, and the officer should have then proceeded to issue the appropriate traffic citations. Id. The continued detentions of Ghaban and Al Burei, therefore, transformed an otherwise lawful stop to an unlawful one because the officers unnecessarily prolonged it beyond the time reasonably required to complete its purpose, and furthermore, changed its fundamental nature, “because it infringed upon the defendant’s legitimate interest in privacy”. Id. at p. 15, 18.

The issue of prolonged stops is litigated with surprising regularity in the trial courts of Illinois and likely the other 49 states of this country. The fourth amendment issues raised in Al Burei were especially interesting to this author, because just recently such issues were preserved for a client of the Dodds Law Office who is anxiously waiting for his case to be heard by the justices of the fourth district. Preservation is key, and that is why it is so incredibly important to hire an experienced Illinois Criminal Defense Attorney who can identify such issues, argue them in a motion to suppress, and make certain that they are preserved for appellate review. Will the rationale of the first district carry the day for this client? Will Al Burei be upheld if it again reaches the Supreme Court of Illinois or the United States Supreme Court? Your guess is as good as mine, but I think it is fair to say that travelers of our highways and byways shouldn’t be subjected to lengthy interrogations about where they’re going and what they’re doing for simple traffic violations, whether or not the detainee has contraband or is otherwise up to no good. Why you ask? Simply because we would be subjecting the greater majority to invasions of privacy intended to ensnare the indiscretions of a select few; well, that’s the way I see it anyway.

1. http://goo.gl/Tnarb
2. if the Mayan’s calendar proves to be inaccurate after all
3. no, I’m not referring to cannabis, although some may argue that cannabis now rivals tobacco or has even overtaken tobacco as Kentucky’s no. 1 income producing agricultural crop; but, there are plenty of other sites out there in existence taking sides on this debate; See http://goo.gl/6ePcs; http://goo.gl/Tmbyc
4. While the First District’s Opinion does not disclose which Department Officer Tienstra was employed by, an internet search revealed that Officers Tienstra and Beckwith are or were both employed by the Hickory Hills Police Department
5. Officer Tienstra testified that he was concerned for his safety, because the driver, Majdi Ghaban displayed nervous behavior and kept looking at the defendant, Omar Al Burei, although according to the Officer, Al Burei did not appear nervous
6. citing Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (U.S. 1968); People v. Gonzalez, 204 Ill.2d 220, 226, 228 789 N.E.2d 260 (Ill. 2003
7. People v. Cosby, 231 Ill.2d 262, 898 N.E.2d 603 (Ill. 2008), applying the Mendenhall factors as set forth in United States v. Mendenhall, 446 U.S. 544, 64 L.Ed 2d 497 (U.S. 1980). The Mendenhall factors include (1) whether there was a threatening presence by several officers; (2) whether the officer displayed a weapon; (3) whether there was some physical touching by the officer; and (4) whether the language or tone of voice used by the officer indicated that compliance with the officer’s request was compelled.