noting that a trial court may not use a factor implicit in the offense as an aggravating factor in sentencing, but “a trial court may consider the nature and circumstances of the offense, including the nature and extent of each element of the crime that the defendant committed”
How later courts described this case
- noting that a trial court may not use a factor implicit in the offense as an aggravating factor in sentencing, but “a trial court may consider the nature and circumstances of the offense, including the nature and extent of each element of the crime that the defendant committed”
- “In any event, like the Johnson court, we leave the resolution of this issue to another day, as our conclusion would be the same applying either standard.”
- applying Mendenhall factors, the Appellate Court of Illinois concluded three officers standing next to suspect did not constitute a seizure
- collecting cases upholding convictions where State termed -20- 1-15-2067 defendant’s theory “ridiculous,” “preposterous,” or “a joke”
Written by the judges who cited it.
The opinion
JUSTICE O’MALLEY, specially concurring:
I write separately to explain why I believe that People v. Luedemann, 222 Ill. 2d 530 (2006), effectively created a fourth tier of police-citizen encounters known as community caretaking seizures. I say “effectively” because, though the court in Luedemann recognized that police may seize persons for community caretaking or public safety reasons, the court did not expressly alter the three-tier structure inherited from People v. Murray, 137 Ill. 2d 382, 387-88 (1990). In fact, the court seemed positively against any such revision. First, the court said:
“ ‘Community caretaking,’ rather than describing a tier of police-citizen encounter, refers to a capacity in which the police act when they are performing some task unrelated to the investigation of crime.” (Emphasis added.) Luedemann, 222 Ill. 2d at 545 .
And later, after setting forth the Murray tiers and recognizing as valid the concept of a community caretaking seizure, the court launched its analysis by stating: “Having properly set forth the three tiers of police-citizen encounters, we next consider the nature of the encounter when Officer Pate approached defendant’s vehicle.” (Emphasis added.) Luedemann, 222 Ill. 2d at 550 .
On the other hand, there are these remarks from the court: “Courts use the term ‘community caretaking’ to uphold searches or seizures as reasonable under the fourth amendment when police are performing some function other than investigating the violation of a criminal statute.” (Emphasis added.) Luedemann, 222 Ill. 2d at 546 . “It is clear, then, that the ‘community caretaking’ doctrine is analytically distinct from consensual encounters and is invoked to validate a search or seizure as reasonable under the fourth amendment.” (Emphasis added.) Luedemann, 222 Ill. 2d at 548 .
How a seizure occurring in a community caretaking context could not be a “police-citizen encounter” is beyond my ken. I can only speculate as to why the supreme court in Luedemann did not formally expand the Murray taxonomy to accommodate such encounters. Perhaps it was because the Murray tiers are each keyed to the quantum of justification needed for the encounter, and the court in Luedemann was not called on to articulate the criteria for a community caretaking seizure. 2 Whatever the case, I believe that formal embedment of the community caretaking doctrine in the Murray tiers is necessary to ensure that the doctrine — of comparatively recent vintage — becomes ingrained in the consciousness of Illinois practitioners and courts. I say this because several published decisions since Luedemann have recited the three Murray tiers without acknowledging that they do not exhaust all police-citizen encounters under the fourth amendment, because not all coercive police action need be justified as involving “the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute” (Cady v. Dombrowski, 413 U.S. 433, 441 , 37 L. Ed. 2d 706, 714-15 , 93 S. Ct. 2523, 2528 (1973)). See People v. Roa, 377 Ill. App. 3d 190, 196 (2007), vacated on other grounds, 229 Ill. 2d 687 (2008); In re Mario T., 376 Ill. App. 3d 468, 471 (2007). I also am one for whom an old habit dies hard. See People v. Flores, 371 Ill. App. 3d 212, 219-20 (2007) (O’Malley, J.), and I commend the majority for recognizing the community caretaking doctrine here. The doctrine is not the odd man of search and seizure law; its credentials are as solid as those of Terry (see People v. Cordero, 358 Ill. App. 3d 121, 127-28 (2005) (O’Malley, P.J., specially concurring)) and it must be integrated into our fourth amendment “boilerplate” alongside Terry.
As I have previously written, community caretaking searches or seizures are best evaluated under a balancing test. See People v. Cordero, 358 Ill. App. 3d 121, 134-35 (2005) (O’Malley, P.J., specially concurring).