Judicial Rulings

Illinois Supreme Court

Court upholds roadblocks to apprehend drunk drivers

ROADBLOCKS may be used to apprehend drunken drivers without any violation of Fourth Amendment rights, according to a decision handed down November 2 by the Illinois Supreme Court in People v. Bartley (Docket No. 60593). The unanimous decision in this case of first impression was written by Justice Seymour Simon.

In December 1982 state and local police in Macomb set up a roadblock ostensibly to make checks of drivers' licenses, but circuit, appellate and supreme court judges all found that this was a subterfuge to apprehend violators of laws against driving while under the influence of alcohol. The plaintiff claimed that this violated Fourth Amendment guarantees against illegal search and seizure.

Justice Simon said, "There is no doubt that a roadblock stop is a seizure for fourth amendment purposes," but that "the degree of intrusion on the individual's privacy must be balanced against the strength of the public need for the intrusion," and that "there can be no question that drivers under the influence of alcohol pose a substantial threat to the welfare of the citizenry of Illinois."

The court cited decisions of the U.S. Supreme Court supporting the validity of roadblocks where the public interest was great and the objective and subjective intrusion on privacy (i.e., "the physical and psychological intrusion[s]") minimal.

Simon's decision described five "factors relied upon by other courts in addressing this question" but warned that these are not intended as an ironclad formula. Decision to establish a roadblock and selection of site by supervisory personnel reduces the likelihood of arbitrary enforcement. A similar limit on the discretion of field officers, one of the controlling considerations in the area of subjective intrusion, is a procedure to stop vehicles in "a preestablished, systematic fashion," rather than randomly. A third check on discretion of individual officers is the "existence of guidelines on the operation of a roadblock," although absence of such guidelines was not viewed as fatal since it would not affect a driver's fear of arbitrary enforcement — one of the considerations in judging subjective intrusion.

Obviousness of the official nature of a roadblock and the safety of its operation apply to both subjective and objective intrusion since they affect both a driver's anxiety and actual physical safety. Similarly, advance publicity about the establishment of roadblocks, without specifying exact location, would allay drivers' anxiety. This was also seen as being a strong deterrent to drunken driving. Here, again, absence of this factor was not seen as destroying the validity of roadblocks. Similarly, the court held that highly visible patrols might be a stronger deterrent, but that the public safety still justified the less effective procedure.

The court concluded "that no probable cause and no individualized suspicion is required to establish a roadblock designed to deter and detect DUI violators." Similar decisions in other jurisdictions, as well as a small number of contrary opinions were cited. While the roadblock in question did not meet all of the tests outlined, it was found to have been "operated in accordance with constitutionally acceptable procedures."

F. Mark Siebert

February 1986/Illinois Issues/45

Judicial Rulings

No guilty plea; no plea bargaining agreement

WHEN a prosecutor withdraws a plea agreement, a defendant who has not pleaded guilty is not entitled to the same rights as one who has, the Supreme Court ruled December 3 in People v. Kathleen Carol Boyt (Docket No. 61229). The 4-3 decision upholds the appellate court, which remanded the case to the circuit court for further proceedings.

Boyt was indicted by a Kane County grand jury in 1983 on two counts of armed robbery. Boyt claimed that under an agreement with the prosecution, she would testify against codefendant Johnny Banks in exchange for a reduction of the charges, six months in the county jail, treatment in a residential drug program and probation. But before the agreement could be consummated, Banks pleaded guilty to armed robbery and was sentenced to seven years in prison. The state then was unwilling to abide by the agreement, which it contended did not exist. The circuit court dismissed the indictments against Boyt after the prosecutors declined to abide by the plea agreement.

According to the Supreme Court, the assistant public defender representing Boyt told the assistant state's attorney prosecuting the case that Boyt would plead guilty to lesser charges and testify against codefendant Banks. The assistant state's attorney subsequently went to Banks' attorney and said that if the case were to go to trial, Boyt would testify against Banks, according to the court.

Boyt asked to be given the sentence set under the plea agreement, maintaining that she had a valid agreement with the state and that denial of the agreement deprived her of due process. But the court ruled that Boyt had not pleaded guilty and was not entitled to the same rights as a defendant who had done so.

"When the prosecution breaches its promise with respect to an executed plea agreement, the defendant has pleaded guilty on a false premise and it cannot be said that his guilty plea was knowingly and voluntarily made," Justice Thomas J. Moran wrote for the majority. "However, when a prosecutor withdraws from a plea agreement prior to the actual entry of a guilty plea by defendant, the same due process concerns are not necessarily implicated. . . .

"Plea bargaining, when properly administered, is to be encouraged. However, to require specific enforcement here, where a requisite contingency was not met [the guilty plea was not given], would only deter prosecutors from engaging in plea negotiations altogether and create dispute about the existence and contents of plea bargains."

Three justices, William G. Clark, Joseph H. Goldenhersh and Seymour Simon, disagreed. "It is evident," Clark wrote, "that the defendant's promise alone was valuable to the state, since the state was able to use it to compel codefendant Banks to plead guilty." He added that although Boyt technically did not plead guilty, by agreeing to testify she did incriminate herself and was at least confessing knowledge of the crime.

Marc D. Allan

Admission of a client's guilt is a bad defense

ADMISSION of a client's guilt as a strategy to focus on the death penalty may constitute ineffective assistance of counsel and be a cause for retrial. The Illinois Supreme Court handed down its decision on November 21 in People v. Hattery (Docket No. 58789). Justice Thomas J. Moran wrote the opinion; Justice Ben Miller dissented.

One of the defendant's attorneys said in the opening statement: "We are not asking you to find Charles Hattery not guilty. At the end of your deliberations, you will find him guilty of murder.... Once you have found him guilty, we will proceed and you will find him eligible for the death penalty. The question, and the only question facing you, will be whether to impose the death penalty on Charles Hattery. . . ." Attorneys offered no theory of defense, offered no evidence and made no closing statement.

Since the defendant pleaded not guilty, the high court found that this strategy constituted denial of Sixth Amendment rights to an effective defense in an adversarial situation. The court reversed Hattery's convictions for murder and vacated his death sentence. The case was remanded to the circuit court for a new trial.

F. Mark Siebert

Reinstatement of attorney denied

REINSTATEMENT of a disbarred attorney must, among other things, involve recognition of the seriousness of the misconduct. Speaking for the Illinois Supreme Court In re Gottlieb (Docket No. 61870) handed down November 21, Justice Seymour Simon said that "an attorney who admits he was guilty of the conduct for which he was sanctioned cannot show he is rehabilitated unless he also shows repentance.

The petitioner was disbarred on consent because of his conviction for mail fraud in the bribery of several state officials. At his reinstatement hearing he said that he only acted as a "delivery boy" for his clients. His petition said that he did not fail in his fiduciary responsibilities to his clients but was, if anything, "overprotective." Simon said, "It appears that he continues to see himself as a victim of, rather than a participant in, the illegal conduct of which he was convicted. . . .We require a disbarred attorney who seeks reinstatement to establish . . . that he recognizes fully the grievous nature of the offenses he acknowledges committing." The petition was denied.

F. Mark Siebert

46/February 1986/Illinois Issues