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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT ST.

CLAIR COUNTY, ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. Philana M. Smoot Accused. ) ) ) ) ) ) )

Non Traffic Complaint No(s). 1117400 1119030

MOTION TO QUASH ARREST AND DISMISS CHARGES Now comes Accused, Philana M. Smoot, appearing pro se and in her proper person, and moves this Honorable Court to quash a May 10, 2011 arrest and dismiss all charges on the grounds that the State is without jurisdiction for lack of probable cause to effect said arrest absent a verified complaint sworn to under pain of perjury with complainant and witnesses being examined under oath by a court, and that the State has failed prosecute by bringing proper charges within the 18 month timeframe proscribed by law, and that in order to protect her rights as guaranteed by the Constitution(s) of the United States of America and the State of Illinois, as well as conforming with requirements of law and justice, and in support thereof states:

FACTS The Accused was taken into custody following a warrantless arrest and received a Non-Traffic Complaint (Ticket No(s). 1117400 and 1119090) from the Fairview Heights Police Department on May 10, 2011, pursuant to allegations made by an employee of the French Village Motel, one Anita Coleman, as detailed in a report dated 05/10/2011 for Case Number: 11-04927, signed by Patrolman Montgomery of the Fairview Heights Police Department. A copy of said report is attached to this Motion.

The Accused was insufficiently charged with the offense of Criminal Trespass to Real Property (Complaint Number 1117400) in violation of 720 ILCS 5/21-3(a)(3), and Resisting a Peace Officer (Complaint Number 1119030) in violation of 720 ILCS 5/71-1(a).

That the aforementioned report signed by Patrolman Montgomery contains a statement where Anita Coleman, an employee and not the owner of the French Village Motel alleges verbal complaints from other customers about the suspect harassing them; the suspect going door to door at the motel harassing other customers; and being loud and obnoxious as she walks around outside the motel, but said report fails to mention any statements from alleged customers being harassed by the Accused, and bases any support for the arrest upon the word of Ms. Coleman.

This case lacks probable cause in light of the minimal police investigation. In this case, the police responded to an unsubstantiated claim without direct observation of the violation of an offense, and did thereby effect a warrantless arrest of the Accused.

ARGUMENT LACK OF PROBABLE CAUSE That as a result of the arrest, the Accused was charged with Criminal Trespass to Real Property in violation of 720 ILCS 5/21-3(a)(3), which states: A person commits criminal trespass to real property when he or she: knowingly and without lawful authority remains upon the land of another, after receiving notice from the owner or occupant to depart. The Accused had in her possession a Registration Receipt (No. 015054) (SEE ATTACHED EXHIBIT A) which shows she had paid in advance for the period 5/6/11 thru 5/13/11. As the Accused had paid for, and had legal right to occupy the room and use of the common areas, she was protected from being summarily evicted on the word of an employee and protected under 735 ILCS 5/9-101 from the forcible entry by the Fairview Heights Police without probable cause of an actual offense, and furthermore barred from arresting the Accused for Criminal Trespass to Real Property as she had a lawful right to occupy the premises as a tenant, notwithstanding a court order demanding the conviction of an occupant.

The Fairview Heights Police make no mention of any subsequent investigation or inquiry with any alleged customers of the motel with regard to the Complainants allegations. The report makes no

mention as to whether the Accused had engaged in any activity, past or present, which would incline the Complainant to not wish them on the property or whether the Accused had engaged in any possibly illegal activity which could have provoked the Complainant to act in the manner alleged. Where the question is whether a crime has been committed, rather than whether a particular individual committed a known crime, more evidence will be required to satisfy the probable cause requirement for arrest. In re D.G., 144 Ill.2d, 410, 581 N.E.2d 684 (1991).

In addition, the police lacked probable cause because the informer(s) on whom they based their probable cause, also lacked credibility. An informants reliability is critical to a finding of probable cause. Prior to Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct 2317, 76 L. Ed2d 527 (1983), under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L Ed2d 723 (1964), and Spinnelli v. United States, 393 U.S. 410, 89 S.Ct 584, 21 L. Ed2d 637 (1969), the police, in obtaining a search warrant based upon the representations of an informant, needed to make a two-pronged showing, First, the police, applying for the warrant needed to show the informants basis of knowledge for knowing that a crime was being committed. Second, the police had to show that either that the informant was inherently reliable, or that he was reliable on this occasion.

Gates did away with this structured test to henceforth assert that probable cause would be asserted under a totality of the circumstances analysis, under which the basis of knowledge and the credibility of the informant would be important factors, but not dispositive. Nonetheless, the tipsters reliability remains important. People v. Williams, 147 Ill.2d 173, 209-210, 588 N.E.2d 983 (1991). In light of the totality of the circumstances, with the Accused occupying a room on the motel premises, no corroborating witnesses, a rental receipt for the room, as well as an employee passing hearsay information to the police, there should have been an inquiry into the Accuseds right of possession for the room and her presence on the property which would have barred the officers from arresting the Accused for the charge of criminal trespass to real property.

In all cases, be they with or without a warrant, there must be a sworn complaint or indictment before any prosecution of the Accused can be deemed as lawful. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147. The Non-Traffic Complaint is neither a sworn complaint or indictment and affords the State no jurisdiction in the instant matter unless the Accused chooses to appear and enter a plea thereto and proceed to trial without objection. The Accused will not proceed, nor appear, to answer any charge in the instant matter as no lawful order compelling his appearance exists.

The Non-Traffic Complaint was not presented to a court for verification or an opportunity to be examined by a court to determine probable cause and issue an arrest warrant.

The requirement of a verified complaint as a prerequisite for the issuance of an arrest warrant is set forth in both the Constitution of the Unites States of America and the Constitution for the State of Illinois. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Constitution of the United States of America Amendment IV (Emphasis added) The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized. Constitution for the State of Illinois Article II Section 6 (Emphasis added)

There has been no written statement presented to a court which lawfully charges the Accused with the commission of an offense. 725 ILCS 5/102-8 "Charge" means a written statement presented
to a court accusing a person of the commission of an offense and includes complaint, information and indictment.

Illinois law provides for the methods by which a prosecution may be commenced. 725 ILCS 5/111-1 When authorized by law a prosecution may be commenced by: (a) A complaint; (b) An
information; (c) An indictment. The Non-Traffic Complaint is neither a complaint, an information, or an

indictment.

The form of charge against the Accused does not meet the lawful requirements for an indictment, as there has been no written statement presented by a Grand Jury to a court which charges the commission of an offense. 725 ILCS 5/102-11 "Indictment" means a written statement, presented
by the Grand Jury to a court, which charges the commission of an offense.

The form of charge against the Accused does not meet the lawful requirements for an information, as there is no verified written statement signed by a States Attorney and presented to a court which charges the commission of an offense. 725 ILCS 5/102-12 "Information" means a verified written
statement signed by a State's Attorney, and presented to a court, which charges the commission of an offense.

The form of charge against the Accused does not meet the lawful requirements of a complaint, as there is not a verified written statement presented to a court, which charges the commission of an offense.

725 ILCS 5/102-9 "Complaint" means a verified written statement other than an
information or an indictment, presented to a court, which charges the commission of an offense.

Verification, has been held by Courts of this State to mean a written statement made under oath or affirmation before any officer empowered to administer oaths and which, for any willfully false or misleading statement made thereof, subjects the affiant to pains and penalty of perjury. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809, People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.

The power to administer oaths derives from the Legislature and codified at 5 ILCS 5/255 et. seq. (Oaths and Affirmations Act)

There is nothing on the record which satisfies the lawful requirements for a charge, be it an indictment, information, or complaint, that being, a written statement, which is verified and presented to a court, except in the case of an indictment which must be signed by the foreman of a Grand Jury. Absent conformance with the lawful requirements herein enumerated, there can be no lawful charge against the Accused for the commission of an offense. If the State purports that there is a lawful Charge on the record, to which the Accused refutes and objects, the Accused would then assert that such a Charge is insufficient and defective, and not represented by way of an instrument to which he will waive any defects thereof by pleading thereto, offering testimony, or otherwise proceeding to trial without objection. People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161. Accused does not accept the request to appear by way of the Non-Traffic Complaint and will not waive the filing of a complaint, which is defective, and want of verification. Supra. Upon the timely and appropriate pre-trial motion or objection to the lack of statutory sufficiency in producing a verified complaint for the purposes of issuing a warrant for arrest, the State has no discretion and may only proceed upon the filing of a verified complaint. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809. For there to be an arrest warrant there must first be a sworn complaint, information, or indictment. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147. The Non-Traffic Complaint is neither a sworn complaint, information, or indictment, and affords the State no jurisdiction in the instant matter.

The Non-Traffic Complaint masquerading as a defective and insufficient complaint by which the State seeks to prosecute the Accused also fails to support statutory requirements for the issuance of an arrest warrant found at 725 ILCS 5/107-9 et seq. There is no Complaint which has been presented to a court charging an offense had been committed where the complainant or witnesses were examined under oath or affirmation in violation of 725 ILCS 5/107-9(a). There has been no Complaint which has been

subscribed and sworn to by a complainant, in violation of 725 ILCS 5/107-9(b)(4). Absent a lawful Complaint there is, as well, no warrant of arrest against the Accused.

Not only must a criminal complaint be in writing to meet statutory requirements, it must also be subscribed and sworn to by the complainant. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147. The Non-Traffic Complaint by which the State seeks to charge the Accused with a criminal offense has not been subscribed nor sworn to by a complainant.

In light of the foregoing facts, the police were without authority to effectuate a lawful arrest of the Accused, and such arrest thereby being without probable cause, the charge of Resisting a Peace Officer should likewise be dismissed as fruit of the poisonous tree stemming from an unlawful arrest.

ARGUMENT FAILURE TO PROSECUTE Considering the lack of a verified complaint or arrest warrant, the State has failed to file proper charges within the proscribed 18 month timeframe mandated by 720 ILCS 5/3-5(b), Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3-6, a prosecution for any offense not designated in Subsection (a) must be commenced within 3 years after the commission of the offense if it is a felony, or within one year and 6 months after its commission if it is a misdemeanor.

WHEREFORE, the Accused respectfully requests this Honorable Court to quash the arrest and dismiss charges against alleged against the Accused by way of the above-captioned NonTraffic Complaint(s) for reasons stated herein based on sound legal reasoning, statutory authority, and protections afforded by State and Federal Constitutions.

Respectfully submitted, _______________________________________ Philana M. Smoot, Pro se in Propria Persona

304 Estate Drive Ofallon, Il 62269

CERTIFICATE OF SERVICE I hereby certify that on DATE, 2013, a true and correct copy of the foregoing document or pleading entitled MOTION TO QUASH ARREST AND DISMISS CHARGES Was personally delivered to: Clerk of the Circuit Court of the Twentieth Judicial District, St. Clair County, Illinois #10 Public Square Belleville, Illinois 62220

______________________________________ Philana M. Smoot, Accused Pro Se in Propria Persona