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  • Philana Smoot Motion To Dismiss

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    Philana Smoot Motion to Dismiss

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    Philana Smoot Motion to Dismiss

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    Philana Smoot Motion to Dismiss

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    707 visualizações18 páginas

    Philana Smoot Motion To Dismiss

    Enviado por

    Marc MkKoy
    Philana Smoot Motion to Dismiss

    Direitos autorais:

    © All Rights Reserved
    Baixe no formato PDF ou leia online no Scribd
    Sinalizar o conteúdo como inadequado
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    IN THE CIRCUIT COURT OF ‘THE TWENTIETH JUDICIAL CIRCUIT | FILED ST. CLAIR COUNTY, ILLINOIS $1. CLAIR COUNTY JUL 28 2014 PEOPLE OF THE STATE OF ILLINOIS, ) Plaintiff, ) ) vw ) Non Traffic Complaint No(s). 1117400 mM 1119030 Philana M. Smoot ) ‘Accused. ) 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 Peace Officer” (Complaint Number 1119030) in violation of 720 ILCS 5/71-1(a). “That the aforementioned report signed by Patrolman Montgomery contains statement where Anita Coleman, an employee and not the owner of the French Village Motel alleges “verbal complaints from other customers about the suspect harasing 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 ofthe minimal police investigation. In this ease 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. FILED ST CLAIR COUNTY JUL 28 204 [ARGUMENT - LACK OF PROBABLE CAUSE “That as a result ofthe arrest, the Accused was charged with Criminal Trespass violation of 720 ILCS 5/21-3(a)(3), which states: “A person commits criminal trespass 10 real property swhen he or she: knowingly and without lawful authority remains upon the land of another, afier receiving notice from the owner or occupant to depart.” The Accused had in her possession a Registration Receipt (No. 015054) (SEE ATTACHED EXBIBIT 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 protested from being summarily evicted on the word of an employee and protected under 735 JLCS 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 @ tenant, notwithstanding @ 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 ofthe motel with regard to the Complainant's allegations, The report makes no mention as to whether the Accused had engaged in any activity, pastor 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 inthe manner alleged. “Where the question is whether a crime has been committed, rather than whether a particular individual committed a known rime, more evidence will be required to satisfy the probable eause requirement for arrest." In re D.G., 144 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 informant's reliability is critical to a finding of probable cause. Prior to llinois , Gates, 462 USS. 213, 223, 103 S.Ct 2317, 76 L. Ed2d 527 (1983), under Aguilar v. ‘Texas, 378 US. 108, 84 S.Ct. 1509, 12 L Ed2d 723 (1964), and Spinnelliv. United States, 393 U.S. 410, 89 S.Ct 584, 21 L. Bd2d 637 (1969), the police, in obtaining e 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 informant’s “basis of knowledge” for knowing that a crime was being. committed. Second, the police had to show that either thatthe informant was ‘was reliable on this occasion. Gates did away with this structured test to henceforth assert that probable c#0S= "Would be asse: under a “totality ofthe circumstances” analysis, under which the basis of knowledge and the credibility of the informant would be important factors, but not dispositive, Nonetheless, the tipser's reliability remains important. People v. Williams, 147 I.2d 173, 209-210, $88 N.E.2d 983 (1981). In light of the totality of the circumstances, with the Aecused occupying a room on the motel premises, no corroborating witnesses, a rental receipt forthe room, as wel as an employee passing hearsay information to the police, there should have been an inquiry into the Accused’ right of possession forthe room and her presence on the property which would have barred the officers from arresting the ‘Accused for the charge of eriminal trespass to real property. ‘There is nothing on the record which satisfies ‘the lawful requirements for a “charge”, be itan “indictment”, “information”, or “complaint”, that being, ‘written statement, which is verified” and presented to court, except inthe case ofan 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 forthe commission of an offense. I the State purports that there isa lawful Charge oon 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 IlApp.2d 388, 234 N.E.2d 161. Accused does not accept the request to appear by way of the Non-Traffie Complaint and will not waive the filing of a complaint, which is defective, and want of verifiation. Supra. Upon the imely 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 @ verified complaint. Village of Willowbrook v. Miller, App.1966, 72 Il App.2d 30, 217 N.E.2d 808. For there to be an arrest warrant there must first be a sworn complaint, information, or indictment. People v. Harding, 1966, 34 11.24 475, 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 seg. 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 JLCS 5/107-9(a). There has been no Complaint which has been subscribed and swom to by a complainant, in violation of 725 ILCS 5/107-9(6)(4). Absent a lawful Complaint there is, as well, no warrant of arrest against the Accused. a) ST CLAIR COUNTY JUL 28 2014 Hi lag Incl! cases, be they with or without a warrant, there must be & sworn complaint or indictment before any prosecution of the Accused can be deemed as lawful. People v. Harding, 1966, 34 Il.2d 475, 216 jictment and affords the State N.E.2d 147. The Non-Traffic Complaint is neither a sworn complaint 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 examined by a court to determine probable cause and issue an arrest warrant. ‘The requirement ofa “verified complaint” as prerequisite forthe issuance of an arest warrant is set forth in both the Constitution of the Unites States of America and the Constitution for the State of Illinois. “The tight 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 10 be seized.” Constitution ofthe 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 patiulary describing the place tobe searched and the persons or things tobe seized” Constitution for the State of Ilinois Article II Section 6 (Emphasis added) ‘There has been no written statement presented to @ 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 IMlinois law provides for the methods by which a prosecution may be commenced. 725 ILCS 5/I11-1 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 « 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 5/102-1] "Indictment" means a written statement, presented by the Grand Jury 10a 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 State's Attomey 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.1946, 72sBlARaA EBON N.A 2d 809, People v.Stex, pp. 1942, 39 N.E.2d ves from the Legislature and codified at 5 ILCS 5/255 et. seq. ‘The power to administer oaths (Oaths and Affirmations Act) 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 swom 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 tag, 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 itis 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 Non- Traffic Complaint(s) for reasons stated herein based on sound legal reasoning, statutory authority, and protections afforded by State and Federal Constitutions. Respectfully submitted, FILED SST.CLAIR COUNTY Philana M. Smoot, Pro se 304 Estate Drive Ofallon, 11 62269 Propria Persona 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 M. Smoot, Accused Pro Se in Propria Persona PATIENT: — Philana Smoot Pop: Charlene Ellsworth Dos: 03/09/1979 TODAY'S PROVIDER: Charlene A. Ellsworth MD VISIT TYPE: Office Visit DATE: 08/26/2013 3:42 PM PATIENT PLAN Thank you for choosing us for your healthcare needs. The following is a summary of the outcome of today's visit and other instructions and information we hope you find helpful PTSD (post-traumatic stress disorder) (308.81) |1am sory that you are going through such a dificult time right now. We are going to start by 1) increasing your amitryptlie. I sent in a new prescription of a higher dose to Medicine Shoppe and 2) trying to get a referral to bje behavioral health In the inteirm, 1 strongly encourage you to reach out to your church community to see if you can find any assistance ‘We will see you in a few weeks to see how you are doing Chronic Problems Hearing joss \ctive Medications Medication Name Generic Name Directions Diagnosis Prescribed Elsewhere amitriptyline 75 mg tablet AMITRIPTYLINE HCL take 1 tablet by oral route N every day at bedtime Allergies No known allergies Vital Signs Time; BPiiniPulse’ Resp Temp Hifi Htin Wtlb Wtoz BMI kgim2 Pulse Hg n Imin F Ox 3:54PM 120/70 72 98.5 675 209 32.25 FILED ST CLAIR COUNTY JUL 28 2014 Sincerely, Charlene A. Ellsworth MD Document generated by: May M. Tarroum 08/26/2013 4:44 PM Smoot, Philana 03/09/1979 Page 1/2 Patient Name SMOOT, PHILANA, ‘Account Number Y00060223590 Kenneth Hall Regional Hospital Emergency Department Diagnoses Physical Assault Bunt Head Trauma Injury Contusion R Face , Injury Contusion Wrist Bilaterally , Injury Contusion Distal L Forearm Injury ‘You nave bean evaluated today by @ healincare provider prachang Emergency Medicine, In most cases follow-up care ls recommended with your tegula: Doctor, HMO or Cine tin 2 cays) Dowtor (HMO Cine Cat for appointment as soon as posse. IDENTIFY youre as.an ER Patent you dont have» doc" or nes sega alow bh Physiden'Specaist_ ALBARCHA,.BASSAM MD Accress 400N 8TH STREET-STE 238 Mech 1/30 EASTSTLOUISIL 62201 ngs 17 Prone 618-274-9106 Aston! nstuctons {f the symptoms worsen or new symptoms develop return to the Emergency Department (ED) immediately. Call your doctor for 618-274-1900 Physician (Print) Elster, Steve MD Dae Kenneth Hall Regional Hospital Emergency Department Phone: 618-274-1900 Prescriptions Medical Record Number M000049632 ‘Nurse Signature: Post-it? Fax Not 7671 fe OOM. Adews [raibere Discharge Instfliétions Discharge DateTime 8/1/2011 Date 5/11/2011 AM “Adaltonalinsiructons wore glven on he following conaltons: © Abdominal Pain [Neck Strain ~ {B Alerge Reaction [B) Nose Bleed (Basta {B Mite Ea nfeson Back Pan Post hes Pain Sore ThroalPhanniis EB connctvits {@ Threatened Aborion [© Comeal AbrasonEye Injury | [Toothache Fever {B Upper Respirator Infection (6 Fracure/Spransvan UTUKianey ifecbon Has nury Vaginal Blosing [5 High Blood Pressure Vomting?Darties i Kioney Stone Wound CareSutxes Other: & You may return to work/schoo! today. ‘You may retum to worklschoo! “This information may be released to my school or employer 1 It you had x-rays or blood tests, please note that these don't ‘always show what's wrong. Sometimes xrays dor't stow broken bones. After review by a speciast you willbe notified if there is an abnormality ‘ou may nol crive or operate heavy machinery because the medicines you have may make you siepy. “Patient Sonate Date Printed 5/11/2011 Patent Name SMOOT, PHILANA 08 03/09/1979 Rx; Motrin 60Ging BPmouEA GETS MAES aap as Heedee For PAiIFEVEr Y°HoAlo Fer?! #304thiayp VOID VoID VoID voID voID voiD VOID VOID voip void voiD vor This Prescription is VOID Hf submitted to a Pharmacy 72 hours after the Date and Time listed above. Physician (Print ‘SUBSTITUTION PERMISSIBLE.N ORDER FOR BRAND NAME TO BE DISPENSED, Orebiy,, Olusola MD | THE PRESCRIBER MUST HANDWRITE "BRAND MEDICALLY NECESSARY" ON PRESCRIPTION. FILED ST CLAIR COUNTY JUL 28 2014 a8 Chi’ Kenneth Hall Regional Hospital Medication Reconciliation Patient Name - SMOOT, PHILANA. Medical Recore No. M000049632 Account Number ¥00060223590 Date ot ED Vist §/44/2014 Allergies Physician Order Continue Medication? Medications Administered in the Emergency Department Toradol 30 mg IVP YES NO fledication Prescription provided on Discharge Motrin 600ma by mouth aPC 4 times a day as needed for Pain/Fever #30 (thirty) YES NO FILED ST CLAIR COUNTY JUL 28 204 Head Injury You have suffered a head injury. Common symptoms include headache, nausea, vomiting (once or twice), and slight dizziness or sleepiness. There may be some swelling and pain. A head injury can cause slow bleeding or other problems inside the head that may not be detected at this time. You are being allowed to go home but a relative or friend should stay should stay with you and read the following instructions, Have this relative or friend check you every four hours for the next 24-28 hours. You must report all observations to your follow-up doctor. ‘Treatment: ‘+ Ifprescribed, take all medications as directed. IMPORTANT: DO NOT STOP taking the medication just because you feel better. DO NOT TAKE any sedatives or sleeping pills. DO NOT TAKE aspirin or compounds containing aspirin. Also avoid Motrin, Advil, Ibuprofen and similar drugs. Use acetaminophen (Tylenol, Panadol, Tempra, Liquiprin, etc.) if needed. + Donot eat or drink much for the next 24 hours. Clear liquids are best if your stomach is upset. DO NOT DRINK alcoholic beverages. + Rest in bed. Sleep or nap with the head elevated on at least one (1) or two (2) PILLOWS. Do not sleep flat. ‘No school for children or work for adults. Do not exert yourself. Do not drive a car or operate tools or instruments which could harm you if you were not alert. Contact your doctor or return to the emergency department immediately if any of the following occur: + Fever greater than 100 degrees or shaking chills begin or worsen. + Persistent nausea or vomiting (more than twice). ¢ Confusion, unusual drowsiness, personality changes or loss of memory. (such as if the patient cannot answer a simple question like what day is it) + Dizziness, trouble walking or staggering gait. Convulsions or seizures such as twitching or jerking movements of either the eyes, arms, logs or body. Pupils of unequal size. The pupil is the dark center portion of the eye. Asevere headache, or a headache that is worsening or constant. Weakness or trouble with the use of arms or legs or areas of numbness. Unconsciousness or fainting. Stiff neck, ‘Visual disturbances including blurring of vision and/or double vision or sensitivity to light. Ringing or other unusual sounds in the ear. Bleeding or clear fluid drainage from the ears or nose. Difficulty speaking or slurred speech. Shortness of breath or difficulty breathing. ‘Any other unusual or abnormal symptoms. FILED ST CLAIR COUNTY JUL 28 204 iirc [eauaeezo: | i SFT BT IS TTA TTIOO WV SIAYTSTATIOR “geet TTT | UT anes ow ante fobs vouvan 005

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