102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB5438

 

Introduced 1/31/2022, by Rep. Jawaharial Williams

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/103-1  from Ch. 38, par. 103-1

    Amends the Code of Criminal of Procedure of 1963. Provides that when a person is arrested, a peace officer may not subject the person to a custodial interrogation for more than 8 hours during a 24-hour period. Defines "custodial interrogation".


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A BILL FOR

 

HB5438LRB102 25496 RLC 34784 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Section 103-1 as follows:
 
6    (725 ILCS 5/103-1)  (from Ch. 38, par. 103-1)
7    Sec. 103-1. Rights on arrest.
8    (a) After an arrest on a warrant the person making the
9arrest shall inform the person arrested that a warrant has
10been issued for his arrest and the nature of the offense
11specified in the warrant.
12    (b) After an arrest without a warrant the person making
13the arrest shall inform the person arrested of the nature of
14the offense on which the arrest is based.
15    (b-5) This subsection is intended to implement and be
16interpreted consistently with the Vienna Convention on
17Consular Relations, to which the United States is a party.
18Article 36 of that Convention guarantees that when foreign
19nationals are arrested or detained, they must be advised of
20their right to have their consular officials notified, and if
21an individual chooses to exercise that right, a law
22enforcement official is required to notify the consulate. It
23does not create any new substantive State right or remedy.

 

 

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1        (1) In accordance with federal law and the provisions
2    of this Section, the law enforcement official in charge of
3    a custodial facility shall ensure that any individual
4    booked and detained at the facility, within 48 hours of
5    booking or detention, shall be advised that if that
6    individual is a foreign national, he or she has a right to
7    communicate with an official from the consulate of his or
8    her country. This subsection (b-5) does not create any
9    affirmative duty to investigate whether an arrestee or
10    detainee is a foreign national.
11        (2) If the foreign national requests consular
12    notification or the notification is mandatory by law, the
13    law enforcement official in charge of the custodial
14    facility shall ensure the notice is given to the
15    appropriate officer at the consulate of the foreign
16    national in accordance with the U.S. Department of State
17    Instructions for Consular Notification and Access.
18        (3) The law enforcement official in charge of the
19    custodial facility where a foreign national is located
20    shall ensure that the foreign national is allowed to
21    communicate with, correspond with, and be visited by, a
22    consular officer of his or her country.
23    (b-6) When a person is arrested, a peace officer may not
24subject the person to a custodial interrogation for more than
258 hours during a 24-hour period. In this subsection (b-6),
26"custodial interrogation" means any interrogation (i) during

 

 

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1which a reasonable person in the subject's position would
2consider himself or herself to be in custody and (ii) during
3which a question is asked that is reasonably likely to elicit
4an incriminating response.
5    (c) No person arrested for a traffic, regulatory or
6misdemeanor offense, except in cases involving weapons or a
7controlled substance, shall be strip searched unless there is
8reasonable belief that the individual is concealing a weapon
9or controlled substance.
10    (d) "Strip search" means having an arrested person remove
11or arrange some or all of his or her clothing so as to permit a
12visual inspection of the genitals, buttocks, anus, female
13breasts or undergarments of such person.
14    (e) All strip searches conducted under this Section shall
15be performed by persons of the same sex as the arrested person
16and on premises where the search cannot be observed by persons
17not physically conducting the search.
18    (f) Every peace officer or employee of a police department
19conducting a strip search shall:
20        (1) Obtain the written permission of the police
21    commander or an agent thereof designated for the purposes
22    of authorizing a strip search in accordance with this
23    Section.
24        (2) Prepare a report of the strip search. The report
25    shall include the written authorization required by
26    paragraph (1) of this subsection (f), the name of the

 

 

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1    person subjected to the search, the names of the persons
2    conducting the search, and the time, date and place of the
3    search. A copy of the report shall be provided to the
4    person subject to the search.
5    (g) No search of any body cavity other than the mouth shall
6be conducted without a duly executed search warrant; any
7warrant authorizing a body cavity search shall specify that
8the search must be performed under sanitary conditions and
9conducted either by or under the supervision of a physician
10licensed to practice medicine in all of its branches in this
11State.
12    (h) Any peace officer or employee who knowingly or
13intentionally fails to comply with any provision of this
14Section, except subsection (b-5) of this Section, is guilty of
15official misconduct as provided in Section 103-8; provided
16however, that nothing contained in this Section shall preclude
17prosecution of a peace officer or employee under another
18section of this Code.
19    (i) Nothing in this Section shall be construed as limiting
20any statutory or common law rights of any person for purposes
21of any civil action or injunctive relief.
22    (j) The provisions of subsections (c) through (h) of this
23Section shall not apply when the person is taken into custody
24by or remanded to the sheriff or correctional institution
25pursuant to a court order.
26(Source: P.A. 99-190, eff. 1-1-16.)