Articles Posted in Arrests

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Last month an African-American teenager was fatally shot by the Chicago police at the conclusion of a car chase. An article on WMUR.com reports that the police attempted to pull over the 18-year-old as the Jaguar convertible that he was driving had been reported stolen. The teen refused to pull over, led the police on a chase through the South Side of Chicago, hit a police cruiser and a parked car, and eventually two police officers opened fire on him. The teenager died from his injuries and his family has since filed a federal civil rights lawsuit alleging wrongful death and excessive force.

The news is highlighting this shooting as the latest event in a string of violent confrontations between African-American communities and police officers in Chicago. Unfortunately, there have been several police incidents lately during which members of the community claim police officers used excessive force. Chicago’s Police Department is attempting to foster trust between officers and community members by arming their police officers with body cameras. The idea is that the cameras will record police interactions with civilians in order to provide evidence in case any misconduct occurs. However, police body cameras can only serve their intended purpose if they are turned on and functioning properly, which is not always the case. During the police shooting described above, the body camera of the officer who fatally shot the teen failed to record during the shooting. The police department reports that they are currently in a body camera pilot program and that officers received their cameras approximately eight to 10 days before the shooting. At this time it is not clear why the officer’s body camera was not recording at the time of the shooting.

Body Camera Laws in Illinois

POLICE CAR- BLUE LIGHTS“You have the right to remain silent. Anything you say may be used against you in a court of law.  You have the right to an attorney.” The Miranda warning, or Miranda rights, are probably familiar to anyone who has watched police dramas or true crime shows on television, but the practical aspects of them are often misunderstood.

History

People in the United States have the rights under the Fifth Amendment against self-incrimination and under the Sixth Amendment to an attorney when they are being accused of a crime by law enforcement. The Miranda warning developed out of a Supreme Court holding in Miranda v. Arizona, 384 U.S. 436 (1966) which set out that in order for a statement made to law enforcement officers to be admissible in court the accused needs to be made explicitly aware of these two rights. The Miranda warning statement thus serves two purposes. First, it defends the accused by notifying them of their rights, and second it ensures that any statements that the accused makes to the police will be admissible in court.

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Law enforcement needs community cooperation, involvement, and support. The community needs law enforcement to “protect” it from criminal behavior and to “serve” it in dangerous situations. Both the community and law enforcement need each other in order to keep chaos at bay. But there are communities and neighborhoods in every state that do not understand this concept of interdependency. In those communities, the mistrust runs deep, unfortunately, spurred on by the media, by special interest groups for whatever political clout they feel they can get from it, and of course criminal elements that take advantage of the chasm between the police and residents.

The special interest groups, out of their own misguided intentions and misunderstanding of the importance of having the police and the communities work together, are convinced that law enforcement is the enemy. They are waging a very effective PR campaign again law enforcement, so much so that some communities are being made to believe that law enforcement and not the gang activity in the communities is destroying the neighborhoods.

Civil disobedience and glaring disrespect is the name of the name when there is any interaction between the police and members of these communities, including something as small as a traffic stop. These problems keep the police on high alert when they are called upon to enforce the law in these communities. This lack of mutual respect and trust between law enforcement and the neighborhoods has created a breeding ground for criminal activity.

Police Station (1)When crime on the streets gets so out of control, when criminal gang members have their run of the neighborhoods, when they can commit violent crimes without compunction, including violent assaults and murder, then you will find at the very foundation of such lawlessness a total breakdown of community involvement and lack of support for the law enforcement.

Gang Members Given “Get Out of Jail” Passes

Get out of jail passes, also known as parole, are not normally given to convicts with a long history of violence. In fact, when crimes are committed by persons while out on parole, the parole is revoked and the individual is re-arrested and required to not only serve any new prison sentence, but also the remainder of the sentence from which he was paroled.

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Arrested, charged, prosecuted, imprisoned, but innocent. This scenario is played out over and over again in our judicial system across the nation. While America has one of the finest judicial systems in the world, sometimes we get it wrong and an innocent person ends up spending time in prison for a crime he or she did not commit. Sometimes an overzealous law enforcement officer does something inappropriate in order to effectuate the prosecution and imprisonment of that person, knowing that that person did not commit the crime.

The reason for the arrest and imprisonment of an innocent person due to police misconduct could be attributable to a number of things including greed, vindictiveness, revenge, or just plain abuse of power. Whatever the reason, we all know that it does happen from time to time.

This is not to say that we have rampant lawlessness in any of our police departments. Our men and women in blue do the thankless job of keeping our neighborhoods safe from crime and should be commended for their bravery in the face of a multitude of dangers and risks of physical harm to themselves. Without the police protecting our communities, there would be anarchy. They are needed to protect our peace, and they deserve our respect and gratitude.

The 5th Amendment right against self-incrimination is one of the most well-known rights in criminal defense, right up there with the right against unlawful search and seizure and the requirement that police read suspects the Miranda warnings. Yet a criminal suspect doesn’t always have “the right to remain silent”, and not have that silence used against him in court.

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Salinas v. Texas Requires Affirmative Claim of Right to Remain Silent

In Salinas v. Texas, the defendant was questioned in regard to a murder investigation. The defendant was not under police custody, thus he had not yet been read his Miranda warnings, which inform criminal suspects that they have the right to remain silent, and that any statements given can and will be used against them in court. The defendant voluntarily answered the officer’s questions in regard to the murder, until the officer asked whether a ballistics test would confirm that shells found at the crime scene matched the defendant’s shotgun. At this line of questioning the defendant simply stopped talking.

At trial the prosecution introduced the defendant’s silence as proof of guilt. Because the defendant had willingly spoken with police, the prosecution argued that the defendant’s refusal to answer that specific question was indicative of guilt. The defendant argued that using his silence as evidence of guilt violated his 5th Amendment right against self-incrimination. The trial court disagreed, and defendant was convicted. His appeals took the case to the United States Supreme Court.

The court affirmed the defendant’s conviction, ruling that the right to remain silent is an affirmative right. This means that in order for the right to apply – and for evidence of silence to not be used against the suspect in court – the defendant must say, “I am invoking my right to remain silent”, or similar words to that effect. Refusing to answer police questions is insufficient to invoke the right.

There are only two instances where the defendant’s failure to speak cannot be used against him. The first is where he is in police custody and has not been read his Miranda rights. The court said that such a circumstance is so coercive that the defendant need not affirmatively invoke the privilege because his statements cannot be considered voluntary.

The second is during trial, where the defendant has an “absolute right” not to take the stand, for whatever reason. The jury is not permitted to take the defendant’s failure to testify on his own behalf as evidence of guilt, nor can the prosecution suggest that the defendant’s failure to take the stand is proof of guilt.

The Supreme Court refused to accept the defendant’s argument that invocation of the 5th amendment right to remain silent should be assumed when a suspect refuses to answer police questions that would imply guilt. The court stated that while this may be the most probable reason for the person’s silence, it is not necessarily the only reason – his reason for not answering could be to protect somebody, to come up with a lie, or any other number of reasons. The purpose of the right to remain silent, the court stated, is not to protect all of the defendant’s statements, but only those that would tend to incriminate himself. Is it the defendant’s burden, the court stated, to invoke the privilege, and not for the prosecution to figure out the reason for the silence.

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A startling new report released by the American Civil Liberties Union (ACLU) found that Chicago police conduct more stop and frisks than any other police department in the nation. In 2014, the Chicago police conducted more than 250,000 stop and frisks that did not result in arrest, making the possibility very real that a vast number of them were unreasonable searches and seizures.

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Stop and Frisk in Chicago

The ACLU report indicates that 93 out of every 1,000 Chicagoans were stopped by a Chicago police officer in 2014. More alarming than their frequent use are the targets – 72% of all stops were of African-Americans, even though African-Americans comprise only 32% of the city’s population. They are more likely to be stopped in predominantly white neighborhoods as well. In the Near North District, which has only a 9.1% African-American population, they made up 57% of all stops.

I have discussed stop and frisks frequently on this blog, as they are one of the prime areas of police abuse and at the root of most unreasonable search and seizures. Under the 1968 U.S. Supreme Court Case Terry v. Ohio, the court ruled that law enforcement may stop any person on the street, provided the officer has a reasonable suspicion that the person has either committed, is in the process of committing, or is about to commit, a crime. Once the stop is complete, the officer may frisk the person only if he believes the person is dangerous or has a weapon.

While the courts over the years have carved out narrow exceptions regarding what constitutes “reasonable suspicion” – for example, loitering on a street corner does not generally rise to the level of suspicion necessary to justify a frisk, but officers can take into consideration the area when determining whether a person may be engaged in criminal activity – the rules are clear. While a person can be stopped for any reason, he cannot be frisked because he’s black walking through a white area. He cannot be frisked because he “looks” dangerous. He cannot be frisked because a crime was just committed in the immediate area, unless the person stopped matches the description of the suspect.

“Contact cards” filled out by police following such stops show that police are abusing their right to stop individuals. Chicago police officers complete contact cards for every stop that did not result in an arrest or charge, noting information about the person and the reason stopped. Information pulled from the cards shows that police are stopping individuals for dubious, if not completely unwarranted, purposes. And the fact that the cards are not completed if the stop did not lead to arrest or charges makes it impossible to accurately determine how many stops are of innocent Chicagoans.

The completed contact cards that were reviewed during the ACLU’s study show that many Chicago police officers have a poor understanding of what they are legally allowed to do during stop and frisk. This reinforces the fact that if you are stopped and subsequently arrested by police, even if they find illegal contraband during a frisk, you should not answer any question or make any statement until you have a lawyer by your side. Law enforcement is required to follow specific procedures in regard to search and seizures, and failure to adhere to those procedures can result in evidence against you being inadmissible at trial. But confess to committing a crime, even when the results of the frisk are later deemed inadmissible, and you will severely hinder the defense attorney’s ability to get the charges against you dismissed or win an acquittal at trial.

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An Indian Head Park man was arrested and charged with home invasion after allegedly gaining access to the victim’s home by impersonating a police officer and assaulting the man.

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Home Invasion: Separate Offense from Residential Burglary

While home invasion and residential burglary have similar elements – both involve unlawfully gaining entry into the home of another – they are two distinct crimes. Home invasion has the added element of unlawful entry of another person’s home knowing that at least one person is present in the home at the time of the invasion, or gaining entry by falsely representing himself to be someone else, with the intent to cause injury to the resident.

Like burglary, home invasion is a specific intent crime. The intent required for the crime applies to several different elements. In order to gain a conviction, the prosecution must prove that the defendant knowingly:

  • Entered another person’s home;
  • Entered the home knowing that one or more people were present, and;
  • Intended to cause harm.

In defending against a specific intent crime such as home invasion, the defense strategy is to raise as much doubt as possible regarding whether the defendant had the necessary intent for each element of the crime. The defense would therefore examine all of the circumstances surrounding the case to find any evidence that would tend to disprove intent. Such evidence may include:

  • Whether the home subject to the invasion was in the vicinity of the defendant’s home. If so, we would want to examine whether the defendant was intoxicated or under the influence of drugs, so that perhaps he mistakenly believed he was entering his own home, which is not a far stretch given some of today’s cookie cutter houses. If the defendant believed, even mistakenly due to his drunken state, that he entered his own home, his assault of the homeowner could not be considered intentional, since he would have believed he was protecting himself from a burglar.
  • Whether the defendant and the alleged victim knew each other and had any prior altercations. Is there any evidence to suggest that the two had had a verbal or physical altercation earlier that evening, and the fight continued in the victim’s home?
  • Whether the alleged victim assaulted the defendant first, prompting the defendant to retaliate in self-defense. The victim alleged that the defendant claimed he was a police officer to gain entry into the home. An examination of the victim’s history may show that he had outstanding warrants for his arrest, or past run-ins with law enforcement, so that his first reaction was to assault the “officer.”
  • Whether the defendant actually entered the home. If the assault is true, it cannot be a home invasion if the defendant did not knowingly enter the home. The defense would need to examine whether the initial assault took place on the front step of the victim’s home, and the defendant was pulled inside the home during the ensuing altercation. This would result in the charges being reduced, most likely to battery.

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An Evanston man was arrested and charged with burglary for allegedly breaking into three Elgin gas stations last month and stealing cash and Illinois state lottery tickets.

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Illinois Burglary Requires Intent to Steal

Under Illinois law a person commits the crime of burglary if:

  • He knowingly enters a building;
  • The entry is without permission, and;
  • His entry is with the intent to steal or commit a felony.

Burglary is a specific intent crime, which means the prosecution must prove that the defendant knowingly entered the premises without permission, and that he intended to steal once he was inside. This definition raises an interesting point about burglary that many people do not realize – it is possible to illegally enter a building without permission, steal something, and yet not be charged with burglary. How? It all depends on when the intent to steal was formed.

Here is an example. It’s freezing on the streets of Chicago, and a homeless man is looking for a warm place to spend the night. He breaks the window of a doctor’s office so he can sleep on the couches in reception. That is his only purpose in entering the office – to get a good night’s sleep in a warm place. At this point, he has fulfilled the first two elements of the burglary charge.

When he awakes in the morning, he notices an open drawer. Upon further inspection, he sees an envelope containing petty cash. He decides to take it, along with some drugs that were unlocked in a cabinet. Although he intended to steal from the doctor’s office when he took the money and the drugs, the man did not commit burglary. That is because his intent to steal was not present the moment he illegally entered the office, but was formed later. The intent to steal must be present when the person illegally enters a building.

Now this does not mean the man cannot be charged with a crime. He could be charged with trespass and theft, but not burglary. The distinction is significant, because burglary is a felony, whereas depending on the value of the items stolen, the theft may only be a misdemeanor, which means a much shorter prison sentence, if convicted.

Chicago Burglary Defense

In any case of burglary, the first line of defense would be to argue that it was not the defendant who broke into the gas stations. The article states that police linked him to the crimes through stolen lottery tickets. Assuming that they do not have images of him on video surveillance, then the only evidence linking him to the crime is the stolen lottery tickets. Possession of the lottery tickets in and of itself is not proof that he was the one who illegally entered the gas stations and stole the tickets. He may have received them from a friend after the fact, or he could have found them all discarded in a dumpster after the real thief tried to dump them. Regardless, even if he knew, or should have known, they were stolen, this does not make him guilty of burglary.

The second line of defense, as discussed above, would be to prove that the defendant did not have the intent to steal when he entered the premises. If it can be proven that he entered for any non-criminal purpose, and decided to steal only later, as discussed above he could not be charged with burglary.

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A Chicago man was arrested last week and charged with attempted first-degree murder after allegedly firing at two Chicago police officers as they were arresting him for shoplifting. The defendant allegedly fired once, though nobody was injured; he continued to fire not realizing the clip had fallen out.

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Attempted First-Degree Murder of Police Officer

A defendant can be charged with attempt of a crime if, with the intent to commit a specific offense, he commits “any act that constitutes a substantial step toward the commission of that offense.” To be convicted of attempted first-degree murder, the prosecution would need to prove that the defendant intended to actually commit that crime.

First-degree murder requires an intent to “kill or do great bodily harm”, or acting in a manner that creates a “strong probability of death or great bodily harm”, to another. If the prosecution could prove that the defendant in this case fire the officer’s gun with the intent to either kill them or cause them great bodily harm, then he can be convicted of attempted first-degree murder.

Assuming it can be proven that the defendant did purposely grab and fire the officer’s weapon during the arrest, as opposed to the trigger accidentally being pulled in the struggle, it firing due to a malfunction, or the officer actually being the one to fire it, then the prosecution would have the burden of proving intent to kill or harm. Defending against attempted first-degree murder would require arguing for a lesser crime, such as assault. This defense requires convincing the jury that the defendant fired the weapon not with the intent to kill the officers or cause them harm, but instead to scare them, most likely so he could continue to try and make his escape.

Eyewitness testimony as to the direction the weapon was fired during the arrest could help support this defense. If the gun was aimed away from the officer’s, it would tend to show that the defendant did not intend to cause death or great bodily harm, but rather to scare them. A gun aimed away from the officer’s would also disprove the idea that he should have known his actions could result in death or bodily harm (the other elements required to prove first-degree murder), because nobody would expect a gun fired away from a person would cause him harm.

An interesting aspect of this case are in-court statements made by the defendant’s attorney that the defendant is a pastor and was recently honorably discharged from the Army. These actions don’t fit with the idea of a pastor and respected Army veteran. This raises the possibility of several state of mind defenses – perhaps the defendant was suffering from PTSD from his time spent in the Army. It would be worthwhile to have the defendant submit to a psychological evaluation by an independent third-party to determine his mental state, which could possibly negate him having the proper state of mind, or could be used in negotiations with the prosecution to reduce charges.

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