Arrests

April 8, 2015

Cook County Home Invasion

by Law Offices of David L. Freidberg, P.C.

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.

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.

March 18, 2015

Chicago Burglary Suspect Nabbed Due to Stolen Lottery Tickets

by Law Offices of David L. Freidberg, P.C.

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.

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.

March 11, 2015

Attempted Murder, Retail Theft Charges against Chicago Man Who Shot at Police

by Law Offices of David L. Freidberg, P.C.

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.

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.

March 6, 2015

Chicago Police Piloting Use of Body Cameras

by Law Offices of David L. Freidberg, P.C.

In response to officer killings of unarmed men around the country last summer, the Chicago Police Department equipped 30 police officers with body cameras late January, as part of a pilot program to provide evidence (or lack thereof) of police misconduct, such as unlawful search and seizures or excessive force, in arrests and interactions with the public. The cameras, which will be clipped to the officer’s uniform, headgear or glasses, will be piloted for 60 days before a decision is made whether to expand the program.

Chicago Police Officer Misconduct

One of the greatest areas of office misconduct is the violation of a suspect’s Fourth Amendment right against unlawful search and seizures. Whether it is an overreach of the Terry stop, which allows the police to approach anybody on the street they reasonably believe is about to commit a crime; an unlawful search of a suspect’s car at a routine traffic stop, or; failure to read a suspect his Miranda rights, police officer misconduct routinely occurs. Unchecked, it can cause mistrust of the police and the imprisonment of innocent defendants.

Police brutality due to excessive force or even racial profiling is another area of misconduct that has been in the news quite a bit the past few months, with the deaths of Michael Brown and Eric Garner at the hands of police officers.

Police body cameras can help prevent excessive use of force and unlawful search and seizures by making the police accountable for their actions. For the majority of Chicago police officers, use of the body cameras will not change the way they do their duties because they are honest, upstanding members of the force. In these cases, the body cameras can only be a benefit to them, as it will prevent wrongful accusations of misconduct.

But for those handful of officers who routinely violate the civil and criminal rights of Chicago citizens, body cameras should prove to be an extremely useful tool in cutting down on this behavior. For some officers, knowing that the body cameras provide a record of their actions will cause them to stop and think twice before using force where it’s not necessary or searching a victim without probable cause.

For those who are not deterred by the presence of cameras, the images they capture will ensure that the innocent will not be sent to prison. And it will provide that all important evidence that could result in the indictment and conviction of officers who overreach their authority, ensuring that the real criminals are behind bars, and giving victims of police misconduct the evidence they need to file civil rights lawsuits.

February 13, 2015

Chicago Man Charged with Arson on Red Line

by Law Offices of David L. Freidberg, P.C.

A Chicago man was charged with arson last week for allegedly throwing a lit matchbook into a recycling bin in an El station before boarding his red line train.

Chicago Arson Defense

Under Illinois law a person commits arson if he knowingly damages another person’s personal property, if that property is valued at $150 or more.

Arson is a specific intent crime, which means that the prosecution must prove that the defendant knew that his actions would cause a fire, or intended to do so. So “knowingly” is an important element of every arson charge. Without it, the prosecution has no case and the charges must be dropped or a not guilty verdict handed down in court.

When building a defense in an arson case, it is important to consider not only the defendant’s actions, but any other factors outside of the defendant’s knowledge that could have caused the property to burn. Evidence that would go against an arson claim include:

Whether the defendant knew the matchbook was still lit when he tossed it;
Whether he purposely tossed it, or whether it was tossed as a reflex because the flame touched the defendant’s hand;
Whether weather or other conditions inside the El station could have caused a just extinguished match to reignite;
Whether there was any other evidence of fire or smoldering in the recycling bin that ignited coincidentally with the defendant’s tossing the matchbook;
Whether the matchbook in question belonged to, and was used by, the defendant – fingerprint analysis, if the matchbook was not destroyed in the fire, could be used to prove ownership;
Whether the defendant smoked, which could cast doubt on why he’d have a matchbook;
Whether defendant actually tossed the matchbook into the recycling bin, or whether he tossed it on the ground and a passerby innocently (or purposely) tossed it into the bin, or;
Whether any flammable material had been tossed into the recycling bin that would have caused the flames and damage from the fire to be more extensive than it would have been otherwise.

A negative to answer to any of these questions would tend to cast doubt on the idea that the defendant knowingly set out to cause the fire.

A second key element to arson is whether the value of the property damaged is $150 or more. The recycling bin itself was full of trash, and although the city may then sell the recycled material to scrap yards, this is not true personal property. And even if the court were to rule that it counts, depending on the extent of the damage it may be impossible to determine how much the city could have sold the material for, since it is now burned rubbish.

Depending on the type of recycling bin, there may be minimal damage. A steel or metal bin may have gotten scorched but could likely still be used, so although damaged, there wouldn’t be the need to replace or repair it. If it was a plastic bin, the defense would need to determine the cost of the bin.

Even if it could be proven that the property damage exceeded $150, the jury could be swayed into delivering a not guilty verdict because the property had no personal value to anybody – it was simply trash and a trash bin, not a vehicle or prized family possession. Continue reading

February 6, 2015

Police Dogs and Chicago Drug Cases: Unreasonable Search and Seizure?

by Law Offices of David L. Freidberg, P.C.

The Illinois State Police announced the arrival of a new member to its K-9 unit recently, a dog trained in narcotics detection to aid in drug crimes investigations. I have discussed extensively on this blog the 4th Amendment right of all people to be free from unreasonable searches and seizures. But do those protections extend to police dogs?

Illinois Police Dogs and Search & Seizure

In 2005 the United States Supreme Court, in a decision that overruled the Illinois Supreme Court, ruled that the 4th Amendment prohibition against unreasonable search and seizures does not prohibit a trained police dog from being brought to the scene of a routine traffic stop to detect for illegal drugs.

In Illinois v. Caballes, the defendant was pulled over for a routine traffic stop. A K-9 unit responded to the officer’s radio regarding the stop. While the defendant was seated in the arresting officer’s vehicle, the dog was walked around the defendant’s vehicle, when it alerted its handler to the presence of drugs. A search of the defendant’s vehicle uncovered marijuana in the trunk.

The Illinois Supreme Court reversed the conviction, ruling that there had not been “specific and articulable facts” of any crime to justify the canine search. With the search deemed unconstitutional, the evidence had to be tossed out and there was no basis to support the conviction.

But the U.S. Supreme Court reinstated the conviction. Police dogs, the court said, are trained only to detect illegal contraband, which is not a legitimate privacy interest. If no drugs are present, then the privacy of the individual being sniff-searched has not been violated, because the dog cannot detect or convey any private information. Therefore, having a police dog sniff an area, even if there is no probable cause to assume the person being searched is in possession of drugs, does not constitute an unreasonable search and seizure. Probable cause to perform the subsequent search arises when the dog alerts to the presence of illegal contraband.

Because individuals do not have a privacy interest that can be violated by a sniff-search, can there ever be a case where a search by a K-9 unit is unreasonable?

In Caballes, the dog sniffed outside the defendant’s vehicle. Police would be unable to have the dog sniff inside the vehicle, without probable cause to believe that there was drugs inside. Likewise, a police dog could search outside a residence, but would be unable to search inside unless it alerted to drugs inside the home, or if the police had a search warrant for the home.

The search could also be unreasonable, and any evidence uncovered from it deemed inadmissible, if the dog’s handler did any of the following:

Falsely claimed that the dog alerted to the presence of drugs and subsequently conducted a search;
Encouraged the dog to alert to the presence of drugs, such as repeatedly pointing the dog to a location he had already searched and dismissed;
Signaled the dog to alert in any manner, or;
Searched a wider area than what the dog alerted to.

In any of these instances, the police officer’s act of forcing the dog to alert, or falsifying an alert, for the sole purpose of creating probable cause to support a search, would result in the search being deemed unreasonable. Continue reading

February 4, 2015

New Illinois Police Lineup Procedures Seek to Curb False Identification

by Law Offices of David L. Freidberg, P.C.

Eyewitness identification is heavily relied upon by juries and judges when deciding on a criminal defendant’s guilt or innocence – yet it is the leading cause of wrongful conviction.

A new Illinois law seeks to cut down on the misidentification of criminal suspects in police lineups by eliminating the potential for officer bias.

New Procedures for Chicago Police Lineups

Chicago police departments currently use “standard lineup” procedures, which are inherently biased – the lineup administrator (the person who organizes the lineup) knows the identity of the suspect. This increases the chances that he may, whether on accident or on purpose, give clues to the victim regarding which suspect she should “identify.” The bias is present in both live and photographic lineups.

The new law eliminates this bias by requiring that all lineups be conducted using one of three methods:

Independent administration. In this procedure, the lineup administrator is not a participant in the investigation and has no knowledge of who in the lineup is the suspected perpetrator. This eliminates the possibility that he can influence the eyewitness into choosing the police suspect.

Automated administration. In this procedure, a computer or other device automatically displays a photographic lineup in a manner that prevents the lineup administrator from seeing which photographs the eyewitness has viewed until the lineup is completed.

Random administration. In this procedure, photographs are placed in file folders that are then randomly numbered, shuffled and presented to the eyewitness. As in the automated administration, the lineup administrator has no knowledge of which photographs the eyewitness has viewed until the lineup is completed.

Police may also utilize any other method that guarantees that the lineup administrator has no knowledge either of the suspect or of which photographs the eyewitness is viewing until the lineup is completed.

In addition, lineups shall be composed to ensure that the suspect blends in with the “fillers”, those non-suspects who are included in the lineup. This means that the fillers should be substantially similar to the appearance of the suspect as described the eyewitness, such as race, height, facial hair, tattoos or other identifying characteristics.

If a police lineup does not comply with the new procedures, or if it can be otherwise proven that the lineup administrator improperly influence the eyewitness’ identification, that identification may be ruled inadmissible in court, or the jury may be told that the identification is suspect because the police failed to follow proper procedures.

The change in proper lineup procedures is very much needed and goes a long way toward protecting the rights of criminal suspects. The inherent bias in standard lineup procedures leads to the misidentification of suspects, some of whom are later wrongfully convicted or plead guilty to crimes they did not commit. Others suffer the stress, sometimes while in jail, before further police investigation determines that the evidence does not support the suspect’s having committed the crime. Continue reading

January 23, 2015

Ford Heights, Illinois Man Charged with Threatening Police Officers

by Law Offices of David L. Freidberg, P.C.

A Cook County man was arrested last week and charged with felony threats to a police officer, assault and various weapons charges, after a person reported a Facebook post in which he threatened to kill police officers.

Threat to Illinois Police Officer

Under Illinois law a person can be convicted of threatening to harm a police officer, even if no actual attempt to inflict harm was made. However, “the threat must contain specific facts indicative of a unique threat. . .and not a generalized threat of harm.”

In a case such as this, it is important to closely examine the threat that was made to determine if it was specific or general. A specific threat would have to include details that showed the individual making the alleged threat had, at the very least, a loose plan of when, where and how the harm was going to be committed. A general threat would be more along the lines of puffery or letting off steam.

For example, a Facebook post that said, “Death to the police!” or “Those pigs had better hope they never run along my path!” is a general threat. The threat is not aimed at any specific individual and doesn’t give any indication of where, when or how the threat would be carried out. But if the threat said, “Some cops are going to die tonight!” and was accompanied by a photo of the person armed with guns or other weapons, that may be specific enough to indicate an actual threat – the time is specific (tonight) and the photos shows the person has the means to carry out his threat.

Careful examination of the threat is especially important at this particular moment in time. Police across the nation are on high alert after the murders of two New York City police officers, which was done in apparent retaliation for the recent police killings of unarmed black men in Ferguson, Missouri and New York City. Knee-jerk reactions could cause police, and the judge who signed the arrest and/or search warrant, to overreact. But when it comes to a person’s constitutional right to be free from unlawful search and seizure, the adage “better safe than sorry” does not apply.

In addition, it is important to separate post-arrest statements from the initial threat. In this case, statements the defendant allegedly made post-arrest make his threat seem more specific. But post-arrest statements in a threat case cannot be used to bolster the arrest. The threats needed to be specific at the time the arrest was made.

Cook County Search and Seizure

Any arrest or search of a suspect or his home raises immediate concerns regarding whether the police had the appropriate authority to initiate the arrest or search, and whether the arrest and/or search warrant was lawfully obtained.

In order to arrest a person in his home, the police must have an arrest warrant. Issuance of an arrest warrant is based on law enforcement’s reasonable belief that the individual named in the warrant has committed a crime. In order to search a suspect’s home, the police must have a search warrant, which requires a showing of probable cause. The arrest warrant alone is insufficient to conduct a search and obtain evidence, with the exception of the following:

Search incident to arrest: Law enforcement may search any area within the arrestee’s immediate control for weapons or evidence of the crime;

Plain view: Law enforcement may collect any evidence that is within view of the spot where the arrest occurred. For example, if the arrest occurred in the kitchen, they could confiscate any evidence of crime they see sitting in plain view on the dining room table. They could not walk down the hallway and take evidence they see sitting on a bedroom nightstand.

Safety: Police may do a protective sweep of the home if they believe there may be others present, or if the nature of the underlying crime warranted it – for example, it was suspected the arrestee was making bombs, so a check was done for explosives that could detonate and harm others.

A careful review of the arrest and search warrant in this case is necessary to determine whether law enforcement had the appropriate warrants and, if not, whether the search fell within any of the three exceptions. If the police did have the appropriate warrant, it must be determined that they probable cause to obtain the warrants. If the defendant’s Facebook threats were too general to qualify as threats under the law, then the warrants would be invalid, all evidence uncovered in the search would be inadmissible, and the charges would have to be dismissed. Continue reading

December 3, 2014

Chicago Police Storm Home, Arrest Man for Walking Down Street

by Law Offices of David L. Freidberg, P.C.

A Southside Chicago man claims that Chicago police stormed his home, placed him in a chokehold and arrested him for doing nothing more than walking down the street. Police arrested the man on misdemeanor counts of battery, resisting arrest, and possession of a deadly weapon. The man’s niece captured the incident on her iPad.

Unlawful Chicago Search and Seizures

I have discussed extensively on this blog before about the right of Chicago residents to be free from unlawful search and seizures, or stop and frisk. While police have the right to address anybody on the street – even asking a person to “come here” – unless they have a reasonable belief that the individual has committed, is committing, or is about to commit a crime, the person approached has the absolute right to completely ignore the police.

If this man’s story is true – that he did nothing more than ignore the police’s request that he “come here” after they pulled up alongside him – then the police grossly exceeded their authority. Ignoring a police inquiry does not give them the authority to conduct a stop and frisk. It certainly does not give them the right to follow the person to his home, storm his residence, and then charge him with resisting arrest. If the initial stop was unlawful which, if the facts alleged here are true, it was, then any search and arrest that followed were illegal, and all charges against the defendant must be dismissed.

Racial Profiling by Chicago Police

It is an unfortunate fact that racial profiling exists. Studies show that Chicago police officers repeatedly engage in racial profiling, particularly when it comes to traffic stops. The American Civil Liberties Union’s review of traffic stop data collected by the Illinois Department of Transportation shows that Chicago police officers are four times more likely to ask to search vehicles driven by African-American and Hispanic drivers than those driven by white motorists, despite the fact that illegal drugs or guns are found more frequently in the vehicles of white motorists.

Numerous anecdotal reports of racial profiling exist as well. Even the University of Chicago police department, a private force that has the full power of local police for the area it serves, has been accused of engaging in racial profiling.

Stopping an African-American, Hispanic or other ethnic minority based on a reasonable suspicion that he is engaged in illegal activity does not constitute racial profiling. Stopping an African-American, Hispanic or other ethnic minority simply because they are black and “all black men are criminals”, which appears to be the case in this incident, is racial profiling. A stop that is based solely on the color of one’s skin, without any other evidence to support a reasonable suspicion of criminal activity, is illegal, and any search and arrest that follows must be dismissed.

November 26, 2014

Three Chicago Men Charged with Murder in Old Town Shooting

by Law Offices of David L. Freidberg, P.C.

Three Chicago men were charged with murder for the shooting death of a Chicago resident recently. The men are accused of pulling up alongside the victim’s car and opening fire; the victim later died of a gunshot wound to his arm after trying to flee the scene.

Co-Defendants and the Felony Murder Rule

In August I discussed the case of a young Chicago boy who was charged with the murder of his friend, even though the friend was shot and killed by an off-duty Chicago police officer. The officer killed the victim during an attempted armed robbery. The defendant was charged with murder under what is known as the felony murder rule, which allows all persons involved in the commission of a felony to be charged with first-degree murder for any deaths that occur during the commission of the crime.

That same rule may apply to the defendants in this case. At present, they are each being held on charges of murder, though authorities have not yet determined (or have not yet made public) who the shooter was. Eyewitness statements indicate that a passenger was the shooter.

Whether or not the rule would apply in this case depends on if the defendants intended to commit a crime when the shooting occurred. For example, if they were driving around in the middle of the night looking for a person to rob, then they could all be charged with first-degree murder since the victim was killed while they attempted to carry out the robbery.

If, however, they were driving around aimlessly just to pass the time, as teenagers often do, and the driver and the second passenger had no idea that the shooter intended to fire at the victim when they stopped the car, then they have an argument for having the murder charges dismissed or reduced.

Weapons were found in the vehicle when the boys were arrested, but carrying weapons does not prove intent to commit a crime. They could be charged with fleeing the scene, obstruction of justice, or other crimes, but if there is no evidence that they intended to commit a felony, or that they knew the shooter planned to commit a felony, then they cannot be charged with murder under the felony murder rule.

Plea Bargain in Chicago Cases Involving Multiple Defendants

Cases involving multiple defendants offer an increased opportunity to strike a plea deal with the prosecution, especially in murder cases where one person was ultimately responsible for the victim’s death. The co-defendants may be able to offer testimony showing that the shooter had a prior beef with the victim, and that the murder was premeditated. In exchange for such testimony, the prosecution may be willing to reduce the first-degree murder charges against the two co-defendants not involved in the shooting, because the testimony raises the probability of winning a first-degree murder conviction against the shooter.

In these cases, having a criminal defense attorney who has established good working relationships with Chicago prosecutors is vital.