Articles Posted in Search and Seizure

nicolas-barbier-garreau-256433-copy-300x240A police search without a warrant is illegal without consent. It is unlawful for a police officer to enter a person’s home or vehicle without a warrant, without consent, or without an exigent circumstance, such as seeing through a window or hearing domestic violence within the house. Additionally, it is unlawful for a law enforcement agent to coerce a person into consenting to a search, whether that coercion is expressed or implied. Furthermore, according to the Criminal Law Digest, “A defendant’s initial refusal to consent is an important factor in determining whether later consent is voluntary. The fact that defendant signed a written consent form is not dispositive in deciding whether consent was voluntary where circumstances show the consent was obtained through coercion.” This very scenario happened to a Chicago resident.

Fake Call of a Break-in Leads to Illegal Search and Seizure

Chicago police responded to an anonymous tip about a man growing marijuana in his residence. When the officers arrived at the residence, they found no one at home. They called the man with a fake story of a home break in, at which point the then suspect drove home and was confronted by the police officer. The defendant asked if the officer had a search warrant, which he did not. However the officer said that if the defendant did not sign a consent form right then and there, that he would be taken to jail, which would not have been lawful. And, if the defendant signed the form, he would not be arrested on that day. The defendant signed the consent search form, the officer found contraband, and he was arrested. The court  found that the police officer had tricked, intimidated, and threatened the defendant, and that the voluntary consent form was not actually signed voluntarily. The court remanded for a new trial, reversed the conviction, and threw out all evidence from the illegal search.

a-l-117960-copy-300x198Vehicle searches can be lawfully carried out in Chicago with or without your consent. The penal code in Chicago gives the police many powers so that they can stop criminals and prevent crime. The law specifies the situations in which the police can search a car. Normally these situations arise if there is a strong suspicion that the vehicle contains an illicit substance or a criminal. The search might also be done if there is suspicion that the car has been used or is about to be used to commit a crime. Failure to follow procedures can be grounds for a criminal defense.

Failure to stop and submit to a lawful vehicle search can be a crime. If there is a court case, the fact that the defendant refused the search can be used by the judge and jury to assume that they must have been doing something wrong. This is what is known as an “adverse inference” and can turn a case against the defendant. The evidence that has been found during a vehicle search can be used in a court case such as for drug charges.

Understanding the Rules on Consent

aaron-burden-149693-copy-300x225A cell phone is a mechanical device used for personal and business transactions. Because it is widely available, many people use cell phones to communicate. It is one’s property, kept and protected for privacy.

What happens if you are called in for questioning or accused of a crime? Are the police allowed to search your cell phone? If they are, then do they need a warrant to search your personal property?

What is a Warrant?

tim-graf-202490-copy-300x200The 7th circuit appeal court has just considered the case of Joseph Doornbos. This case highlights some of the important things for residents of Chicago to consider when they are stopped and searched. It specifically looks at pat-downs and whether the police have to have reasonable grounds for suspicion before they act.

In this case, the search was done by law enforcement agents that were not in uniform (plain clothes agents). They confronted the suspect and tackled him to the ground as he was leaving a train station. Later on, they charged him with resisting an arrest, but he was acquitted on that charge.

The Issues of the Case

nicolas-barbier-garreau-256433-copy-300x240In the legal world, few matters are as controversial as those that allow confiscation and forfeiture by the police. It is something that has dramatically polarized the two sides. It is rare that you will find someone who is neither truly “for” nor truly “against” these laws. Those who are in favor of the police departments being legally allowed to confiscate goods and money hold that law enforcement is taking away the proceeds of criminal enterprises. Staunch advocates, however, state that the police are nothing but thieves with badges who are taking the property of citizens without trials or due process. This issue is a complex one, to say the least.

Policing for Profit

To understand the law in Chicago, one must first understand what civil forfeiture and confiscation means and how it would apply to the person being affected by it. The standard rule of law used in Chicago dictates that police may confiscate property, including money, that meets certain criteria. These criteria are simple and, to some, are far too broad: Law enforcement officers have to believe that the property was used in a crime, is intended to be used in a crime, or has been obtained in connection with a crime. As you can see, this is a straightforward, if broad, list.

tim-graf-202490-copy-300x200Few laws have created the angst that is experienced in the stop-and-search era. The basic premise is that if you come from an ethnic minority, then the chances are that you will be more likely to be stripped and searched than a member of the mainstream community, which is primarily white Caucasian in this context. It is a violation of civil liberties. There are numerous reports of these powers being abused.

The law enforcement agencies may hide behind the notion that they are merely engaging in a consensual process, but consensus can never be achieved if one of the parties to the cause is so much more powerful and influential. The power of arrest and charge is particularly compelling to any would-be suspect when he or she is deciding whether or not to resist the arrest. The law enforcement agencies have attempted to report this as a practical matter of people from ethnic minorities committing more crimes more often than their mainstream white Caucasian counterparts. Other social researchers disagree with this premise because it does not account for the impact of the systemic deprivations with which these ethnic minorities have to contend.

Working Towards a Sustainable Model

Pipes_01-1-300x200Broadly speaking, the law in Chicago gives the police power to search and seize items if and when they suspect that those items are relevant to the commission or investigation of a crime. However, some law enforcement agencies have abused this power resulting in the interventions of senior courts to determine what constitutes a legal search and seizure in Chicago. Defense attorneys may find themselves in a position where they are effectively prosecuting the law enforcement agencies for breaking the law. Typically, these complexities arise in the midst drug-related cases.

The Interplay Between Constitutional and Criminal Law

The Fourth Amendment has guaranteed Americans the right to be free from unreasonable search and seizure. However, that tends to focus more on the federal government overreach. Of course, there are those that push the law to its very limit by insisting that they are able to occupy public property without intervention from the state. That is why the law always includes a caveat of reasonableness which is open to interpretation and definition by the courts. The Fourth Amendment does not cover seizure by private individuals and therefore anyone that engages in this type of activity on their own authority is bound to encounter serious legal problems.

file591347375992If a police officer shows up at your door and demand you open it, you may feel as if you have no option but to allow the officer into your home. Many people are intimidated by the authority of the police or frightened at the idea of disagreeing with the police. Whatever the reason, most people are either unaware of their constitutional rights when a police officer is at the door or they forget to assert them. While there are some exceptions to the rule, in general, it is illegal for the police to enter your home without a search warrant.

What are Your Rights?

The Fourth Amendment to the United States Constitution protects you from unlawful searches and seizures. This right is extended to you on the state level by operation through the Fourteenth Amendment. This means that if the police do not have a search warrant and you do not consent to allow them into your home when asked, then they are breaking the law if they enter.

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.

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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.

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You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.

Thanks to the proliferation of television crime shows, you likely know what the above quotation is – the Miranda warnings, which every Chicago police officer is required to read prior to the arrest and interrogation of every criminal defendant. These rights are named after Miranda v. Arizona, the United States Supreme Court case that created the warnings, and failure to read a Chicago criminal defendant those rights, or questioning him after he has invoked his right to silence or requested a criminal defense attorney, may result in his statements being held inadmissible in a Chicago criminal court.

What you may not know is that there are circumstances where the Chicago police can question you without first reading the Miranda warnings. There are also circumstances where the police may question you even though they have read the rights. Statements you make in either of these situations may be admissible in court.

Illinois Police and Miranda Warnings Require Custody

 

Chicago police are required to read a criminal suspect the Miranda warnings when he is in custody. “In custody” means when the suspect is deprived of his freedom of movement in any significant way, or when the police officer’s actions indicate that the suspect is not free to leave.

How does this work in the real world?

Obviously, if you are placed in handcuffs on the street corner, or brought into a police interrogation room, you are in police custody and should be given the Miranda warnings.

But imagine you are walking down the street and a police officer stops you. He asks what you were doing standing on a deserted street corner, alone, for 10 minutes. You say you were waiting for a friend who never showed up. The officer thanks you for your time and tells you to have a nice day.

No problem there. No arrest was made, you made no statement to the officer, and you were free to walk away. Now what if, when the officer asks what you were doing, you panic and tell him that you were there to meet your dealer, who was going to give you drugs to sell for the week. These statements would be entirely admissible in court, even though you did not receive the Miranda warnings. There was no custodial situation, and no interrogation. The police officer simply asked you a question, and you unfortunately gave him a very guilty answer.

Now imagine that after the officer tells you to have a nice day, he asks if you have noticed any suspicious activity in the area. Have you seen any drug deals? Were you there trying to buy or sell drugs? Depending on the officer’s demeanor during these questions – whether he had his hand placed on a weapon or was in another threatening pose, how close he was to you, or whether his questions seemed accusatory – this could become a custodial situation. But chances are, without anything more, the court would not consider this a custodial situation, and any statements made to the officer would be admissible.

Now let’s say after you turn to walk away, the officer asks that you come sit in his squad car so he can ask you some questions. You politely decline, indicating that you have other things to do. The officer, however, insists. At this point, most people would no longer feel free to leave. This would be a custodial situation, even though no arrest has been made, and the police officer would be required to read you the Miranda warnings.

In any custodial situation, the police must read you your Miranda warnings. They are not required to read you these rights any time they approach you. The Miranda warnings are only required where your freedom of movement has been restricted to the point that a reasonable person would no longer feel free to leave. Any violation of the Miranda ruling will cause any statements made to the police to be kicked out of court.

Chicago Criminal Suspect Must Affirmatively Invoke Miranda Rights

Even if the police follow proper procedure and read you the Miranda warnings, they are still free to question you, unless you affirmatively invoke those rights.

What does that mean? It means that you must say, “I wish to remain silent”. Sitting there in silence – while something every arrestee should do – does not invoke the right to remain silent.

Failure to affirmatively invoke the right to remain silent means the police will continue to question you, hoping to wear you down and get you to confess. Once you say, “I wish to remain silent,” the police must stop all questioning. Invoking this right is so strong, the police may not even come back a few hours later and ask if you have changed your mind.  Continue reading