Articles Posted in Search and Seizure

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.

4754231502_940e0fe7f1

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.

Continue reading

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

The United States Supreme Court strengthened an individual’s right to be free from unlawful search and seizures last week when it ruled that, barring certain limited exceptions, law enforcement may not search a criminal suspect’s cell phone without a warrant.

Riley v. California Bans Warrantless Cell Phone Searches

Riley v. California involved two defendants, David Riley and Burma Wurie.

Riley’s car was impounded in California after he was pulled over for having expired registration tags and driving with a suspended license. His car was impounded, and a routine inventory search uncovered concealed and loaded firearms. Riley was then arrested, and an officer seized and searched his cell phone, which showed evidence of gang-related activity. The evidence found on the phone resulted in Riley being further charged with attempted murder, assault with a semi-automatic weapon and firing at an occupied vehicle.

In the second case, Wurie was arrested after police observed him making a drug sale from his car. At the police station, officers seized his phone and, after noticing several calls coming in to the phone from a caller identified as “my house,” opened and searched the phone until they determined the number associated with “my house.” They traced the number to an address and obtained a search warrant, where they uncovered drugs and firearms.

Both Riley and Wurie sought to suppress the evidence obtained as a result of law enforcement’s search of their cell phones, arguing that it violated their protections against unlawful search and seizure.

Law enforcement may stop and frisk an individual if they believe the person was, or is about to, commit a crime, and the frisk may only be to search for weapons to protect the officer’s safety or to prevent evidence from being destroyed. Known as a search incident to an arrest, the Court pointed out that cell phones do not fall within this exception.

In prior cases, the Court had ruled that searching a crumpled cigarette pack found in a suspect’s pocket was reasonable. However, the Court refused to extend that standard to cell phones, which the court noted contain massive quantities of private data, and a search of an arrestee’s phone is much more invasive than looking in a cigarette pack taken from his pocket.

Furthermore, the court noted that there is no danger of an officer’s being harmed from a cell phone (while the cigarette pack could have contained unknown weapons). Without the risk of harm, a search of the cell phone – even if done following a lawful search and seizure – is not allowed without a warrant.

Chicago Search and Seizure of Cell Phones

How does the Supreme Court’s ruling affect residents of Chicago and the rest of Illinois? United States Supreme Court decisions that deal with constitutional issues apply to every state. Therefore, the Court’s ruling prevents Chicago area law enforcement from lawfully seizing and searching your cell phone or other similar digital device without first obtaining a warrant.

Keep in mind, however, that the Court’s ruling does not prevent law enforcement officers from asking an arrestee if they can search his phone, or from searching it if they have consent. So if a Chicago police officer stops you and asks to see your cell phone, whether you have been arrested or not, your answer should always be no. If you consent, anything law enforcement finds on your phone can be used against you in court.

If an officer searches your phone without a warrant, it is important that you contact a criminal defense attorney with experience handling search and seizure cases. It may be possible to have the charges brought against you dismissed if any evidence is in any way related to a warrantless search of your cell phone.  Continue reading

Once again Chicago police violated a citizen’s Fourth Amendment right against unlawful search and seizure. On April 30, the Illinois Appellate Court issued a ruling in People v. Sims re-affirming that police must have a reasonable suspicion of criminal activity before they can stop and search an individual.

People v. Sims

In 2010 Henry Sims was stopped by a Chicago police officer after the officer witnessed Sims stuff something down the crotch of his pants and walk away. The officer knew that Sims had a prior arrest for unlawful use of a weapon. He proceeded to stop Sims because his “movement was consistent with someone that could be armed.” The officer immediately palmed Sims’ crotch where he felt not a weapon, but a bag that he recognized as containing narcotics. The bag contained 25 smaller bags, which testing revealed to be cocaine.  supreme-court-1-657696-m

At trial Sims moved to suppress the cocaine, arguing that the officer did not have reasonable suspicion that he was engaged in criminal activity, and that the stop there did not meet the requirements of a Terry stop. The court denied Sims’ motion; he was convicted of possession of a controlled substance with intent to deliver, and was sentenced to six years in prison.

The Illinois Appellate Court overruled the trial court’s decision, finding that the officer’s actions did not meet the two-part test required in determining whether a Terry stop is valid. Sims’ simple act of putting his hand down his pants did not give rise to a reasonable suspicion of criminal activity that would justify the stop – and a “hunch” by the officer that Sims had a weapon is insufficient to stop him. Since the stop itself was unreasonable, the search (or frisk) was also unreasonable, as it was not justified by a reasonable belief that the individual was armed and dangerous. Because the only evidence of Sims’ crime was the direct result of the illegal stop and search, the court overturned both Sims’ conviction and imprisonment.

People v. Sims is another in a long line of cases that support the individual’s right to not be harassed by police. As the officer even stated in his trial testimony, it is not illegal for a person to stuff his hands down his pants. He could have been cold, he could have had an itch, or he could have been readjusting, as males do from time to time. As the court noted, it is not the defendant’s responsibility to provide innocent explanations for his behavior; rather, the burden lies with the prosecution to prove that his actions raised a reasonable suspicion of criminal activity. But these innocent explanations are ones that a skilled defense attorney would raise in court during a motion to suppress, or at trial to raise reasonable doubt.

The recent passage of Illinois’ concealed carry gun law will make it even more difficult for an officer who has a reasonable suspicion that an individual has a gun, to further prove that he had reasonable suspicion reasonable suspicion that a crime had been, was, or was about to be, committed, since carrying a concealed weapon is now legal. The fact that an individual is seen stuffing a weapon down his pants or adjusting what appears to be a weapon in his jacket pocket is insufficient to make a stop; there is a presumption against the individual engaging in criminal activity, and since carrying a concealed weapon is legal with a permit, the presumption would be that, absent any other reasonably suspicious activity, the individual has a permit and is in legal possession of the concealed weapon. Continue reading

The Fourth Amendment of the United States Constitution protects citizens from unlawful searches and seizures. Yet it is the most frequently violated civil right, and on March 20th the Illinois Supreme Court ruled that yet another police officer violated that right by conducting an illegal search and seizure. If a police officer violated your Fourth Amendment rights, it may be possible to get evidence tossed out, or the charges completely dismissed. That is why following an arrest you should immediately meet with an experienced Chicago search and seizure attorney who can help determine whether the police exceeded their authority during the arrest.

Illinois Stop, Search and Seizure Law

Illinois law permits a police officer to stop any person he reasonably believes is about to commit, is in the process of committing, or has committed, a crime of any nature. You are not required to answer any questions the police may ask, nor are you required to show identification. The officer may also perform a limited search of the person for evidence of the suspected crime. These are known as Terry stops.

The Terry stop rules apply to vehicles as well, and the police are usually permitted to ask to see the driver’s license. But not every traffic stop allows the police to request the driver’s identification. And in People v. Cummings, the Illinois Supreme Court laid out another example of when requesting the driver’s identification becomes an unlawful search and seizure.

Search and Seizure During Illinois Traffic Stop

In People v. Cummings, a police officer driving behind Mr. Cummings suspected that the vehicle’s registration had expired. A quick computer check showed that the registration was valid. However, it also showed that the car’s registered owner – a female – had an outstanding warrant. The officer pulled the vehicle over and, upon approach, immediately realized that Mr. Cummings was male. The officer asked for Mr. Cummings’ identification anyway, at which point he discovered that Mr. Cummings had a suspended license. Cummings was later charged with a Class 4 felony.

The Illinois Supreme Court ruled that the officer violated Mr. Cumming’s right against unlawful search and seizure. Pulling the car over was valid, since the computer check showed that the car’s registered owner had an outstanding warrant. However, the search also showed that the registered owner was a female. Once the police officer realized that the car’s driver was a male, the stop should have ended immediately.

By asking Mr. Cummings for his identification, when he had no reasonable suspicion to believe that Mr. Cummings had committed, or was in the process of committing, a crime, the officer violated Mr. Cummings’ Fourth Amendment right to be free from an unreasonable search and seizure. The court stated that “unless a request for identification is related to the reason for the stop, it impermissibly extends the stop and violates the Constitution.”

In this case, the purpose of the stop was to arrest the car’s registered owner on the outstanding warrant. Requesting Mr. Cummings’ identification, when he clearly was not the car’s registered owner, extended the stop beyond what the Fourth Amendment allows. If the driver had been female, requesting identification would have been acceptable – the officer did not know what the car’s registered owner looked like, and thus would have needed identification to verify her identity.

Chicago Search and Seizure Attorney

The ruling in People v. Cummings is specific to the facts of the case, which makes it very important that you contact an experienced criminal defense attorney if you were arrested following any type of police stop. If the officer’s actions exceeded their Fourth Amendment authority, it is possible to have the evidence tossed out, which may result in the charges against you being dropped. Continue reading

It’s a hot Chicago night, and you and some friends are outside, laughing and joking in an attempt to beat the summer heat. Two police officers approach and ask what’s going on. Not wanting trouble, you and your buddies turn and walk away. The officer repeats his question, a bit louder now, and the officers quickens their pace. Scared, you and your friends begin to run. The cops quickly follow, and when you’re detained they frisk everybody and find marijuana in your back pocket. Suddenly, what started as a fun night with friends ends with you in the back of a police cruiser, charged with possession of marijuana. chicago-police-176193-m

Unfortunately these types of stop and frisks are all too common, especially in Chicago’s high crime areas. If you’re arrested following a stop and frisk, you need an experienced criminal defense attorney to closely examine your case to determine whether the police’s actions were lawful.

Police Right to Stop and Frisk in Chicago

Police officers have the right to stop and question any person they encounter, provided they have a reasonable suspicion that the individual was engaged in criminal activity. This means the officer must be able to clearly explain why he believed criminal activity was happening; he cannot simply make a stop based on a hunch or intuition. These are known as Terry stops, after the United States Supreme Court case that authorized these investigatory stops.

The officer may perform a frisk (or protective pat down) only if he has reasonable grounds to believe the individual is armed. Even then, the pat down can only be of those areas on the body where a weapon could be hidden.

Just hanging out on the street corner is not generally enough to authorize the police to stop and question you. But in 2000 the U.S. Supreme Court ruled in Illinois v. Wardlow that the police can consider the individual’s behavior in context of the location when deciding whether there is reasonable suspicion to make a Terry stop. Suddenly, hanging out on the street in a known drug area became suspicious – bad news for the many law-abiding Chicago residents living in such areas.

Defending Against Chicago Stop and Frisk Arrest

There are many considerations that come in to play if you are arrested following a stop and frisk. Were you doing anything that could give rise to a reasonable suspicion that you were engaged in criminal activity? Were you in an area known for high criminal activity? Were you acting in a manner that made it appear you were engaged in criminal activity – pacing back and forth, looking at your watch repeatedly, or staying in the same location for a lengthy period of time?

Your behavior on the night of the arrest, as well as the location where it occurred, must be examined closely to determine if either of them could have given the police reasonable suspicion that you were committing – or about to commit – a crime. If the police lacked reasonable suspicion to stop you, the criminal case can be dismissed.

If the stop did rise to the level of reasonable suspicion (and even if it did not), the resulting frisk must also be closely examined to determine whether it exceeded the police’s authority. The police may only frisk on top of clothing, and they cannot pull out or manipulate anything they feel during the pat down unless it is reasonably clear from feel that it was a weapon or drugs. It would be hard for police to determine through a pat down that the small lump they felt in your pants pocket was marijuana. If we can show that the police’s discovery of evidence during a pat down exceeded their authority, the criminal case can be dismissed. Continue reading