Search and Seizure

December 11, 2015

When are the Police Allowed to Search Your Home?

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

If 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.

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.

August 6, 2014

Chicago Criminal Defendants and Miranda Warnings

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

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

July 18, 2014

United States Supreme Court Bans Cell Phone Searches

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

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

May 4, 2014

Illinois Appellate Court Overturns Conviction Due to Unlawful Search and Seizure

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

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.

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

April 4, 2014

Illinois Police Conduct Unlawful Search and Seizure in Traffic Stop

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

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

March 22, 2014

Chicago Criminal Defense of Stop and Frisk

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

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.

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

August 27, 2013

Chicago Drug Crimes – Should Chicago Implement the “Stop, Question and Frisk” NYPD Policy?

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

Have you ever been stopped by the Chicago Police for no apparent reason and are now facing Chicago drug charges? You can most likely relate to the following recent story out of New York City.

Following a $14,000 March, 2013 settlement to a Brooklyn man who claimed he was illegally stopped and frisked pursuant to the controversial “stop, question and frisk” policy in effect by New York City—a federal judge ruled on August 12^th that the policy was both unconstitutional as well as racially discriminatory. As noted in the decision handed down by Judge Shira A. Scheindlin, (Floyd v. City of New York), the complaints that have been received by several Chicago drug defendants regarding the policy have merit as well. Specifically, a year before the lawsuit and Judge Scheindlin’s decision, the New York City Council introduced legislation known as the Community Safety Act. This legislation first established an independent inspector general to review current police policy and practice regarding the stop and frisk issue. Secondly, the Act enforced a current anti-profiling law and expanded the categories of those protected from such profiling. This has everything to do with violations of the 4th Amendment of the United States Constitution regarding search and seizure.

New York City Council and Mayor Bloomberg Carry on the Battle

Following the above-mentioned lawsuit, the City Council voted on the Community Safety Act in June. While the Act passed through the Council nearly unanimously, Mayor Bloomberg vetoed the legislation in July, stating “This is a fight to defend your life and your kids’ lives…” Bloomberg has been vocal in stating that any extra departmental oversight prevents officers from effectively doing their jobs and places New York citizens in harm’s way. Many citizens of New York would disagree with the Mayor’s assessment. Keeshan Harley, an 18-year old young black man from Brooklyn has been stopped by the NYPD almost 150 times “without proper cause or fair reasoning,” under the NYPD stop and frisk policy.

Stop and Frisk Comes to a Halt

Apparently, many New Yorkers side with the City Council as on August 22^nd, the era of unchecked stop-and-frisks by the NYPD ended when Bloomberg’s veto was overridden. Bloomberg vows to keep fighting the issue, claiming the Act a “dangerous piece of legislation.” Bloomberg’s opinion may have merit as well—those bent on committing crimes in New York City seem to have gotten the “memo” loud and clear following the Council’s decision. One police source claimed he would start carrying his gun again and that once the number of stops decreased the number of crimes would skyrocket. With police officers under threat of a lawsuit any time a suspect could potentially claim profiling, it is believed that good officers will simply “look the other way,” rather than risk their jobs and their pensions.

How the New York Stop and Frisk Could Affect Chicago

A Bronx police officer commented “Welcome to Chicago,” following the NY Council’s veto, insinuating that the crime rate of New York City would soon reach that of Chicago once police officers stopped taking advantage of “stop, question and frisk.” A spokesman for the Chicago Police Department responded to the barb, saying “We don’t engage in racial profiling.” Adam Collins went on to say that there was significantly less crime, fewer shootings and fewer murders in 2012 than any other year since 1965—and without imposing on citizen’s rights. Chicago does have a version of stop and frisk known as “contact cards.”

This allows police to stop an individual, ask for name, phone number and the disclosure of any tattoos however the officer may not make physical contact without probable cause. Nevertheless, Chicago police are not completely exempt from racial profiling. Four interns for Rainbow Push have accused Chicago police of racial profiling as the four young black men, ranging from 19-21, were stopped and handcuffed as they were walking toward a bus stop. One of the young men attends Chicago State University and is seeking a degree in criminal justice. The young men suspect the police were looking for guns—although no weapons were found during a pat-down. Police officials defend the actions of the officers stating the area is well-known for gang violence and that one of the young men refused to remove his hands from his pockets when asked. Continue reading

July 31, 2013

Chicago Arrest News – Is Your Cell Phone Protected from Searches Incident to Arrest?

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

Living in Chicago, many people have unfortunately been subject to unlawful search and seizure by the Chicago Police Department.

That’s the question two federal appellate judges are pushing the Supreme Court to decide. The U.S Supreme Court held over forty years ago that police who arrest someone have the authority to search all items on their person. However, since this time, items on one’s person have grown to encompass a wide variety of cell phones, including smart phones, and tablets which contain a medley of personal information such as pictures, documents, and other private data, that would once have been found only in one’s home. The lower courts are now struggling to decide how to apply tried and true legal principals to these new technologies, and some are calling for the Supreme Court to step in.

In a 2-1 decision this past May, the First U.S. Circuit Court of Appeals held in the case of United States v. Wurie, No. 11-1792 (1st Cir. 2013), that police practice of seizing and searching cell phones at the time of arrest violates the Fourth Amendment.

The facts of the Wurie case are as follows: while performing routine surveillance, Boston police witnessed what appeared to be a drug sale. Police stopped the individual involved, later learned to be Brima Wurie, and found drugs in his pocket. Police also confiscated two cell phones from Wurie at the station. While waiting to book Wurie, one of the cell phones begin ringing. The phone number was identified as “my house” on the cell phone and police officers observed a picture of a woman and a baby set as Wurie’s “wallpaper.” Police searched the phone number and linked it to an address. After some questioning of Wurie, officers drove to the address they had discovered from the phone number and, believing Wurie may have stashed drugs in the home, they entered to “freeze it” while they obtained a warrant. After obtaining a warrant, officers seized large quantities of drugs from the home.

The First Circuit held that allowing the police to search the phone data without a warrant any time they conducted an arrest would create a serious threat to the privacy of countless individuals.

On Monday, the First Circuit rejected the Justice Department’s request that the justice’s rehear the case and, in a rare move, urged the Supreme Court to take up the issue. Chief Judge Sandra Lynch wrote in her statement that while she believed the case me the criteria for a rehearing, she believed the better course of action would be for the Supreme Court to review the case and resolve provide a final resolve on the issue.

Currently, the circuits are split on the constitutionality of cell phones searches incident to arrest. The First Circuit now joins the Ohio and Florida Supreme Courts in requiring a warrant, while another three circuits, including our Seventh Circuit, have held no warrant is required.

We are left to wait and see in the next few months whether the Supreme Court will take up the issue. In the meantime, one thing that can be learned from the Wurie case and others like it: a skilled defense attorney with experience handling Fourth Amendment issues is absolutely critical to your case. Specifically, a seasoned defense attorney can review the facts of your arrest and determine where the police may have violated your Fourth Amendment rights. Further, a veteran defense attorney like Brima Wurie’s is not afraid to challenge existing precedents and champion new legal holdings.