Search and Seizure

March 15, 2019

Robert Kraft Refuses Plea in Solicitation Lawsuit

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

Is it ever worth it to take a plea? Not if you are Robert Kraft, the owner of the Super Bowl Champion New England Patriots. The prosecution offered Kraft a sweetheart deal on two misdemeanor solicitation charges. If Kraft agreed to state that “he would have been proven guilty had the case gone to trial” then the prosecution would drop all the charges. But Kraft and his attorney, smelling blood in the water, wants to force the prosecution to actually prove their case in court or dismiss the charges outright. Why?

Everyone knows that Kraft did exactly what he is being accused of, but the problem is not that he did it, it is how the prosecution came by the evidence that he did it. Essentially, police officers have Robert Kraft on video receiving sexual favors from working girls at the Orchids of Asia Day Spa. So, why is he not dead to rights, and why is the prosecution extending him such a great deal?

In order to understand that, we have to delve a little deeper into how they came by that information.

January 11, 2019

Two Cases of Illegal Search and Seizure by Chicago Police

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

A 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.

April 27, 2018

Vehicle Searches in Chicago

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

Vehicle 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

December 29, 2017

Do Police Need a Warrant to Search Your Cell Phone?

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

A 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?

November 10, 2017

Fourth Amendment in Chicago: Pat-Down and Reasonable Grounds

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

The 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

September 20, 2017

Confiscation and Forfeiture Laws in Chicago

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

In 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.

December 16, 2016

Search and Seizure Procedures in Chicago

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

Broadly 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.

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.

April 26, 2014

Defense Against Illinois Drug Possession with Intent to Deliver

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

Illinois Cook County Sheriff’s officers arrested a Minneapolis man in March after a traffic stop revealed that the man had 25 pounds of crystal methamphetamine in his vehicle. Officers pulled the vehicle over in Arlington Heights after observing it commit several traffic violations. The drugs were found after the driver consented to a police search; the driver was then arrested and charged with possession of a controlled substance with intent to deliver. The arrest raises several issues that an experienced drug possession attorney would explore to determine whether the police exceeded their authority in the search, seizure and arrest. Such a violation of the defendant’s rights could help get the charges dismissed or reduced.

Stop, Search and Seizure of Vehicle

Illinois police are permitted to stop a vehicle if they have reasonable suspicion to believe that the driver has committed a traffic violation. In this case, an experienced attorney would review police reports to determine whether the police had reasonable suspicion to believe that the driver did in fact commit a traffic violation. The police report should reveal what prompted the officers to pull the vehicle over; if no valid reason is included in the report, it could indicate that the police acted on a “hunch,” which does not qualify as reasonable suspicion. Lacking a reasonable suspicion, the stop and everything that followed would be a violation of the defendant’s Fourth Amendment right against unreasonable search and seizure, and may lead to outright dismissal of the charges.

Next comes the search. Police claim that the driver consented to the search. An attorney would again review the police report and discuss with the client how consent was given. There is a difference between if the officer asked, “Would you mind if I searched the vehicle?” or instead stated, “I’m going to need to search the vehicle.”

The first question implies that the driver had the right to refuse, which is the case in all police stops; there is no requirement that you answer the police officer’s questions, and you are always free to go on your way unless an arrest has been made. An arrest is made when you do not feel that you have the right to leave the scene.

The second statement, however, does not give the driver any indication that he is free to refuse the search and continue on his way. Consent is not freely given if the defendant feels that he cannot refuse. The search may also have been unreasonable if the reason for the stop did not warrant the search; for example, pulling the driver over for a broken taillight would not normally necessitate the search of a vehicle. If consent was not freely given, then discovery of the methamphetamines would be illegal. A motion to quash the arrest and suppress the evidence would be filed and the evidence would be deemed inadmissible in court, thus leading to an outright dismissal of the charges.

An attorney would also investigate to determine whether the police could prove that the drugs belonged to the driver. Was the car registered to him? If the driver borrowed a friend’s car and did not know it contained drugs, it may be possible to have the intent to deliver charge dismissed. If the car did belong to the driver, had he lent it to anybody recently who may have placed the drugs in the vehicle without his knowledge? If the drugs were planted by a third party, then the intent to deliver charge would have to be dismissed. Both of these scenarios would also negate the charge of intent to deliver.

Intent to Deliver in Illinois

The defendant in this case was also charged with intent to deliver, which carries stiff penalties; a conviction for possession of more than 900 grams of methamphetamine with intent to deliver is a Class X felony, which carries a possible prison sentence of 15 to 60 years and a maximum fine of $500,000 the street value of the drugs, whichever is greater.

An attorney will examine all the evidence to determine if any of the defendant’s rights were violated. If the evidence suggests a guilty verdict, he will zealously negotiate with prosecutors and the judge for a reduced sentence, or seek to reduce the charges or prison time in exchange for helping in an investigation of a larger drug ring. 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