Does the Fourth Amendment right to be free from unreasonable searches and seizures even exist anymore?
A recent Illinois Appellate Court decision in People v. Neal, No. 1-09-2814 (June 29, 2011) Cook Co., 3d Div. is just another example of the current eroding of the Fourth Amendment. A Chicago Police Officer detains a man who is out on the yelling “blows”. He never sees the defendant with any drugs or money and does not view any hand to hand transactions A search incident to arrest revealed a small amount of heroin. So the defendant was arrested for possession of a controlled substance, a class 4 felony, carrying a potential penalty of 1-3 years in the penitentiary.
Now anyone with any common sense knows that the defendant is selling drugs. That is not the point. Does the defendant not have a First Amendment to talk to passerby’s on the street? Is yelling “blows” enough to seize a person under the Fourth Amendment?
Not to mention the fact that it was lazy police work. Obviously the defendant is selling drugs. Why stop him when he is yelling out, before he conducts a hand to hand transaction. If the officer instead exercised some patience and watched him commit a few hand to hand transactions, he may have been able to make a delivery of a controlled substance charge stick, which is a class 1 felony carrying a potential sentence of 4-10 years in the penitentiary.
Collateral consequences to a criminal conviction
There are many collateral consequences involved when someone is charged with a criminal offense that many people do not give appropriate consideration to when handling their case. What is a collateral consequence? It is any consequence of the criminal charge outside the court consequences, which I will call direct consequences. An example of a direct consequence would be a person losing his driver’s license after being convicted of a DUI, or going to jail after being convicted of robbery or burglary. Examples of collateral consequences include a person being unable to get a job because he has to disclose his retail theft conviction on job applications, or a person being unable to enlist in the military because of his conviction for domestic battery.
While direct consequences are obviously important (nobody wants to go to jail after a criminal conviction), collateral consequences are also very important to consider in deciding how to handle your criminal or traffic case. They often get shortchanged by both criminal defendants and defense attorneys simply because they are often long term instead of short term. An experienced lawyer will however recognize when collateral consequences need to be accounted for in handling a criminal case.
Certain scenarios regularly appear that involve collateral consequences. If you are young, such as high school or college age, any criminal conviction may hurt your chances down the road in getting a job. Often times a young defendant charged with theft or battery may not realize how this will hurt him down the road, he just wants to stay out of jail today. Nevertheless, it should be considered and discussed with his attorney.
Another situation that arises often is a non-citizen defendant facing a criminal charge. A conviction, and sometimes even supervision, can get a person deported or their visa revoked. Another situation is the defendant who holds a commercial drivers license (CDL) and is convicted or receives supervision on a traffic offense such as DUI or speeding. In addition to the direct consequences of possibly losing his CDL, he may have trouble getting a job driving a truck because he may be uninsurable for the company.
My final example concerns a person who is in college or professional school. He or she may be expelled from school after a criminal conviction, or have trouble applying for a professional license in the future.
Timeline of a Criminal Case (Part 3)
The next stage of a felony criminal or traffic case is the arraignment. It is at this hearing where the defendant is read the formal charges against him or her. The defendant must then enter a plea of guilty or not guilty. If the plea is guilty, either through an agreement negotiated by the defendant’s attorney with the prosecutor, or a blind plea, the judge will admonish the defendant about the rights he or she is giving up by pleading guilty. The defendant will then either be sentenced on this date if a pretrial investigation is waived, or the case will be continued for sentencing.
More often than not at this stage the plea the defendant will enter will be not guilty. If that is the case, the defendant’s attorney will make a motion for discovery. This is a motion for the prosecution to tender all evidence that they anticipate using at trial as well as any other relevant evidence. For example, if the defendant is charged with a aggravated DUI, he or she is going to want to make a motion for, among other things, all police reports generated, a copy of the log sheet for the breathalyzer used by the police, a copy of any audio or video recordings of the alleged erratic driving or of the defendant performing field sobriety tests, any medical reports concerning the defendant’s blood or urine that was tested, and possibly a copy of any 911 calls made concerning the defendant’s driving.
The prosecution will also make a motion for discovery asking for any evidence the defense intends to use in their defense. The case will then generally be continued for a status hearing so that the defense attorney and the defendant can review the prosecution’s evidence and make a more informed decision about whether to proceed to trial or to negotiate a plea bargain with the prosecutor.
The defense attorney will also file an answer following the arraignment in which the defendant admits or denies all allegations laid out in the information or indictment. If the defendant is going to raise any affirmative defenses, such as self defense, alibi, or necessity, it must be raised in his or her answer.
Eventually after discovery is complete, the case will be set down for a bench or jury trial or a plea of guilty.
Timeline of a Criminal Case (Part 2)
The next court date for a criminal defendant charged with a misdemeanor offense is generally a status date for the defendant to have his defense attorney file an appearance and request any evidence in the case that the State will be using against the defendant. If the case is going to result in a plea of guilty it is possible for the whole case to be resolved on the first court date. However, in most cases there may be one or several more status dates until the case is eventually set down for a jury trial, bench trial, or a plea of guilty.
The next court date for a criminal defendant charged with a felony offense is usually the preliminary hearing. This hearing generally occurs within a few weeks from the bond hearing. If the defendant is still in custody because he or she could not post the bond set, the hearing must be held within 30 days of arrest, unless the defendant agrees to a continuance. If the defendant is on bond, the hearing must be held within 60 days of arrest, unless the defendant agrees to a continuance. At the preliminary hearing, the prosecution must prove to a judge that there is probable cause for the case to move forward. The Prosecution generally does this through eyewitness testimony or testimony from the investigating police officer. The defense attorney will have an opportunity to cross-examine all witnesses. If the judge finds no probable cause or if a hearing is not held within the proscribed time constraints, the case is dismissed. However, the prosecution can decide to bring the charge to a grand jury, and if the grand jury returns what is called a true bill, the case will be reinstated, and the defendant will be notified by the court that he must return to court.
The next blog, I will discuss the court appearance that follows the preliminary hearing – the arraignment.
Timeline of a Criminal Case
Many people enter the criminal justice system in the chicagoland area and they have no idea what the procedure is and the normal timeline for a criminal case. In fact, some criminal defendants who come to court with no attorney or an attorney who has not explained the process to them do not even know what is going to happen with their case on that particular court appearance. The purpose of this blog entry is to provide a clear timeline of the natural progression of a criminal case in the Chicagoland area. Today I will start with the bond hearing, which is the first court appearance a defendant makes in front of a judge.
The first court appearance after an arrest is the bond hearing. This is held within 72 hours of arrest and is before a judge. The defendant is entitled to an attorney at this hearing and if he cannot afford an attorney one will be appointed for him. At this hearing, none of the actual facts of the case will be at issue. The prosecutor will briefly summarize what they believe the evidence in the case will show and then will inform the judge about the criminal defendant’s criminal history and whether the defendant has ever missed a court date in his or her past. The defendant, through his attorney, will then lay out factors that show the court that he is not a flight risk, such as the describing the defendant’s ties to the community. The defense attorney will also try to present facts that show the defendant is not a risk of danger to the community. The court will then decide whether there is probable cause to detain the defendant and set a bond based on the defendant’s likelihood of returning to court and whether he poses a danger to the community. The bond is money the defendant must post in order to be released from jail and to assure his appearance at each court date. The defendant must post 10% of the bond as bail. Should the defendant miss court, he forfeits the bond.
The next blog, I will discuss the court hearing immediately following the bond hearing – the preliminary hearing.
Woman Suing Lake County Over DUI Arrest
This is an interesting story from the Daily Herald: http://www.dailyherald.com/story/?id=405169. A woman is suing the police and the Lake County State’s Attorney’s office for malicious prosecution and wrongful arrest for DUI. She was pulled over for DUI and Police and the State’s Attorney’s Office obtained a warrant to take her blood. She refused to comply and was charged with contempt of court as well as DUI. The contempt of court charge was thrown out and she was found not guilty of the DUI.
It will be interesting to see if her case is a winner. This appears to be a new trend the police and prosecution in Illinois. They have a judge “on call” to issue warrants for blood of people accused of DUI’s. In order for the police to obtain a warrant, they must have probable cause. My concern with this new trend is whether the judge is actually evaluating each case to determine if the police do in fact have probable cause to obtain the evidence from someone’s person.
This should not be taken lightly. We are dealing with the Fourth Amendment right to free from unreasonable search and seizures. And we are not dealing with a search of someone’s home, which is obviously very important. Instead we are dealing with the search of someone’s actual person. What can be a more sacred right than that? I don’t think they should be allowed to take our blood without consent, period.
However, if the courts do believe it passes constitutional muster, I still have concerns about the way it is being done. My fear is that the judge issuing the warrant is just hearing the same old contrived story from police officers concerning DUI arrest. The person, in the police officer’s subjective point of view, failed field sobriety tests. However, there are many police officers who are not qualified to give such an opinion. If we are going to allow the State to take such an invasive action such as taking our blood from our persons, I think we must demand that the proper standard of probable cause be met.
To me, this at the very least requires the judge granting the warrant to inquire into the police officers experience in giving the very technical field sobriety tests they rely upon.
Is Court Supervision Always the Right Move?
Often times criminal defendants and their attorneys think that court supervision is the best solution for a client and should always be taken if offered by the prosecution. In most cases, supervision is a very good disposition of the case. It does not involve any jail time. It is non-reporting, so you don’t have to report to a probation officer. Often times it is expungeable from a criminal defendant’s permanent record, so future employers will not have access to the plea.
However, it is still a guilty plea and can have severe direct and collateral consequences. For instance, in Illinois, if you receive supervision on a DUI, it is your one and only bite at the apple. If you ever get another DUI in the future, even if it is 50 years later, you are subject to a mandatory driver’s license revocation. So it is always preferable to beat the case at trial if possible, even if the State is dangling the carrot of court supervision before you.
Another consequence of court supervision is possible deportation. While the court and the prosecutor may not consider the charged offense a serious offense, federal immigration law may. So a person who is a legal resident or an illegal immigrant may face deportation even if they receive supervision on certain offenses. This can result in terrible situations for people. I have seen legal residents who have been in this country since they were children sent back to their country of origin because of guilty pleas!!
Also, while the state of Illinois may view court supervision as a slap on the wrist, the Federal government does not. When a person pleads guilty or is found guilty of a federal offense, the court uses the Federal Sentencing Guidelines as a guide to sentence the defendant. These guidelines take into account the defendant’s criminal history, and supervision counts! Thus, a defendant could end up with a longer sentence on a Federal drug charge because they decided to plead guilty in state court on what they considered a minor charge, such as simple battery or driving on a suspended license.
Another misconception out there is that all supervision cases are expunged. That is not the case. Certain offenses are ELIGIBLE for expungement, however the criminal defendant must actually petition the court for expungement. And there are many offenses that cannot be expunged, regardless of whether a defendant received supervision. Some examples are DUI, Domestic Battery and Reckless Driving.
Chicagoland Municipalities Charging Innocent Car Owners for Other People’s Criminal Offenses
Municipalities in the Chicagoland area have been hit by this recession hard. Most are finding creative ways to bring in revenue. One of those ways is to pass ordinances allowing police officers to tow cars and charge administrative fees to people arrested for traffic offenses such as DUI, driving on a suspended or revoked license, or driving without a license.
These fees can be as high as $1,200. A lot of times, the person who is arrested for a DUI or driving without a license or a suspended or revoked license is not the actual car owner. In this case the innocent owner, who did not commit any criminal or traffic offense if left paying the bill. Is this fair? See the attached article: http:
Of course you are entitled to a hearing, but your hearing will be before an administrative hearing officer who works for the village, and has an incentive to find against the owner because they are under orders to bring in money for the municipality.
Another egregious way in which these municipalities are making money is by pulling over undocumented immigrants and arresting them for driving without a license. Often times the police will sit outside of places where it is known that undocumented immigrants work and pull them over after they leave work.
Say what you want about our country’s immigration policy, but something seems wrong with the idea of having people do all of the work that no other Americans want to do, selling them cars, allowing them to purchase insurance policies that everyone knows will never actually pay out on any claims because the person has no license, and allowing them to purchase license plates and registration for the car, and then intentionally pulling them over to get a $1,200 administrative fee for the municipality. This is not fair and it is not right.
Should Strip Club be Liable for Allowing a Patron to Drive Drunk?
The Illinois Supreme Court recently ruled that a strip club could be sued for allowing a patron to drive drunk. The patron then crashed into a car in oncoming traffic, killing that motorist and her unborn child, as well as the passenger in his car. See http://www.suburbanchicagonews.com/beaconnews/news/2110464,Diamonds-strip-club-lawsuit_AU031810.article.
While I feel terrible for the victims and their families for their loss, I believe that only the drunk driver should be held responsible for their deaths. The driver was convicted of aggravated DUI and sentenced to 12 years in prison. The strip club that the driver was at did not even serve alcohol, and it appears that the driver was kicked out of the club.
Shouldn’t owners of private businesses be allowed to kick people out of their establishments for unruly behavior and not have to worry about a lawsuit being filed? Can we really expect business owners to babysit adults and take responsibility for their bad behavior? What should the employees of the strip club have done, called a cab? There is no guarantee that the driver would have gone along with that. He obviously drove to the strip club in the first place, how he was going to get home if he was not kicked out? Obviously he would have driven.
I can understand holding bars and taverns accountable because they serve the drinks. But to blame a private establishment for a driver’s drinking and driving when they were not the ones serving the drinks seems a bit much to me.
Double Jeopardy on Red Light Camera Tickets?
The Chicago Tribune had an interesting article about a driver who was issued a ticket for running through a red light by a Chicago police officer. http://www.chicagotribune.com/business/problemsolver/ct-biz-0316-problem-brown-20100316,0,6061431.column
The driver paid the $75 ticket; however, he then received a red light violation in the mail because a red light camera also caught him. The administrative penalty for the red light camera violation was $100.
A person cannot be punished twice for the same crime. That is called Double Jeopardy and it is not permissible under the US Constitution. Eventually, this driver was able to get the administrative penalty vacated based on double jeopardy principles.
This case presents many interesting issues for DUI clients and their attorneys. If a police officer is using a traffic infraction as the basis for probable cause to stop a motorist for a DUI, and there is a red light camera at that particular intersection, the pictures taken from that camera should be subpoenaed immediately by the motorist’s attorney. Especially if the police officer’s basis for the stop is that the motorist ran the red light, but he is not issued a ticket in the mail for the infraction. This video may provide proof that the traffic infraction was not in fact committed. Thus, there may be a motion to throw out the whole DUI case.
