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.

Can the State prove DUI based on drugs?

Prosecuting a DUI case based on drugs can be much more difficult for the State to prove than a DUI based on alcohol use if the driver refuses to take chemical tests.

The law states that if a person has any amount of drugs in their system while driving they are guilty of dui. But if the driver refuses to take a chemical test, the state must prove that he or she was under the influence of drugs. This can prove to be difficult because if the state intents to elicit an opinion from the arresting officer that the driver was under the influence of drugs, the officer must be properly qualified to give such an opinion. That means that they must have significant narcotics experience and training. Many traffic cops do not have such experience so their opinion cannot be admitted at trial.

Without chemical tests and an opinion from the officer, their is usually not enough evidence to prove a person guilty beyond a reasonable doubt of driving under the influence of drugs.

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.

Drug Sniffing Dogs

Interesting article in the Tribune today detailing how drug sniffing dogs are not always correct in alerting for drugs on a traffic stop. See http://www.chicagotribune.com/news/local/ct-met-canine-officers-20110105,0,6649157,full.story

This is certainly an alarming problem because the Supreme Court has stated that the police can have a drug sniffing dog sniff the outside of a car on a traffic stop without probable cause. They have concluded that such activity is not a search and is therefore not protected by the 4th amendment.

The article also states that according to their statistics, the amount of false alerts for drugs by these dogs is even worse for Hispanic drivers. A lot of this is due to there being no certification requirements for either the dog or the dog handler. Often times the handler, if he is so inclined, can cause the dog to alert. Thus, the handler is passing his biases on to the dog. It then just becomes another example of police racially profiling drivers.

This is a huge problem because there appears to be many innocent people being subjected to intrusive and embarrassing searches when there are not in fact drugs in the car. This can also come into play in a felony or misdemeanor criminal case where the dog falsely alerts drugs, but then an actual search of the car does not reveal any drugs but instead reveals a gun, or an open bottle of liquor, or gives the officer reason to start questioning the driving about a possible DUI. The courts would find such searches constitutional because of the dog’s alert even though no drugs were ultimately found.

The Illinois General Assembly should pass some standards or certification requirements to drug sniffing dogs and their handlers to alleviate this problem.

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.

Texting While Driving

It is hard to debate the merits of the new Illinois law that bans texting while driving. Sure we all have done it, but it is hard to argue that it is not dangerous. Certainly texting distracts drivers to the point of creating a real danger on the road for all of us.

However, does the new Illinois law also give police officers new discretion to justify traffic stops that lead to DUI or drug arrests?

The law states as follows: “A person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send, or read an electronic message.” 625 ILCS 5/12-610.2(b).

“Reading an electronic message” is pretty broad language. Does that include looking at a phone to see a phone number of a person calling? Does it include looking up a phone number to dial even when using a handsfree device? Could a police officer’s testimony that he saw a driver looking down and that the driver had a hand held device in the car be enough for a traffic stop?

I forsee DUI and drug arrests being made with this new law being used as the reason to conduct the traffic stop. Does this new Illinois law give police officers too much discretion to stop drivers?