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Recent Blog Posts
Federal Court Reverses Drug Conviction Based on Faulty Police Affidavit
Police often use confidential sources to get information in drug investigations. When a source identifies a suspect, police must still obtain a proper search warrant from a judge before acting upon the information. It is incumbent upon the officer to file an affidavit with the court explaining his or her use of a confidential source and furnishing sufficient information regarding the source's credibility. Failure to do so may result in a trial or appellate court rejecting the evidence gathered from the warrant.
Reversed Convictions from 2010 Case
Recently a federal appeals court in Chicago reversed the convictions of an accused drug dealer based on a faulty police affidavit. The appeals court emphasized that it was a “close” call but found the police had failed to provide any meaningful information regarding the credibility of an informant who was instrumental in the defendant's identification and arrest.
Courts Take a Deferential Approach to K-9 Unit Drug Searches
Police commonly use specially trained dogs—sometimes called “K-9 units”—to assist in detecting the presence of illegal drugs. Last year, the United States Supreme Court clarified the role of such dogs in establishing probable cause to search a defendant's vehicle. The Florida Supreme Court had held that police must establish the dog's reliability by introducing “the dog's training and certification records,” “field performance records,” and “evidence concerning the experience and training of the officer handling the dog,” among other things. The U.S. Supreme Court said such an “exhaustive” demonstration was unnecessary. Instead, prosecutors need only introduce the dog's training records to show it is a reliable detector of possible drugs. The dog's actual record in the field—the number of hits or misses—is not relevant to a probable-cause determination.
Understanding Your Rights in a Criminal Trial
A person facing federal drug charges must always be prepared to assert his or her constitutional rights before and during trial. Once a jury convicts, it becomes much more difficult for a defendant to assert those rights on appeal. A recent decision by the 7th U.S. Circuit Court of Appeals in Chicago illustrates the uphill climb drug defendants face.
An Unprompted Confession
The underlying case involved a man accused of possessing and distributing crack cocaine. The Drug Enforcement Administration (DEA) paid the man's nephew to go to his house, purchase cocaine, and then bring the drugs to the DEA. The DEA also fashioned the nephew with an audio/visual device so he could record the purchase.
Based on the recording and the drugs, the DEA agents obtained a search warrant. The agents then sent the nephew back to his uncle's house to make a second drug purchase. Following that, the agents then executed a raid on the uncle's house. During the search, agents detained the uncle and other occupants of the house. At this point, the uncle twice said, “don't worry, everything in that room is mine,” referring to the illegal narcotics agents seized.
Does Amnesia Render a Defendant Unfit to Stand Trial?
Under Illinois law, the state may not try a defendant who is “is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.” The law presumes all defendants are fit to stand trial unless there is expert testimony that can prove otherwise. Recently, the Illinois Supreme Court considered the question of whether a defendant who suffered brain damage, and therefore could not recall the events leading to his criminal trial, was unfit to stand trial.
Self-Inflicted Wound Led to Brain Damage
According to testimony offered in court—but, it should be noted, not at a criminal trial where guilt was determined—the defendant in this case broke into his ex-wife's house and held her and two other persons at gunpoint. The ex-wife managed to call 911, and a police tactical team subsequently arrived and surrounded the house. Following a standoff with police, the defendant apparently shot himself in the head. Police entered the house and found the defendant “lying face down and bleeding.”
A Police Threat to “Kick Down the Door” Is an Arrest
How far may police go in pursuing a suspected drunk driver? Driving under the influence is a criminal offense in Illinois and police must follow certain procedures when detaining and charging a suspect. Failure to follow these procedures may lead a court to dismiss a drunk driving case even when there is substantial evidence of a defendant's guilt. A recent Illinois appeals court decision offers one example of how police error can affect a drunk driving case.
When Is a Suspect Under Arrest?
In June 2012, a woman returned home after attending a local festival in Joliet. Shortly thereafter, the woman's husband answered the door to find two police officers. The police were investigating a report of a hit-and-run accident. They asked to speak with the wife. The husband permitted the officers to enter the residence.
The woman was in the bathroom at the time. The officers heard her vomiting. The police demanded she open the door. One of the officers said, “If you don't open up the door, I am going to kick it in.” The woman complied and later told another officer that she had been drinking and got into an accident. She then agreed to go down to the police station, where she took and failed a sobriety test. The state then charged her with driving under the influence.
Protecting a Defendant's Right to a “Speedy Trial”
Drunk driving in Illinois can legally mean a few different things. Illinois law defines driving “under the influence of alcohol” as a separate offense from driving when “the alcohol concentration in the person's blood or breath is 0.08 or more.” In other words, the state can prove a person drove under the influence without necessarily proving he or she also drove with a blood-alcohol level above the legal limit. And while it is not uncommon for prosecutors to charge defendants with both offenses, the state must always obey important constitutional safeguards.
The Illinois Constitution requires a defendant to receive “a speedy public trial” on any charges. Illinois defines “speedy” as “within 160 days from the date defendant demands trial unless delay is occasioned by defendant.” Failure to comply with this deadline means a court must dismiss the charge against the defendant, regardless of the evidence against him or her. For example, in a recent Illinois appeals court decision, the judges agreed with a trial court's dismissal of a DUI charge added more than a year after the case began.
What is Post-Conviction Relief?
A criminal conviction has serious and lasting consequences for a person accused of a serious crime. Many convictions are based on circumstantial and incomplete evidence. In some cases, evidence discovered after trial may serve to prove a defendant's innocence, or at least raise reasonable doubt about the conviction. For that reason, Illinois law does make it possible for convicted defendants to seek post-conviction relief if there is evidence of “actual innocence.”
The Illinois Post-Conviction Hearing Act establishes a three-stage process for determining whether a defendant is entitled to relief. In the first stage, a judge must decide if the defendant's petition is “frivolous” or wholly without merit. If it is not, the petition proceeds to the second stage, where the defendant must make a “substantial showing” that his or her constitutional rights have been violated. The second stage is not an evidentiary hearing. Rather, the judge must decide whether the defendant has offered sufficient new evidence which, if true, would justify setting aside the conviction.
Illinois Court Reverses DUI Conviction Due to Improperly Admitted Breath Test
Police administration of Breathalyzer tests is standard procedure in driving under the influence (DUI) arrests. Illinois law makes it unlawful for a driver to operate a motor vehicle if his or her blood-alcohol level is 0.08 or higher. A Breathalyzer test, properly admitted into evidence before a judge, can prove that a driver exceeded this legal limit.
It is important to understand “drunk driving” is not limited to passing or failing a Breathalyzer test. The law prohibits a person from driving “under the influence of alcohol.” This influence may be observed by police, or even other drivers, and does not necessarily require a blood-alcohol test.
Appeals Court Rebukes Judge for Ordering Jury to Convict Drug Defendant
The right to a trial by jury is the foundation of the American legal system. Both the Sixth Amendment to the United States Constitution and the Illinois Constitution guarantee every person accused of a crime the right to present a defense to an “impartial jury.” No prosecutor or judge may waive or take away that right on behalf of a defendant.
Unfortunately, in the government's zeal to convict individuals charged with serious drug offenses, even the right to a jury trial may be compromised. Recently a federal appeals court reversed the drug conviction of a defendant after the judge ordered the jury to return a guilty verdict. While there are cases where a judge may enter such a “directed verdict” in favor of a defendant (if the prosecution presents insufficient evidence to convict) no judge should ever unilaterally convict a defendant who has pleaded not guilty and asserted his or her right to a jury trial.
An Untimely Confession
The case involved a defendant accused of conspiring to distribute cocaine and other related offenses. The defendant pleaded not guilty and demanded a jury trial. At trial, the defendant's attorney argued his client initially agreed to participate in the illegal drug conspiracy, but ultimately withdrew before any illegal drug deal took place. However, the defendant later took the stand in his own defense, against the advice of counsel, and confessed to all of the charges against him.
Study Shows Chicago Police Continue to Make Large Number of Arrests for Misdemeanor Marijuana Possession
The movement towards legalization of marijuana has gained steam in recent years with successful initiatives in Colorado and Washington state permitting residents to possess a small amount of the drug for “recreational use.” But marijuana possession remains a serious crime under federal and most state laws. In Illinois, law enforcement takes illegal marijuana use quite seriously, as detailed in one recently released study.
The Illinois Consortium on Drug Policy (ICDP), a project of Roosevelt University in Chicago, recently analyzed statewide police practices with respect to arresting and ticketing persons accused of misdemeanor marijuana possession. The ICDP found widespread inconsistencies in enforcement among localities. Over 100 Illinois cities and municipalities afford police the option of ticketing, rather than arresting, for misdemeanor marijuana possession. But this has produced a “patchwork” approach to law enforcement, according to the ICDP, leading to a system where “[g]eography, not justice, determines whether marijuana possession results in a fine or arrest.”
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