Most people understand that the Constitution prevents police officers from searching their home or person without a warrant or probable cause. But over the years, courts have carved out certain exceptions to that rule. Police may enter a home if they believe there is an imminent threat of danger to someone. While police may not be able to search your entire home during an arrest, they can search the immediate area around you. In recent years, as more and more people use computers and cell phones, new issues related to search and seizure have been analyzed by the courts. So far, these decisions uphold the idea that police cannot search your electronics without probable cause.
Searching Cell Phones
Virtually everyone has a cell phone, and if you are arrested for any crime, the police will take your cell phone into custody and hold it with your other personal possessions until you are released. But the 2013 U.S. Supreme Court case Riley v. California established that law enforcement officials may not search the electronic contents of a cell phone without a warrant or probable cause.
This both clarified what police are able to do with cell phones and muddied the waters a bit. The Supreme Court was clear that police may examine the physical phone as much as they wish. But something truly incriminating would have to be on the outside of the phone in order to provide law enforcement with a reason to search it without a warrant.
Police may be able to obtain a warrant if as part of their investigation they believe the phone’s memory contains information related to suspected criminal conduct they have a reasonable suspicion of. They will likely also be able to search the phone if they believe doing so is necessary to prevent the imminent harm to another.
However, any search of the phone will have to be related to the arrest and what the police observed prior to it. If the police observe the phone used as part of a suspected drug deal, a court will probably have no problem issuing a warrant allowing the police to search it. But if police stop a suspect with a small amount of drugs and he or she was not using the phone at the time of the arrest, a court will almost certainly not grant a warrant allowing authorities to search the phone’s electronic contents. A court would likely also suppress any evidence that police obtained from searching a phone without a warrant in such a case.
Need Legal Help?
Search and seizure issues are among the most complicated in criminal defense cases. The slightest difference in the facts of a case can result in completely different outcomes That’s why it’s so important to contact an experienced criminal defense attorney if you or a loved one have been charged with a crime in the Chicago area, and you believe the police may have violated your constitutional rights. For more information, contact Barney & Hourihane today for a consultation.
The Illinois Controlled Substance Act makes it a crime to possess illegal drugs either for personal use or with intent to distribute. It covers many types of controlled substances including illegal drugs such as marijuana, cocaine, and heroin, as well as look-a-like substances and prescription drugs. Whether you’re accused of possessing a small amount of marijuana or a more significant amount of harder drugs, a conviction under the Controlled Substances Act can have grave consequences that could affect your freedom, ability to find a job, and other rights. Because of this, it’s important to consult with a criminal defense attorney with experience defending drug cases as soon as possible after you’ve been arrested.
What The Prosecution Must Prove if You’ve Been Charged with a Drug Crime
Merely possessing a controlled substance is not enough to establish guilt. All defendants are presumed innocent until proven guilty, and that requires prosecutors to establish certain facts to get a conviction. In order to obtain a conviction for possession of a controlled substance, prosecutors must prove beyond a reasonable doubt:
· That the substance in question is actually illegal under Illinois law, or a controlled lookalike substance defined in the Controlled Substance Act.
· That the defendant knowingly possessed the substance in question.
· That the defendant had either actual or constructive possession of the substance. This means that the drugs were either found on the defendant or in a vehicle, and that police followed the law when finding the drugs.
If a prosecutor cannot prove each of these things, then a defendant cannot be convicted of a crime under the Controlled Substance Act. While each case is unique, often it is difficult for prosecutors facing an attorney who is experienced with defending drug cases to prove each of these elements. Often, there are extenuating circumstances that courts will consider.
One common defense in drug cases is to argue that the actions of the police amounted to an unlawful search and seizure. Police must have a warrant or probable cause to search you or your property, and if they do not have probable cause, they have violated your constitutional rights. In that case, a court will not allow any evidence that the police illegally obtained to be introduced at trial. If prosecutors cannot introduce any evidence of drugs found by police, they simply have no case.
In addition, there might be circumstances showing that the drugs belonged to someone else or that a defendant did not know that he or she was in possession of illegal drugs. Any of these defenses may be argued to dismiss or reduce drug charges.
Chicago Gun Crimes Lawyer
Drug crimes are extremely serious. A conviction for drug possession can not only result in jail time, but also make it harder to find steady employments. That’s why it’s so important to contact an experienced criminal defense attorney if you or a loved one have been charged with a drug crime in the Chicago area. For more information, contact Barney & Hourihane today for a consultation.
As the city of Chicago has long been plagued by gun violence, the state of Illinois is known for some of the strictest gun control laws in the country. Any person in the state of Illinois who wants to legally possess firearms or ammunition must apply for a Firearm Owners Identification Card with the Illinois State Police. Filling out a simple form online is the first step to obtaining a FOID card, but the police conduct a lengthy background check to determine whether or not they will issue a FOID card to an applicant. By statute, this process is only supposed to last 30 days, but often it takes 60 days or longer for the state police to issue a FOID card.
Who May Receive a FOID Card?
Under 430 ILCS 65/41, anyone over the age of 21 is eligible for a FOID card. Those under the age of 21 wishing to obtain a FOID card through the Illinois State Police may do so with the written consent of a parent or guardian who is also eligible for a FOID card, so long as the minor has not been convicted of any misdemeanor more serious than a traffic violation. FOID cards remain valid for 10 years after being issued by the state police. Any Illinois resident in possession of firearms without a valid FOID card may be arrested and subject to misdemeanor or felony charges. However, non-residents who enter the state of Illinois with firearms or ammunition are not required to obtain a FOID card.
Who May Be Denied a FOID Card?
While the qualifications for obtaining a FOID card sound relatively simple, there are several circumstances under which an application can be denied, which is the reason why it can take the state police so long to investigate whether or not someone meets the qualifications for eligibility. Common issues that can cause a FOID card application to be rejected include:
· A prior felony conviction
· An addiction to narcotics that can independently verified
· A stay within a mental institution within the past five years before applying for a FOID card
· An order of protection is in force against the applicant
· A prior misdemeanor conviction for domestic battery
This list is by no means exhaustive, so consulting with an attorney is important to determine if you have been wrongfully denied a FOID card. In many circumstances, a FOID card can also be revoked. In that case, the FOID card and any firearms in the possession of the FOID card holder must be turned over to a local law enforcement agency immediately. However, as long the card holder is not expressly barred by the statute from obtaining a FOID card, in many cases they can successfully re-apply for a FOID card and petition a court for the return of any confiscated firearms.
Chicago Gun Crimes Lawyer
If you are having trouble obtaining a FOID card or believe you have had firearms wrongfully confiscated by the police, then an experienced Chicago criminal defense attorney can help you navigate the complicated web of Illinois gun laws. For more information, contact Barney & Hourihane for a consultation.
Whether the police have probable cause to detain a suspect and perform a search with a narcotics-sniffing dog is often a very fact sensitive question. However, a recent Illinois case, also based on a U.S. Supreme Court case, has shed some new light on how long the police can detain someone while awaiting the arrival of drug dog, and under what circumstances that detention can occur.
People v. Reedy
In People v. Reedy, Will County Sheriff’s Deputies, not far from Chicago, pulled over two men after they noticed the driver repeatedly drifting over the fog line. Deputies questioned the men for a few minutes and checked to see if they had warrants, as is typical in a traffic stop. The men were patted down, and deputies discovered one of the men had a large amount of cash. Less than five minutes after the stop was initiated, a narcotics officer and his drug-sniffing canine arrived. The dog indicated that drugs were present in the vehicle. The deputies conducted a search and discovered a truly massive haul of contraband, specifically 900 grams of heroin.
The suspects were taken into custody and charged with various drug crimes. Both men then filed motions to suppress the drug evidence, which were granted by the trial court after finding that the deputies lacked reasonable suspicion and probable cause to search the vehicle. The Third District Court of Appeals initially reversed the trial court, but then allowed a rehearing following a related Supreme Court decision just eleven days later, Rodriguez v. United States. That case held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”
The Court of Appeals upheld its initial ruling finding that the wait for the narcotics dog did not violate the Fourth Amendment rights of the two men, however, there is still no hard and fast rule for what amounts to a delay for police to get a drug-sniffing drug. In Reedy, the court found that asking the defendants questions for five minutes was not an unreasonable delay. However, in other cases, Illinois courts have found that a 15 minute delay was an unreasonable amount of time to detain suspects while waiting for narcotics-sniffing dog.
Ultimately, while Reedy has slightly clarified how long police have to question someone before the arrival of a drug dog, what is unreasonable is going to depend on each individual case and the actions of the officers involved, which is why knowledgeable legal representation is so important if you’ve been charged with a serious drug crime in the state of Illinois.
Need Legal Help?
If you’ve been charged with a drug crime, you need an experienced criminal defense on your side who will ensure that your Constitutional rights are protected at every stage of a criminal case. For a consultation, contact Barney & Hourihane, LLP today.
Of course every city and village in the state of Illinois has a police force. Counties have sheriffs, and there’s even the Illinois State Police. But can a county prosecutor also have a private police force conduct investigations for him? It sounds excessive given the number of law enforcement agencies that are already present in the state, and lower courts have already found that these special enforcement units violate Illinois law. Now, the issue is about to head to the Illinois Supreme Court
A State’s Attorney Sets Up a SAFE Unit
In 2011, the LaSalle County State’s Attorney created the State’s Attorney Felony Enforcement Unit with the specific aim of patrolling I-80 to seize drugs and cash from suspected drug dealers coming in from western states such as California and Arizona.
The SAFE Unit soon made several major busts, five of which have been consolidated in the case People v. Ringland. All of the defendants have filed motions to suppress the evidence obtained against them, and after prevailing at the trial court level, the case was appealed last year.
In addition to arrests initiated by the SAFE Unit, in some cases its investigators only issued warnings. In one instance, the SAFE Unit pulled over a driver for speeding. A drug-sniffing dog indicated the presence of 11 marijuana joints, which were seized along with $50,000 in cash. The driver was not criminally charged, but such seizures accomplished the goals of the SAFE Unit and funded it through the state’s attorney’s office.
While state law allows prosecutors to appoint “special investigators” to serve subpoenas and work toward “conducting investigations that assist the State’s Attorney with his duties,” the appellate court found that a group such as the SAFE Unit was far beyond anything allowed by statute, and in fact made police superfluous. The court held that a special investigator can only assist a prosecutor once police have properly brought the case before the office.
While the SAFE Unit is currently off the roads, the LaSalle County State’s Attorney appealed the case to the Illinois Supreme Court, which is expected to hear it in May of this year. While anything is possible when the case goes before the high court, it is hard to imagine that the Supreme Court will reverse the court of appeals given the unanimous nature of its opinion and its strong rebuke of the LaSalle County State’s Attorney’s Office. If the Supreme Court does indeed side with the defendants, their convictions will be tossed out, and it is doubtful that any other state’s attorneys in Illinois will attempt to create similar SAFE Units.
Contact a Chicago Defense Attorney
Illinois courts take drug and firearm cases seriously. A conviction for one of these crimes can mean years behind bars, so you need an experienced Chicago defense attorney on your side who can recognize when police have violated state law and who will fight to suppress illegally obtained evidence at trial For more information, contact Barney & Hourihane today for a consultation.
You’ve probably heard defendants argue that the police entrapped them into committing a crime in certain TV shows. Most people think this merely means showing that the police lured you into doing something illegal, but entrapment actually has a highly nuanced definition in the state of Illinois, and establishing entrapment as a defense is not nearly as simple as claiming the police tricked you into doing something that got you arrested.
Entrapment Under Illinois Law
Under 720 ILCS 5/7-12, entrapment is defined as conduct that is “incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of that person.” The statute goes on to state a predisposition for the illegal activity or merely acting on an opportunity to engage in the illegal act offered by law enforcement does not constitute entrapment.
Courts have held that entrapment is along the lines of police coming up with an entire plot to get a defendant involved with selling drugs and then arresting him once he has joined in on the conspiracy, while merely offering to buy drugs from a defendant who is already engaging in the sale of a controlled substance would not constitute entrapment.
Establishing Entrapment at Trial
To prove entrapment in court, a defendant initially has the burden of showing that law enforcement induced him to act illegally, meaning that he would not have committed any crime if the police hadn’t first come up with it. If the defendant can establish this, then the burden shifts to the prosecution. When the defendant produces evidence of entrapment, the state must show beyond a reasonable doubt that there is no evidence of entrapment
The state’s attorney must then show that the defendant had a predisposition to commit the crime. This mean showing that the defendant had an inclination to the commit the crime, which could be established simply by showing that the defendant was quick to purchase illegal drugs from an informant if offered them. Overcoming predisposition in that case would require showing that the defendant had no urge to purchase drugs until an informant continually badgered him into purchasing them and violating the law.
As illustrated above, the differences between what does and does not constitute entrapment can be highly technical and fact specific. This can make establishing an entrapment defense extremely difficult in even the best of circumstances. Attempting to use entrapment as a defense also carries some risk as it basically means admitting that a crime was committed, but that there was a good reason to do an illegal act. For these reasons, it’s important to enlist an experienced criminal defense attorney before pursuing an entrapment defense.
Chicago Criminal Defense
If you’re facing drugs or firearms charges, the State’s Attorney’s Office will likely be looking to hit you with a heavy sentence. That’s why it’s so important to choose a Chicago criminal defense attorney who understands how to protect your rights and if it’s appropriate to use a defense like entrapment. For more information, contact Barney & Hourihane today for a consultation.
Illinois Ponders Changing the Law When It Comes to Suing Former Prisoners for the Cost of Incarceration
Imagine spending several years behind bars for a drugs or weapons offense. You made a mistake and you’ve done your time. When your sentence is up, you’re ready to find a job and be a responsible member of society again. You even receive a small inheritance from a distant relative soon after your release and plan to use it to start your new life. Everything seems to be turning around.
And then the state of Illinois comes calling. It wants that inheritance, and then some for the money it spent incarcerating you for all those years. That scenario may sound like a bureaucratic nightmare, but it’s unfortunately all too real for some former inmates in the state of Illinois. And completely legal.
The State Reconsiders an Old Law
Under 730 ILCS 125/20(a), a law that has been on the books since 1982, the local State’s Attorney’s Office is authorized to “institute civil actions in the circuit court of the county in which the jail is located to recover from such convicted confined persons the expenses incurred by their confinement.”
The law was apparently ignored for almost three decades, but in recent years, several State’s Attorney’s Offices, including Cook County, have used it to attempt to recoup the cost of incarceration from several former inmates. In most cases, the few thousand dollars that the state may recover barely covers the costs of pursuing the lawsuit. But according the Chicago Tribune, the law has been the basis for more than 30 lawsuits filed by State’s Attorneys since 2010.
In most cases, the lawsuits were only filed after a former inmate came into money from an inheritance or trust fund, but in at least one case the lawsuit appeared to be retaliatory. That suit was filed against the former inmate after he received a sizable settlement from the Department of Corrections for failing to properly treat his cancer.
In light of the public outcry against the practice of suing former inmates who are attempting to turn their lives around, the Illinois legislature has considered removing the law from the books. The change to the law has received bipartisan support in Springfield and is very likely to pass in 2016. However, until that change actually does go into effect, former inmates are at risk of being sued for the time they spent behind bars.
Chicago Defense Lawyer
No one wants to go to prison, and after spending years there, the last thing anyone wants to deal with while trying to get their life in order is a lawsuit from the state of Illinois seeking reimbursement for the time they spent there. If you’ve been charged with a crime or are facing a lawsuit related to your incarceration from the state of Illinois, an experienced Cook County criminal defense attorney represent your interests in court. For more information, contact Barney & Hourihane today for a consultation.