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Think about your savings for a moment. Whether you’ve just saved up a few hundred dollars for a rainy day, or a nest egg of tens of thousands of dollars, this is important money. And it’s your money. Legally earned and taxed. Now imagine that you’ve done nothing wrong, but the government takes this money and won’t give it back. And then the fight to get back this money goes on for more than a decade. It doesn’t sound possible in the modern American judicial system, yet that’s the exact position that a Chicago man has found himself in for 13 years now.
A Shoebox Full of Cash and the DEA It’s uncontested that the government can seize money related to a crime. If you’re involved in drug dealing or rob a bank, you’re going to lose this money, and there’s not much an attorney can do about it. However, federal law has been expanded in recent years to also give the government the power to confiscate money remotely suspected of being involved in illegal activity. And then the burden is on the defendant to prove his or her innocence to get that money back. The Chicago Sun-Times recently detailed the unusual case of a Chicago real estate developer who, after destroying his credit in college and finding himself unable to open a bank account, began keeping his cash in a shoebox. In all, he saved up about $101,000 in cash over the course of several years. In 2002, the developer gave this cash to a trusted friend to travel to Seattle in search of a new restaurant venue. The friend bought a one-way ticket at Union Station, which raised a red flag for DEA agents who said this was the type of suspicious activity that drug dealers are typically engaged in. The agents spoke with the friend on the train. The government claims the friend gave them permission to search the bags, but this is disputed. Prosecutors also say that a drug-sniffing dog alerted to the presence of narcotics in the bags, but other than this, there is no evidence of any illegal activity. No drugs were found, and there has been no other indication that either the developer or his friend were involved in any illegal activity. The developer has won several victories in court already to get his money back, but also lost on some issues as well. Earlier this year, at a trial, a jury found in the government’s favor. But the developer is now appealing, and it looks as if this case is far from over, especially given how much money is on the line. Contact a Lawyer Law enforcement should never be able to confiscate your legally obtained property. If police or federal agents are holding a large amount of your money that was not connected to any crime, you need an attorney on your side who will put up a fight to get this money back for you. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. The Fourth Amendment of the Constitution protects U.S. citizens from unlawful search and seizure by law enforcement officers, but the definition of what exactly constitutes an illegal search has changed quite a bit in the past few decades. Perhaps no change has had greater ramifications on how the average person interacts with police than Terry stops.
What is a Terry Stop? Terry stops, also known as stop and frisks get their name from the 1968 U.S. Supreme Court case Terry v.Ohio. The case involved a police officer stopping and frisking two men he suspected of pickpocketing. The officer located concealed weapons on the men, and at trial they moved to suppress the evidence as illegally obtained. When the case reached the Supreme Court, the justices held that police may detain individuals who they have a reasonable suspicion are involved in criminal activity. The Court also held that police may pat down the outer garments of a suspect if there is a reasonable and articulable suspicion that the suspect is armed and dangerous. When is a Terry Stop Illegal? The first limitation on Terry stops is that police must have reasonable suspicion to initiate them. More often than not, however, it is questionable whether police in Illinois properly initiate Terry stops. The ACLU of Illinois found that in 2014 Chicago police stopped and likely frisked more than 250,000 people, but made no arrests and issued no citations from these stops. The second limitation on Terry stops is that police are not automatically entitled to go on a fishing expedition for contraband. If a weapon or drugs are obviously discovered in the course of a stop and frisk, this evidence is admissible in court, but police may not conduct a lengthy and intrusive pat down to search for these items. Police are limited to a pat down that would discover a weapon. Finally, while there is no set time limit on how long a Terry stop may last, with courts instead relying on a reasonableness standard, police are not authorized to engage in a Terry stop that lasts for hours upon hours. At some point the police must determine whether the stop has given them probable cause to make an arrest. If no probable cause exists, the suspect must be released. A Terry stop must meet all of these requirements in order to produce evidence that is admissible in court. If the stop is lacking in any of these ways, it may be grounds to dismiss the charges or have a conviction set aside on appeal. Need Legal Help? While the police are responsible for protecting the public, that never gives them the right to violate the civil rights of innocent civilians. If police inappropriately performed a Terry Stop on you or held you for an excessively long period of time in order to discover evidence against you, you may have a viable legal claim for to seek an appeal of your conviction. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. It’s long been settled that the government can force a defendant to turn over property associated with a crime, but in recent years prosecutors have tried to grab more and more property from defendants who have not been convicted of any crime. And often it hasn’t matter whether that property is associated with any crime either. If that sounds wrong to you, it’s rubbed many defense and appellate attorneys the wrong way too, and last week the U.S. Supreme Court put the brakes on the practice by holding that the state cannot order a defendant to forfeit money that has nothing to do with an alleged crime.
Luis v. United States and the Sixth Amendment Right to Counsel In Luis v. United States, the defendant was accused of running a massive $45 million scheme between her two companies to defraud Medicare. However, by the time an indictment was brought against her, she only had $2 million in assets. The government moved to freeze these assets as “"property of equivalent value.” A district judge granted this petition, effectively leaving the defendant destitute and unable to afford the attorney of her choice. The issue is that even the government admitted that the money it sought to freeze wasn’t directly connected to the alleged criminal activity. As the Sixth Amendment of the U.S. Constitution guarantees the right to counsel of the defendant’s choice, a plurality of Supreme Court justices took issue with the government’s action. By cutting off access to all funds for the defendant, she was unable to defend herself as she wished, with money that was legally obtained. The justices went out of their way to point out that this holding still doesn’t apply to assets connected to a crime. For example, the government still order the forfeiture of money believed to be taken in the course of a bank robbery, but the government cannot seize a bank account completely unconnected to any crime. The final vote of the Court was 5-3, with four justices backing one analysis of cases such as this, and the fifth justice writing in favor of a slightly different test. While this could lead to circuit splits down the line, the general law of the land is now that a court cannot freeze money that is unconnected to a crime, as it deprives a defendant of the counsel of his or her choice. Even though this case went through the federal courts, it also now applies to state criminal cases through the Fourteenth Amendment, so Illinois courts will be required to follow this precedent. Need Legal Help? Luis is now the law of the land, and makes it harder for prosecutors to seize money before a trial commences. This means you may now be eligible to have money returned to you while your case is pending, or you could possibly file an appeal of a previous order to forfeit assets to the state. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. The U.S. Constitution prohibits law enforcement officers from conducting unlawful searches and seizures, and a violation of your constitutional rights means that any evidence retrieved during that violation could be inadmissible at trial. This is called the exclusionary rule. Criminal defense attorneys can filed a motion to suppress evidence to ensure that unlawfully obtained evidence cannot be used against you at trial. In Illinois, if a defendant can show he or she was doing nothing to justify a warrantless search and seizure, a court should grant the motion to suppress evidence.
Common Grounds For Seeking a Motion to Suppress Evidence The most common reason for suppressing evidence is that police searched an individual or vehicle without a warrant or probable cause. In Illinois and across the United States, police must have probable cause in order to search a person without a warrant. Probable cause is based on an objective standard - the question is whether, under the totality of the circumstances, there is probable cause to believe that an individual has committed a crime or is otherwise in possession of contraband or other evidence? Absent an exception to the probable cause requirement, a court should grant the motion to suppress evidence. When a court grants a motion to suppress evidence, that evidence cannot be used as evidence at trial by the State. Without that oftentimes critical evidence, the prosecution will fail. Another reason an attorney might seek to suppress evidence is because the police fail to advise a suspect of his or her Miranda rights. Anyone who watches TV is probably familiar with Miranda rights. Once the police place you into custody - for example, when you are arrested - they must inform you of the following rights: that you have a right to remain silent; that anything you say can be used against you in court; that you have the right to have an attorney present during any questioning; and that if you cannot afford an attorney, one will be provided for you. Police sometimes fail to tell suspects about these rights at the appropriate time. If a suspect is not made aware of his rights prior to being questioned by the police, any confessions or other statements made should not admissible in court. In instances where police have little other evidence to go on besides a confession, a violation of the Miranda rule can result in a case being dismissed. Another reason why evidence might be suppressed is because there is an error in the chain of custody. If police confiscate a firearm or drugs from you, they are required to show that they have maintained proper care and control of it before trial to avoid any inference that the evidence was tampered with. This means that if you are charged with a drug crime, and the evidence seized by police gets lost or mislabeled while at a lab for testing, a court will almost certainly suppress the evidence because the chain of custody has been broken. Your Right to a Lawyer If you’re facing drug or weapons charges in Illinois, your freedom is at risk. You need an experienced criminal defense attorney on your side who can recognize the important legal issues in your case, such as whether there is a viable motion to suppress evidence that was obtained as a result of an illegal search or seizure. You have the right to the lawyer of your choosing. For more information, contact Barney & Hourihane for a consultation. The State of Illinois has joined 22 other states and the District of Columbia in allowing patients to use marijuana to treat certain medical conditions. However, the Illinois Medical Cannabis Pilot Program is subject to some of the strictest regulations in the country, and simply obtaining a prescription from a physician is not enough to avoid any legal issues.
Who May Obtain a Medical Marijuana Prescription? Patients must have an established relationship with a physician who prescribes medical cannabis, and the marijuana can only be prescribed to treat one of 39 conditions approved by the pilot program. These conditions currently include seizures, rheumatoid arthritis, glaucoma, HIV/AIDS, and cancer. Other conditions may be added to this list in the future. Finally, all prescriptions must be registered with the state and reviewed by the Illinois Medical Cannabis Pilot Program before a state medical marijuana card will be issued. Illinois Medical Marijuana May Still Land You in Legal Trouble Under Illinois law, it is illegal to smoke marijuana within close proximity of a child. The state’s medical marijuana laws do not make an exception in cases where the marijuana was prescribed for a physician, so even smoking legal medical cannabis in the presence of a minor may result in criminal charges and possible issues with the Department of Children and Family Services. The law, however, is silent, on ingesting marijuana in other forms, such as edibles or lotions, so it’s unclear how a court would rule in one of those cases. Furthermore, despite the quasi-legal status of marijuana in Illinois, it remains illegal at the federal level in any form. Even if you have a medical marijuana card issued by the state of Illinois, federal law enforcement officials may confiscate marijuana from you, and you could be subject to federal prosecution. Most federal cases involve large amounts of marijuana, however. Because marijuana is illegal under federal law, employers are also able to continue to drug test employees, and may fire them or subject them to other discipline in the event of a positive drug test. Finally, if you have been accepted into the Illinois Medical Cannabis Pilot Program, it is important to follow all of its regulations. Failure to do so may result in expulsion from the program and revocation of a medical marijuana card. In that event, you will have few legal protections if a police officer finds you to be in possession of marijuana. Need Legal Help? Navigating new laws, especially those involving medical marijuana, is a tricky proposition. While marijuana is legal to use for treatment of certain medical conditions, it is still heavily regulated, and violation of those regulations could still result in criminal prosecution. That’s why it’s so important to contact an experienced Chicago criminal defense attorney if you or a loved one have been charged with a crime involving medical marijuana or other drugs in the Chicago area. 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. If Police Have Probable Cause, Calling for A Narcotics Dog Doesn’t Violate the Fourth Amendment2/22/2016
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. |
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