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Criminal Nuggets

This is what truly efficient legal learning looks like. Samuel Partida, Jr. has a way of turning dry, criminal court decisions into understandable bits of valuable knowledge. The nuggets of information just plop out of the cases. Sam has a knack of focusing on the choices made by the people, the lawyers and the judges in the cases. Under this kind of learning regime, the lessons just naturally fall out of the discussion. Anyone with a desire to learn the criminal law in a fundamental way will find a home here. Staying current with the case law has never been this easy, nor this fun.

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Scott’s Law In Illinois 625 ILCS 5/11-907(c)

Scott’s Law in Illinois is the requirement that drivers slow down and move over when police cars or other emergency vehicles are stopped on the roadway. Scott’s Law Basically Says… Scott’s law requires that a driver proceed cautiously when an emergency vehicle is stopped and Move over and change lanes and/or Slow down if changing lanes is impossible. The law imposes enhanced penalties, a possible driver license suspension, and even jail time for severe violations. 625 ILCS 5/11-907(c) The exact language of the section provides that: “(c) Upon approaching a stationary authorized emergency vehicle, when the authorized emergency vehicle is giving a signal by displaying alternately flashing red, red and white, blue, or red and blue lights or amber or yellow warning lights, a person who drives an approaching vehicle shall: (1) proceeding with due caution, yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to safety and traffic conditions, if on a highway having at least 4 lanes with not less than 2 lanes proceeding in the same direction as the approaching vehicle; or (2) if changing lanes would be impossible or unsafe, proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions and leaving a safe distance until safely past the stationary vehicles.” 625 ILCS 5/11-907(c). Scott’s Law Fines Maximum fines for a violation of Scott’s Law can be up to $10,000. The chart below outlines the minimum fine that is applicable: Minimum $250 up to $10,000 For 1st offense Minimum $750 up to $10,000 For 2nd or more offense 625 ILCS 5/11-907(d). Suspension Of Drivers License Under Scott’s Law A violation of Scott’s Law is considered a moving violation in Illinois. That means the secretary of state will assign points against your driving record and a discretionary suspension under 625 ILCS 5/6-206 may be incurred. However, the chart below describes certain mandatory suspensions under Scott’s Law if there are aggravated circumstances: 90 days to 1 year If there is property damage 180 days to 2 year If there is personal injury 2 year suspension If there is a death to a person 625 ILCS 5/11-907(e), (f), (g). Jail Time For A Scott’s Law Violation An ordinary violation of Scott’s Law in Illinois is considered a business offense. That means it is punishable by fine only. However, Scott’s Law may classified as a crime and a person may face jail time under the conditions listed below: Class A Misdemeanor If there is damage to anther vehicle Class 4 Felony If there is injury or death to another person 625 ILCS 5/11-907(d) Class A MisdemeanorClass 4 Felony. Links & Resources Illinois Vehicle Code on Right-Of Ways Scott’s Law In Illinois Illinois Vehicle Code On Approaching Disabled Vehicles Illinois Vehicle Code On Construction Zones Attorney Peter Wachowski Discusses Defending Against A Scott’s Law Ticket Episode 751 (Duration 13:45) Illinois attorney Peter Wachowski explains some of the intricacies of defending against a charge under Scott’s Law. In This Episode… “That’s the speed limit! You’re suppose to slow down.” — Peter Wachowski Going to trial against a charge of violating Scott’s Law can get kind of tricky. In this episode an experienced trial attorney describes the process. Attorney Peter Wachowski Attorney Peter Wachowski has an active civil law practice focussing on Personal Injury, Worker’s Compensation and Civil Litigation. However, Peter also is highly experienced in DUI litigation and defense and represents clients in other criminal law matters. Contact Information 15 N. Northwest Hwy Park Ridge, IL 60068 peter@bellas-wachowski.com www.bellas-wachowski.com “Can’t Miss” Moments: ✓ The “move over” law says you must do one of two things or both when you see an emergency vehicle stopped on the roadway. Not doing these things can lead to pretty serious consequences. (Go to 2:15) ✓ Scott Gillen was a Chicago Fire Department Lieutenant who died in the line of duty two days before Christmas in 2000 when a drunk driver collided with vehicles assisting at a crash scene on the Dan Ryan Expressway. (Go to 3:29) ✓ “The official day of remembrance of him is December 23rd.” — Peter Wachowski (Go to 3:50) ✓ Peter learned some valuable lessons in defending against an allegation of violating Scott’s Law. You don’t want miss what Peter has learned from court trials on this charge. (Go to 6:07) ✓A great example of when going the speed limit can get you in big trouble. (Go to 7:53) ✓ Judge’s don’t like these things. You should expect the judge to do you no favors if you’re accused of violating Scott’s Law. (Go to 10:02)


18 Mar 2020

Rank #1

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In 2020 Can Police Search Your Car If They Smell Marijuana?

After Illinois passed the Cannabis Regulation and Tax Act which became effective in 2020, can police still search a car when they smell cannabis? The Old “Smell Of Weed Rule” In Illinois Before Decriminalization Of 2020 The warrantless search of a car is authorized “where a trained and experienced police officer detects the odor of cannabis emanating from a defendant’s vehicle.” People v. Stout, 106 Ill.2d 77, 88 (1985) The question today, is if this rule survived the cannabis law change in 2020. In This Episode… “The officer would probably be better suited to try and find more information, more probable cause, to layer that probable cause.” — John “Jack” Duggan Attorney John Duggan Jack’s father is a retired Chicago Police Officer. Jack followed in his father’s footsteps and became a Police Officer for the Village of Oak Park. While working as a Police Officer, Jack decided to continue his studies and attended The John Marshall Law School.  Jack focuses his practice in the areas of Real Estate, Family Law, Estate Planning, and selected criminal matters. Jack Duggan’s Contact Information 782 Busse Highway Park Ridge, IL 60068 john@johnmdugganlaw.com http://www.johnmdugganlaw.com/ Attorney Jeff Hall “I basically call it the ‘sniff and search’ statute.” — Jeff Hall “I basically call it the ‘sniff and search’ statute.” – Jeff Hall Jeffrey R. Hall has practiced law since 2004, concentrating in the area of Criminal Law, DUI, Traffic Law, Driver’s License & FOID Card Reinstatement’s.  He began his legal career as an Assistant State’s Attorney in Tazewell County, IL. Jeff Hall helped draft SB228 (passed on July 29, 2016), the popular Cannabis Decriminalization Bill and was an integral part of the legislative process, changing Illinois law from a “Zero Tolerance” state for cannabis related DUIs, to a more reasonable law that focused more on impaired driving. Jeff Hall’s Contact Information 316 SW Washington Street, Suite 1A Peoria, IL 61602 jhall@hallrustomfritz.com http://www.centralillinoislawyers.com/ Links & Resources Cannabis Regulation and Tax Act Cannabis Control Act Illinois Vehicle Code The Sniff & Search Law – 625 ILCS 5/11-502.15 What The Illinois Cannabis Regulation And Tax Act Says About Lawful Limits? 410 ILCS 705/10-10. Possession Limit. “(a) Except if otherwise authorized by this Act, for a person who is 21 years of age or older and a resident of this State, the possession limit is as follows: (1) 30 grams of cannabis flower; (2) no more than 500 milligrams of THC contained in cannabis-infused product; (3) 5 grams of cannabis concentrate; and (4) for registered qualifying patients…” Strict Prohibition of Cannabis Possession For Those Under 21 410 ILCS 705/10-15. Persons under 21 years of age. “(b) Notwithstanding any other provisions of law authorizing the possession of medical cannabis, nothing in this Act authorizes a person who is under 21 years of age to possess cannabis. A person under 21 years of age with cannabis in his or her possession is guilty of a civil law violation as outlined in paragraph (a) of Section 4 of the Cannabis Control Act. (c) If the person under the age of 21 was in a motor vehicle at the time of the offense, the Secretary of State may suspend or revoke the driving privileges of any person for a violation of this Section under Section 6-206 of the Illinois Vehicle Code and the rules adopted under it.” Further Limitations And Prohibition Of Cannabis In Certain Places 410 ILCS 705/1-35. Limitations and penalties. “a) This Act does not permit any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, any of the following conduct… (2) possessing cannabis: (D) in a vehicle not open to the public unless the cannabis is in a reasonably secured sealed, container and reasonably inaccessible while the vehicle is moving; or… (3) using cannabis: (D) in any motor vehicle; (F)…in any public place; or (G) knowingly in close physical proximity to anyone under 21 years of age who is not a registered medical cannabis patient under the Compassionate Use of Medical Cannabis Program Act… 4) smoking cannabis in any place where smoking is prohibited under the Smoke Free Illinois Act;” The Cannabis Control Act Still Criminalizes Possession Of The Following Amounts Of Cannabis… 720 ILCS 550/4. Cannabis Control Act. “Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to possess cannabis. Any person who violates this Section with respect to: (c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a Class A misdemeanor; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony; (d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 4 felony; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 3 felony; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 2 felony; (g) more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony.” Delivery And Possession With Intent To Deliver Cannabis Remains Illegal 720 ILCS 550/5. Cannabis Control Act. “Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this Section with respect to: (a) not more than 2.5 grams of any substance containing cannabis is guilty of a Class B misdemeanor; (b) more than 2.5 grams but not more than 10 grams of any substance containing cannabis is guilty of a Class A misdemeanor; (c) more than 10 grams but not more than 30 grams of any substance containing cannabis is guilty of a Class 4 felony; (d) more than 30 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 3 felony for which a fine not to exceed $50,000 may be imposed; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 2 felony for which a fine not to exceed $100,000 may be imposed; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony for which a fine not to exceed $150,000 may be imposed; The Illinois Vehicle Code Still Criminalizes Cannabis Related DUI’s 625 ILCS 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof. “(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving; (7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrahydrocannabinol concentration in the person’s whole blood or other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph (7) does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis.” The “Sniff & Search” Law – 625 ILCS 5/11-501.15 625 ILCS 5/11-502.15. Possession of adult use cannabis in a motor vehicle. “(a) No driver may use cannabis within the passenger area of any motor vehicle upon a highway in this State. (b) No driver may possess cannabis within any area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (c) No passenger may possess cannabis within any passenger area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (d) Any person who knowingly violates subsection (a), (b), or (c) of this Section commits a Class A misdemeanor. “Can’t Miss” Moments From Episode 745 ✓ An officer who encounters the odor of cannabis in a car might have to start running through a mental checklist. What are the things they should be checking-off? (Go to 4:46) ✓ Legitimate law enforcement objectives are implicated by the smell of weed. After Illinois has decriminalized marijuana what legitimate law enforcement concerns remain on the table? (Go to 5:42) ✓ There is at least one situation where a car reeking of cannabis is going to get searched by the police. Jump to this spot to find out what that situation is. (Go to 7:50) ✓ What does a positive drug dog sniff mean now that some cannabis can be possessed legally? (Go to 11:50) ✓ How does the plain view doctrine affect this question? What have other legalized states done with this question of allowing officers to search car based on the smell of cannabis? (Go to 22:01) ✓ How a “sealed, odor-proof, child-resistant cannabis container” can be the difference between wide spread car searches in Illinois and/or very limited ones. (Go to 24:50) ✓ Urban Dictionary defines “hotboxing” as, “n. The practice of smoking marijuana in an enclosed space (e.g. a car or a small room) in order to maximize the narcotic effect.” (Go to 34:20) See Also You may also want to check out… People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36) (odor of cannabis indicative of criminal activity) Episode 556 – Interview With Charles Schierer | The Best Reason To Change The “Smell Of Cannabis” Rule Episode 509 – In re O.S., 2018 IL App (1st) 171765 (June) (1st District also says smell of weed rule is still valid)  Episode 584 – People v. Hill, 2019 IL App (4th) 180041 (January) (4th District says the same thing adding burnt or raw cannabis doesn’t matter that car is getting searched)  Episode 621 – People v. Brandt, 2019 IL App (4th) 180219 (April) (officer smelled cannabis and that justified the warrant)  Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant Episode 558 – People v. Williams, 2018 IL App (2d) 160683 (October)(odor of alcohol alone means nothing) Episode 015 – People v. Abdur-Rhamim, 2014 IL App (3d) 130558 (August) (Police Can Search A Car In Illinois If The Smell Marijuana, So What Went Wrong Here For The Police?) Episode 276 – You Just Can’t Ignore The Stench Of Weed In An Auto Accident Episode 207 – With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law Episode 251 – With Jeffrey Hall –  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law Episode 196 – Dog Sniff Alert To Drugs Will Lead To Car Search


4 Mar 2020

Rank #2

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Chicago Police Body Cam Discovery With Peter Lewis: What To Do When You Don't Get It

Episode 724 (Duration 33:57). Chicago defense attorney Peter Lewis explains what a litigant can do when their criminal discovery is missing the police body cam video. In This Case... The State's Attorney's position is if they didn't get it from the police then it doesn't exist. Attorney Peter Lewis Am I Entitled To Have The Police Body Cam In My Case? Yes. Generally, speaking a criminal defendant is going to be entitled to possess a copy of the police body cam or cams involved in his or her case. The interesting question is what to do when you don't get it. Attorney Peter Lewis Peter Lewis has been an Illinois attorney since 2004. He currently has an extensive criminal law practice. He handles cases throughout Cook County and the collar counties. Contact Information 5508 West Lawrence Ave Chicago, IL 60630 773-853-0223 http://pwlewislaw.com/ Main Areas Of Law  In Chicago what are the three main areas of law that govern the police use of body cameras? United States Department of Justice & Chicago Police Department Consent Decree Illinois Law Enforcement Officer-Worn Body Camera Act Chicago Police Department Special Order S03-14 on Body Worn Cameras What Does The Consent Decree Say About Body Cam? What does the Justice Department's Chicago Police Department Consent Decree say about the use of police body cams? On page 6 of the report it says, ...that the Justice Department supports the City’s decision to accelerate its plan to ensure that all CPD officers have body cameras. In the "Recommendations" section of the report, it says that CPD should "adopt use of force practices that minimize the use of fore." Subsection (i) states, Equip all patrol officers and supervisors, and officers who regularly interact with the public, including tactical officers, with body cameras, and develop a body camera policy delineating officers’ responsibilities regarding the consistent and appropriate use of body cameras and the retention and review of body camera footage. Consent Decree Important Details From The Illinois Body Cam Act ✓ The Illinois Law Enforcement Officer-Worn Body Camera Act does not require that police departments employ body cams. The act merely provides guideline for departments that wish to use them. The act also includes minimal feature and procedures that must be followed if a department chooses to use body cams. (Go to 4:04) ✓ "No officer may hinder or prohibit any person, not a law enforcement officer, from recording a law enforcement officer in the performance of his or her duties in a pubic place or when the officer has no reasonable expectation of privacy." 50 ILCS 706/10-20(11) ✓ Generally, body cam videos ARE NOT subject to FOIA requests unless you have been arrested, are a victim, or a witness. See 50 ILCS 706/10-20(b) Did You Know? ✓ As of right now every single Chicago Police Department patrol officer is suppose to be using a fully functioning and operable body cam device. (Go to 2:59) What You Need To Know About The Chicago Police Department Body Cam Special Order The policy says in clear unmistakable terms that, All sworn members and their immediate supervisors assigned to a Bureau of Patrol district normally assigned to field duties and any other member at the discretion of the district commander will be assigned and utilize a BWC. CPD Special Order S03-14 This is one of the most important things listed in Special Order S03-14, it's under the "Operational Procedures" section. (Go to 6:20) An attorney trying to hunt down body cam footage may want to know the following to help facilitate the search (Go to 10:08): Name of person arrested Date of arrest RD number Incident number Name of officers involved Badge number of officers involved Beat Number ✓ CPD currently has 8,200 video cams issued to officers. This should be enough to cover the entire patrol division. (Go to 14:50) "Can't Miss" Moments: ✓ In video recordings you often see an officer stop and do this with his equipment right before he engages with a subject. (Go to 7:01) ✓ Body cam equipment involves more than a camera. The devices includes a camera and hard drive that can hold at least 10 hour of video. At the end of a shift all the recordings go into one master super data base. (Go to 8:04) ✓ Peter says CPD should not be allowed to do this one critical thing in regards to this body cam issue. A third independent body should involved and do this when there is an arrest. (Go to 9:16) ✓ You ever hear of a beat number and RD number? You may want to know what these are if you're hunting down body cam recordings. Peter Lewis explains this, just (Go to 9:16). ✓ This one fact provides the state with zero motivation to hunt and search for something that might exist but is buried somewhere. (Go to 12:25) ✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? (Go to 14:16) ✓ These particular police units come into a lot of contact with the public. You could say they're in the thick of it. Oddly, these units don't wear body cams. What's that all about? (Go to 14:50) What Do You Do When You Don't Get Police Body Cam In Your Discovery? ✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? (Go to 14:16) ✓ A Kladis motion is often filed when there has been a violation of discovery. This remedy is rare, but it can lead to the suppression of evidence. (Go to 18:30) ✓ Peter's discovery violation motion is titled, "Motion To Exclude Testimony of State's Witnesses And For Other Relief Or Sanction The Court Deems Appropriate". It incorporates parts of the state statute and the CPD special order. (Go to 19:00) If a court or other finder of fact finds by a preponderance of the evidence that a recording was intentionally not captured, destroyed, altered, or intermittently captured in violation of this Act, then the court or other finder of fact shall consider or be instructed to consider that violation in weighing the evidence, unless the State provides a reasonable justification. 50 ILCS 706/10-30 ✓ The State statute is kind of soft. It doesn't exactly say that evidence can be barred or excluded. (Go to 22:36) ✓ This is a last ditch effort thing to do when you see that a judge is not going to give you sanctions for missing body cam video. Do this when you got no other cards to play. (Go to 25:50) Links & Resources United States Department of Justice & Chicago Police Department Consent Decree More About The CPD Consent Decree 50 ILCS 706/10-1 et seq. - Illinois Law Enforcement Officer-Worn Body Camera Act Chicago Police Department Special Order S03-14 on Body Worn Cameras People v. Kladis, 2011 IL 110920 How Often Do Chicago Police Officers Fail To Activate Their Body Cameras? It’s Hard To Know - CBS Chicago Key Body Camera Footage Missing After Chicago Police Officers Raid Wrong Homes, Point Guns At Children - CBS Chicago See Also You may also want to check out... People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02) (What To Do, What To Do About Lost, Destroyed, or Missing Video?) People v. Cunningham, 2018 IL App (1st) 153367 (June). Episode 517 (Duration 12:37) (Significance Of The Evidence And Bad Faith Drive Discovery Violation And Destruction Of Evidence Issues) People v. Moravec, 2015 IL App (1st) 133869 (November 2015). Episode 105 (Duration 8:00) (Defendant wins sanctions to exclude all evidence after CPD ignores repeated requests for the POD video.) Episode 320 (Duration 52:38) (Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA)


8 Jan 2020

Rank #3

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Illinois v. Caballes: The Police Drug Dog Sniffer Case

Illinois v. Caballes, 543 U.S. 405 (2005). SCOTIS Notice (Duration 1:43) This is the SCOTUS case that set the framework for the use of drug dogs in the United States. [insert mp3 player] This opinion normalized the use of drug dogs by police departments during traffic stops. The case concluded that police don't need a warrant when they walk a drug dog around a car during a traffic stop. Issue Do police need a warrant to use a drug dog to sniff a car during a traffic stop? Facts Driver was stopped and ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes. He was sentenced to 12 years. Analysis A privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband. There is no right to privacy that protects illegal smells. Holding Conviction was affirmed because there was no 4th amendment violation. Related Cases Florida v. Jardines, 133 S.Ct. 1409 (2013) (drug dog brought to front stoop of a house) Florida v. Harris, 133 S.Ct. 1050 (2013) (drug dog reliability is determined by a totality of the circumstances) Rodriquez v. United States, 135 S. Ct. 1609 (2015) (any delay during a traffic stop to give the dog time to arrive is unreasonable) [insert video] Key Facts In Illinois v. Caballes Key facts in the case include ... Defendant’s car stopped He’s ticketed for speeding During stop canine unit appeared Sniff dog handler walks the dog around car Drug dog alerts on the trunk Car searched Cannabis discovered Convicted for trafficking cannabis Everything happened in under 10 minutes The case began as a traffic stop for speeding. The car was stopped and driver ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes. Key Finding  Key findings from the court: Police Dog Drug Sniffs are Not Searches Practical Limits Remain Not That Many K-9 Units Police Can Not Cause an Undue Delay The case worked its way up to the United States Supreme Court, where the Court’s central finding was that: “That any interest in possessing contraband cannot be deemed legitimate, ‘and thus, governmental conduct that only reveals the possession of contraband’ compromises no legitimate privacy interest.” Quoting United States v. Place, 462 U. S. 696 (1983). You don’t have a privacy interest in illegal smells. The Aftermath of Illinois v. Caballes This case threatened to blow this issue wide open in favor of the police and the use of drug dogs. The central finding that a police dog sniff was not a search meant the use of drug dogs could perhaps be expanded to other areas besides a traffic stop. The gist of the ruling is that a privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband. “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”Caballes, 543 U.S. 405 (2005). So if a sniff is not a search police can probably do more of them without running afoul of the 4th amendment. There Are Still Limitations Yet, even Caballes recognized limits on the use of police dogs during a traffic stop. Beginning with Caballes itself, we can see that fundamental limits on the use of sniffer dogs during traffic stops were built right into the system. The Court approvingly noted that the police officers detaining Caballes did not delay the traffic stop just so that the drug dog could finish the sniffing. This is important. Had the Court found undue delay, the clear inference is that the case would have come out differently. This is what the court is talking about when it mentions a “prolonged” traffic stop. The Court wrote that: “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Caballes, 543 U.S. 405 (2005). If the police try to slow down the interaction with the driver so that the police dog has time to make it to the scene of a traffic stop, that would be illegal. Similarly, delaying the writing of the ticket or returning a driver’s license so slowly that the dog has time to finish the sniff is unconstitutional. This may also be referred to as going “outside the scope” of the traffic stop. This “no delay” or “scope” rule serves as a real and practical limitation on the use of police dogs. Any Undue Delay is Unconstitutional The simple fact is that K-9 units are far less numerous than normal patrol vehicles. This specialized team is typically only called out on special assignments. The practicality of having a drug dog at every traffic stop is impossible. The criminal defense bar, however, has to be vigilant about recognizing stone walling by the police. Any proof of an unconstitutional delay must be brought to the trial court’s attention in a motion to suppress evidence illegally seized.


8 Nov 2019

Rank #4

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What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview

People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58) What's the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it's like working in the criminal law. Subscribe: Apple Podcasts | Google Podcasts | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Illinois attorney Alan Downen walks us through the detailed intricacies of just one issue in criminal litigation: In This Episode... "There's an old saying about losing your 'tall'. 'Tall' is your favorite marble." -- Alan Downen. Illinois Attorney Alan Downen Alan Downen has been a member of the Illinois bar since 1974. He's a solo practitioner concentrating his practice in the areas of criminal, DUI, traffic law. His office is in McLeansboro, Illinois. "Can't Miss" Moments: ✓ Here's an example of the kind of fatally flawed or legally insufficient charging document we are talking about: A defendant charged with aggravated domestic battery is charged by information. However, the information is missing the mental state. It doesn't state if defendant acted "knowingly" or "intentionally". It also omits the type of battery the defendant is alleged to have done. It doesn't say if he caused bodily harm or committed insulting or provoking contact. (Go to 3:35) ✓ What's the law now? What does a court do when it's confronted with a legally insufficient complaint? Well it depends. There are two legal standards. If a motion to dismiss is filed pretrial the court will adopt a "strict construction" policy and automatically dismiss the charges without prejudice. That means the state is free to refile. If the motion to dismiss if filed on appeal or after the trial is over then a defendant must show prejudice to get the charges dismissed. (Go to 5:07) ✓ Some defense attorneys say they don't the prosecution a darn thing. There's nothing wrong with lying in the weeds and springing the issue on the state when the time is right. (Go to 6:40) ✓ Why some judges really hate a motion to dismiss, and why they'll accuse you of "sandbagging" and other dastardly legal things.  (Go to 7:16) & (Go to 15:40) ✓ "Like any attorney, if the judge asks you a question and you answer like this, 'Yea - I'm ready to go' when you know that there's a problem. That's kinda troublesome to me as an attorney...But that's kinda the scenario." (Go to 8:42) ✓ The problem with informing the state they have a bad charge. (Go to 9:20) ✓ Why it better to save your motion to dismiss until after the trial has started. Sure, you have to show prejudice but a few cases demonstrate that can be done.  (Go to 9:51) ✓ The thing about the Rowell case is that it really highlights how a defense attorney can go about demonstrating the prejudice that results to an accused with a fatally flawed charging document is filed against them.  This is the "bible" on insufficient charging instruments. (Go to 11:49) ✓ Talk about getting caught in court with your pants down. This might be every prosecutor's worst nightmare.  (Go to 11:20) ✓ The number one lesson for prosecutors about this discussion is this. Some of them will do it. Many more won't and that's exactly why criminal defense can be so fun sometimes.  (Go to 13:55) ✓ Why defense attorneys sometimes win by filing "the wrong" motion against all precedent and contrary to clearly applicable laws, and why judges are quick to grant you these "meritless" motions. (Go to 17:49) ✓ "You have a duty to the court as a lawyer to be honest and forthright. But you also have a duty to your client. Sometimes, as you say, the lines are just real clear." (Go to 22:29) ✓ What an older attorney told Alan about the practice of law. Why sometimes it's best to do nothing even when you know something can be done. (Go to 24:25) Links & Resources 725 ILCS 5/11-3(a)(3) states that In Illinois "a charge shall be in writing and allege the commission of an offense by: Setting forth the nature and elements of the offense charged;" People v. Rowell, 229 Ill. 2nd 82 (May 2008) (Illinois Supreme Court finds prejudice to the defense from a fatally flawed charging document.) People v. Pendleton, 2017 IL App (3d) 140814-U (March) (trial court erred in denying defendant’s midtrial motion to dismiss because defendant was prejudiced by the insufficient charges) See Also You may also want to check out... Episode 419 - People v. Sheley, 2017 IL App (3d) 140659 (October) (concurring opinions discussing "sandbagging" and why it's a disfavored practice) Episode 399 - People v. Frazier, 2107 IL App(5th) 140493 (July) (defense attorney accused of being ineffective for filing the motion to dismiss after the trial had started) Episode 249 - People v. Swift, 2016 IL App (3d) 140604 (October) (because defendant waited until the trial to begin he had to show prejudice to win a dismissal)


8 Oct 2019

Rank #5