September 20, 2012
Driving Under the Influence (DUI) charges reduced to reckless driving at Markham Courthouse.
Illinois Drug Forfeiture Law-Chicago Criminal Attorney
June 24, 2012
If the government is seeking forfeiture of your property, an experienced criminal attorney can fight for the return of your money and property in court by filing a claim.
The Illinois General Assembly passed the Drug Asset Forfeiture Procedure Act (725 ILCS 150/2) to establish uniform procedures for the seizure and forfeiture of drug-related assets.
The Forfeiture Act is based on the federal civil forfeiture statute, the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. §881 et seq. (2000)). To begin judicial forfeiture proceedings, the State must file a complaint. The Act simply requires that after a review of the facts surrounding the seizure, the State’s Attorney must be of the opinion that the seized property is subject to forfeiture. The complaint must allege facts that provide reasonable grounds for the belief that a nexus, or connection, exists between the currency or property and illegal drug activity. A complaint is insufficient if it merely alleges suspicions of law enforcement that amount to drug-carrier profiling. A forfeiture complaint must identify the misconduct giving rise to the forfeiture. For example, in an Illinois supreme court case, the court held that a complaint failed to state a cause of action for forfeiture in alleging that police discovered the cash in the search of a van and that the currency was furnished or intended to be furnished in exchange for drugs, or was the proceeds of drug dealing. In that case, the supreme court concluded that the complaint did not provide adequate facts that connected the currency found in the van to narcotics. The supreme court noted that the State’s naked allegation that the seized currency is drug-related does not reasonably inform an owner of the nature of the evidence that will be presented. An aggressive criminal lawyer can file a Motion to Dismiss the State’s complaint if it lacks reasonable grounds for the belief that the property is tied to drugs or marijuana.
The State carries the initial burden of demonstrating probable cause for the forfeiture of the real
property or money recovered from illegal drug activities. When a complaint has passed the pleading stage, the State must establish whether probable cause exists for the forfeiture of property such as a house or vehicle that is believed to have been purchased with drug proceeds, an analysis that depends on the totality of the circumstances. A skilled criminal lawyer can show that probable cause is lacking through effective cross-examination of the State’s witnesses, usually police officers. Although the State is not required to tie the property seized to a specific drug transaction, a suspicion of general criminal activity is not enough; the government must have probable cause to believe that the property is connected specifically to drug activities. Accordingly, the discovery of a large sum of cash alone is insufficient to establish probable cause. For example, in a case involving the seizure of currency from an individual’s person or baggage, the factors weighed in the “totality of the circumstances” analysis include: (1) the positive alert of a drug-sniffing dog; (2) the individual’s inconsistent or false explanations about the source of the funds recovered and the reasons for travel; (3) the originating and destination cities of travel; (4) inconsistencies in the individual’s responses when asked about his or her travel; and (5) the payment of cash for travel and the timing of the purchase of tickets. The first two factors are the most important. The right criminal lawyer can use those factors to the advantage of the rightful owner of the property.
At trial, the government must prove the property is forfeitable. If the government meets its burden, the claimant/owner must then prove, by a preponderance of the evidence, that the property is not subject to forfeiture. Being represented by a criminal lawyer well-versed in forfeiture law will help you recover what is yours. If the State is seeking forfeiture of your money or property, contact John McNamara.
SPEEDY TRIAL DEMAND: Criminal lawyer demands speedy trial.
June 11, 2012
Illinois law provides that every person on bail or a personal recognizance bond (also known as an “I bond”) shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant. The defendant’s failure to appear for any court date set by the court operates to waive the defendant’s demand for trial made under this subsection.” 725 ILCS 5/103-5(b). This issue was recently clarified in People v. Kohler, 2012 IL App (2d) 100513 (No. 2-10-0513, 4/12/12) a case involving a defendant who appeared at a bond hearing after he was arrested on a warrant issued due to his failure to appear at a court date. The court ordered defendant released from custody on a personal recognizance bond and his Illinois criminal attorney filed a demand for speedy trial. The Court held that defendant’s speedy-trial demand on the date of the bond hearing was not premature on the theory that he was in custody at the time at the time that the demand was made by his criminal lawyer. Unlike People v. Garrett, 136 Ill. 2d 318, 555 N.E.2d 1136 (1990), where the court concluded that a speedy-trial demand made about two months before defendant’s release from custody did not serve to commence the 160-day statutory term for a defendant released on bail or recognizance, defendant’s demand was made on the same day as his release. Once the court ordered that the defendant be released on recognizance, he was restored to liberty, the only remaining restriction on his liberty being that he attend court hearings.
In the Kohler case, the defendant’s criminal attorney properly served the speedy-trial demand on the assistant State’s Attorney who appeared at the bond hearing, even though the arresting officer designated the Village of Long Grove as the charging entity on the citation and the Village attorney ultimately prosecuted the case.
The defendant’s absence from a subsequent court date due to his illness was not a failure to appear that waived his speedy-trial demand under the statute. Although defendant was not personally present, his criminal lawyer appeared for him and explained defendant’s inability to attend the hearing due to illness. The prosecutor had been informed that defendant was ill and the court granted the motion for continuance without any objection from the prosecution. The defendant’s absence did not result in the issuance of a bond-forfeiture warrant. This was not a failure to appear, but an absence and the grant of a motion to continue, which was a delay attributable to the defendant, but not a waiver of his demand. The Appellate Court also noted the inconsistency in the prosecution’s argument that the absence due to illness amounted to a waiver of the speedy trial demand, while ignoring defendant’s absence on another court date at which the court had waived his appearance, although the trial court had treated both absences in the same manner. Because the trial court erred in denying defendant’s motion to dismiss on statutory speedy-trial grounds, the Appellate Court vacated defendant’s convictions.
To fight your case on similar grounds, contact John McNamara today.
Fighting Use of Other Crimes Evidence; Cook County, Chicago, IL
March 30, 2012
In some cases, the State will seek to introduce other crimes evidence in an effort to show a defendant’s propensity to commit crimes. Evidence of other crimes is not admissible for that purpose because evidence of other crimes can over-persuade the jury, which may convict a defendant based on its belief that the defendant is of bad character and deserves punishment. People v. Lindgren, 79 Ill..2d 129, 137 (1980). Admission of such other crimes evidence invites an impermissible inference that because a defendant has convictions from a decade ago, he is more likely to have committed this crime. Our courts have long recognized that jurors tend to find propensity evidence overly persuasive and give it too much weight, prompting them to prejudge defendants based on their generally bad records. Michelson v. U.S. 335 U.S. 469, 476 (1948); Lindgren at 137. As the Michelson Court explained: in “practical experience, disallowance of propensity evidence tends to prevent confusion of issues, unfair surprise and undue prejudice.” The risk of misleading or over-persuading the jury is dangerous for the defendant. The real possibility that the jury would convict a defendant, based on his alleged prior bad acts alone, requires that an aggressive defense attorney fight any attempt by the state to introduce such evidence.
The probative value of the other crimes evidence is outweighed by its prejudicial effect requiring courts to exclude such evidence. People v. Illgen, 145 Ill. 2d 353, 364, 365 (1991). The Court must weigh the probative value of other crimes against its prejudicial effect. Id. Prejudice means “an undue tendency to suggest decision on an improper basis, commonly an emotional one, such as sympathy, hatred, contempt, or horror.” People v. Lewis, 165 Ill.2d 305, 329 (1995). When the Court weighs probative value against prejudicial effect, it must take into account the proximity in time to the charged offense, the degree of factual similarity to the charged offense and other relevant factors. The potential for prejudice is readily apparent if there is a lack of significant factual similarities between the incidents. The Illgen court stated that it is the similarity which increases the relevance of the evidence and ensures that it is not being used solely to establish the defendant’s criminal propensities. Illgen at 372,373. Further, there must be a high degree of identity between the facts of the crime charged and the other offense sharing distinctive common features so as to earmark both acts as the handiwork of the same person. Id. Often, the state bases its motion on such broad generalities that admissibility should be precluded. The potential for prejudice is readily apparent if there is no commonality between the victims and the incidents lack even a threshold similarity.
Also, other crimes evidence is often too remote in time to be admissible. Although Illinois courts have allowed evidence of other crimes to be used despite a substantial lapse of time, the evidence was admissible in those cases only to show the common plan, scheme and design of the defendant, to confirm the defendant’s identification and to demonstrate a lack of conspiracy by the victims. People v. Davis, 260 Ill. App. 3d 176, 191,192 (2nd Dist. 1994). Proper application of the balancing test firmly establishes the serious risk of undue prejudice to a defendant which would result from the admission of other crimes evidence.
If these issues apply to your situation, contact John McNamara for help.
Chicago Police Disciplinary Reports; Office of Professional Standards (OPS); Independent Police Review Authority (IPRA)
March 30, 2012
Often times a defendant seeks to show that an officer is biased against him by subpoenaing disciplinary records for that officer. The prosecutor or city attorney will often times object and seek to quash the subpoena based on relevance. The judge typically decides whether the evidence is relevant through an in camera inspection of the materials, wherein the judge reviews the materials to determine whether the defense is entitled to receive them.
Often time, the defendant’s theory is that the arresting officer has, for several years, engaged in harassment, unlawful searches and seizures, false arrests, fabrication of evidence, and physical abuse of arrestees, including defendant. The argument is that the police officer’s testimony is unbelievable due to his bias, interest and/or motive to testify.
It is well established the widest latitude allowable should be given to a defendant on cross-examination. People v. Barr; People v. Naujokas, 25 Ill.2d 32, 182 N.E.2d 700 (1962). Defendant’s right to confront witnesses against him, including cross-examination for the purpose of showing any interest, bias, prejudice or motive to testify falsely is guaranteed by both the federal and state constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I. The trial court has no discretionary power to deny the defendant the right to cross-examine the witness to show interest, bias, or motive. People v. Thompson; People v. Kellas, 72 Il. App.3d 445, 389 N.E. 2d 1382 (1977). The bias of the arresting officers against defendant can be evidenced by pattern of harassment and false arrests engaged in by the officers. Race can also be a factor where an officer is prejudiced against members of defendant’s ethnic group.
The exposure of hostile motivation of a witness in testifying is a proper and important function of the constitutionally protected right of cross-examination. Davis v. Alaska, 415 U.S. 308 (1974). Such cross examination may concern any matter that goes to explain, modify, discredit, or destroy the testimony of the witness. People v. Aughinbaugh, 36 Ill.2d 320, 223 N.E. 2d 117 (1964). The jury is entitled to the details of the theory of defense so it can make an informed judgment, and thus the right to cross-examine is satisfied when counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis, 415 U.S. at 318.
A defendant’s opportunity to cross-examine the biases and motives of the arresting officer should not be limited. Limitation of a defendant’s cross-examination of the bias or motive of a witness may violate a defendant’s constitutional right to confront the witnesses against him and therefore, a trial court should be unwilling to grant a motion in limine brought by the State if the result will be, for all practical purposes, an evisceration of the defendant’s theory of the case. People v. Prevo, 302 Ill.App.3d 1038, 1050 (1999). The test is whether limitation on cross-examination created a substantial danger of prejudice by denying defendant his right to test the truth of the testimony. People v. Harris, 123 Ill.2d 113,145 (1988). When applying the aforementioned test, a substantial danger of prejudice would be created were the Court to deny defendant the opportunity to test the truth of the arresting officers.
In resolving issues of credibility, the testimony of a police officer should be evaluated by the trier of fact in the same manner that the testimony of any witness is evaluated. A witness is not more or less credibly simply because that person is a police officer. However, the right to witness confrontation is satisfied only when counsel is permitted to expose to the jury facts from which jurors can draw inferences relating to the credibility of the witness. Davis, 415 U.S. at 318. Restrictions on defendant’s cross-examination of the officers in this matter would deny the defendant his right to test the truth of the officers’ testimony. The truth of what happened on the date of an alleged offense is a fact question. In order to assist the trier of fact in making this determination, the nature of the relationship between the defendant and the arresting officers is critical. These arguments can support a defendant’s request that a court find relevant subpoenaed disciplinary records of arresting officers.
If these issues apply to your situation, please contact John McNamara for help.
HIGH CRIME AREA; NARCOTICS ACTIVITY; CHICAGO
March 30, 2012
Often times, a police officer seeks to justify the stop and search of a defendant by characterizing a neighborhood or area as “high crime.” The officer’s characterization of the area as “high crime” requires careful examination, which issue was recently explored in the 1st District case of People v. Harris, 2011 IL App. (1st) 103382 (No. 1-10-3382)(September 2, 2011). In Harris, the Court looked to U.S. v. Montero-Comargo, 208 F.3d 1122 (9th Cir. 2000), for the proposition that the police characterization of an area as “high crime” requires careful examination because it can easily serve as a proxy for race and ethnicity. The Court identified the following factors as relevant to the evaluation of whether the State has sufficiently established that the location is a high-crime area for Terry purposes: (1) whether there is a nexus between the type of crime most prevalent or common in the area and the type of crime suspected in the stop at issue; (2) whether the geographic boundaries of the area are limited; and (3) whether there is a temporal proximity between the evidence of heightened criminal activity and the date of the stop at issue. A motion to quash arrest and suppress evidence should be granted if the State fails to present detailed evidence concerning the level of crime in the area where defendant was stopped, including timing, frequency, and the specifics of a location. Relevant issues include whether the police were responding to any calls or reports and whether the boundaries of the area were well-defined. If those specifics are lacking, the stop and seizure of a defendant cannot be considered a lawful Terry stop and a defendant’s motion to quash arrest and suppress evidence should be granted.
If these issues apply to your situation, contact John McNamara for help.
EXTRATERRITORIAL ARREST; CHICAGO POLICE OUTSIDE THEIR JURISDICTION
March 30, 2012
If a police officer from one jurisdiction makes an arrest outside of that jurisdiction, the arrest can be quashed and the evidence suppressed, which usually results in charges being dismissed. The exclusionary rule applies where police effectuate an extraterritorial arrest without appropriate statutory authority. For example, where Chicago police officers arrest a defendant in a neighboring village, without the assistance of local police, the search and seizure of the defendant may be unlawful. In this example, the Chicago police officers who effectuated the arrest lacked official police authority to arrest a defendant and the arrest cannot be legitimized as a private citizen’s arrest. In People v. Lahr 147 Ill.2d 379, 589 N.E.2d 539 (1992), the court affirmed the judgments of the lower courts suppressing evidence the police obtained during the course of an extraterritorial arrest. Outside his jurisdiction, a police officer’s right to arrest is no greater than that of a private citizen. Id. at 382.
An extraterritorial arrest will not be upheld if in making the arrest the officer uses the powers of his office to obtain evidence not available to private citizens. Id. at 383. An arresting officer uses the powers of his office where he is on-duty and wearing a uniform and badge. “Powers of the office” include the use of police computers, databases, police radios, and police vehicles. If police use the powers of their office to obtain evidence not available to private citizens, that type of assertion of police authority is unlawful.
If these issues apply to your situation, contact John McNamara for help.
ANONYMOUS TIP; MOTION TO QUASH ARREST AND SUPPRESS EVIDENCE
March 30, 2012
If police stop and search a defendant acting solely on an uncorroborated, anonymous tip, the stop and search are not justified and the arrest should be quashed. Such tips are not reliable enough to warrant the police seizure. A lawful Terry Stop may be based on information received from an informant, but the information must bear some indicia of reliability and must be sufficient to establish the requisite quantum of suspicion. People v. Culberston, 305 Ill.App.3d 1015, 1023, 713 N.E.2d 794 (1999). Anonymous tips generally lack reliability. People v. Yarber, 279 Ill.App.3e 5189, 526, 663 N.E.2d 1131 (1996). This is because anonymous tips do not demonstrate the tipster’s basis of knowledge or veracity. People v. Sparks, 315 Ill.App.3d 786, 792-3, 734 N.E.2d 216 (2000). The informant’s veracity, reliability and basis of knowledge are determinative. People v. Halmon, 225 Ill. App. 3d 259, 274, 587 N.E.2d 1182 (1992).
Where the reliability of the information obtained from an anonymous source cannot be easily corroborated and no other suspicious circumstances are known to police, a stop may be found unwarranted. People v. Ertl, 292 Ill.App.3d 863, 869, 686 N.E.2d 738 (1997). The need for corroboration of an anonymous informant’s tip is obvious where that person can never be cross-examined as to the reliability of his information or his motivation for providing it. People v.Patterson, 282 Ill.App.3d at 219, 227, 667 N.E.2d 1182 (1996). An anonymous tip standing alone, without corroboration, is insufficient. Sparks 315 Ill.App.3d at 792. Where the State’s evidence lacks sufficient evidence of corroboration and no other suspicious circumstance existed, a motion to quash arrest and suppress evidence should be granted.
The U.S. Supreme Court addressed this issue in Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375 (2000), where it ruled that an anonymous tip, without more, was not sufficient to justify an officer’s stop and frisk of petitioner. In J.L., the Court reasoned that the tip came from “an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about the petitioner.” J.L., 529 U.S. at 271. The Court reasoned that aside from the tip, police had no independent reason to suspect the petitioner of any wrongdoing, as he was just standing at the bus stop doing nothing in particular to indicate criminal activity. J.L., 529 U.S. at 270-71. Other than an anonymous tip, if police had no independent reason to suspect petitioner of wrongdoing, the stop and search are unlawful. In addition, the State usually cannot make a sufficient showing of the informant’s basis of knowledge or the reliability of his information.
If these issues apply to your situation, contact John McNamara for help.
CRIMINAL DEFENSE
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