Seminar(s) -- Spring

I have a seminar I'd like you all to consider signing up for --
It's NEMRT sponsored.
It's a three-day search and seizure -- for supervisors --
But I would like officers to attend if you can.
It's at the Winnetka Police Department, April 7-9.

All of the following seminars are in MTU 3 area and are NEMRT sponsored.
YOu can find them by googling NEMRT -- or just logging onto NEMRT.com
Check out the Legal Section.

Crystal Lake -- March 30 - April 1 (S and S)
'
Winnetka -- April 7 - 9 (S and S)

Burbank -- April 14 - (Interrogations -- the law of taking statements)

So Barrington -- April 16 (Civil Liability)

Algonquin -- April 21 - 23 (S and S)

LaGrange Park -- May 5-7 (S and S)

Buffalo Grove -- May 12 (Recent Case Law)

Bolingbrook -- May 26-28 (S and S)

Best -

DA

Suggestion -- check back about once a month

Frankly, I will probably blog here only about once a month.

So that you are not disappointed -- finding that I have not blogged recently -- please check here only about once a month.

Also, if you have any question, please don't ask it on this site.

Send the question to me at DAA2000@aol.com as I will only check this site out about once or twice a month.

Best -

DA

FLORIDA V POWELL -- a USSC opinion of little consequence

Whenever I see an opinion written by Ruth Bader Ginsburg, former ACLU lawyer, that favors law enforcement, I have to assume that it is going to be another milqetoast ruling.

POWELL is that and more.

Basically, the USSC, through Ginsburg, ruled that if a suspect in custody is told during his MIRANDA warning that he has the right to talk to a lawyer before questioning -- and that he has the right "to use any of these rights at any time you want during the interview," the officer is explaining to the suspect that he has the right to an attorney during the interrogation.

Therefore Powell's statement was admissible.

Best -

DA

MARYLAND V SHATZER -- Can officers reinitiate interrogations after a suspect has asserted his right to an attorney?

Ok -- here is short story made long about a new US Supreme Court case.

A little background --

The difference between the 5th and 6th amendment right to an attorney
Officers and some attorneys get confused about the difference between a 5th amendment right to an attorney -- and a 6th amendment right to an attorney.

The 5th amendment right to an attorney is triggered when a suspect in custody is given his Miranda warnings and says something like, "I want my attorney."

The 6th amendment right to an attorney is triggered by "formal proceedings" that have been initiated against the suspect / defendant.

I am going to explain only issues related to the 5th Amendment right to an attorney.
This right has been given undue deference by the courts.

However, a recent decision by the United States Supreme Court has limited the protection this right affords.

First off, many courts, including apparently Illinois, Arizona and Texas, have implied that the right is virtually "eternal" if the suspect is never released from custody.

In other words, if a suspect asserts his right to an attorney, officers have traditionally been prohibited from returning to talk to the suspect at all about the case -- ever.

Some states have even taken this rule one step further. They have said that if a suspect asserts his 5th Amendment right to attorney, that right is not "crime specific" -- meaning that officers cannot question the suspect about any crime while he is still in custody. (See e.g. People v Lira, 742 NE2d 885 ( 2001)

The United States Supreme Court ruled...
On February 24, 2010, that after a suspect asserts his 5th amendment right to attorney, officers may return after 14 days and see if he / she has changed his mind. This is apparently the rule whether or not the suspect has been released from custody. MARYLAND V SHATZER

To appreciate the holding of the this case, I am compelled to state the facts --
Shatzer molested his son. While in prison on a different offense, an officer "warned" Shatzer and Shatzer asserted his right to an attorney. The officer immediately cut off questioning.

Later, more facts emerge that Shatzer molested his son, so an officer visits Shatzer in prison about three years later. This officer gives Shatzer his "warnings" and Shatzer waives his rights and makes admissions about the molestation(s).

And now the ruling of the court of appeals in Maryland...

The lower court basically said that once a suspect asserts his right to an attorney about a case, he can never be approached again about the case. So the later statement was suppressed.

As stated above, the USSC reversed the Maryland court ruling that 14 days was plenty of time for a suspect to be free from police attempting to question him. Therefore his statement was admitted.

Note -
If the defendant has asserted his right to an attorney at his initial appearance, you cannot question him about the crime for which he is being prosecuted. That is a 6th Amendment right.

Are you confused enough now?

If you don't get it, write me -- and I'll try to answer your questions.

Best -

DA

Is anybody reading these blogs?

If so, write me at DAA2000@aol.com

Some times I don't blog because I think no one reads them anyway.

This way at least I can find out if it's worth the time to blog.

Best -

DA

Waiving 6th amendment rights

A suspect waives his 6th Amendment rights -- right to attorney -- the same way he waives his 5th amendment rights -- by hearing his rights and waiving them.

If the arrestee, has his 6th amendment rights only because he has an arrest warrant out for him, he may be warned and questioned.

If, however, an arrestee has gone through his initial appearances and has asserted his right to an attorney, he may not be questioned.

Best -

DA

Warm up questioning

The United States Supreme Court in MISSOURI V SIEBERT, warned officers that warm-up questioning -- prior to Mirandizing a suspect in custody -- is dangerous -- especially if the questioning touches on issues related to the investigation.

Illinois is beginning to apply this rule, so be careful.

In People v Griffin the court applied the rule to probably let a murderer walk as the officers questioned a woman about killing her baby before Mirandizing her. In Griffin, officers questioned a woman about killing her baby without giving her her warnings, including some questioning about the baby's death. When she began to crack the officers gave her her warnings -- and then she basically confessed.

The court suppressed the confession -- both for questioning in custody without warning and using warm-up questions to soften up the suspect.

Careful!

Best -

DA

Seeking consent after a traffic stop

The United States Supreme Court ruled relatively recently that normally the only important "scope" issue during a traffic stop is time. Officers can ask just about any question of anyone in the car, can ask for consent and can call out a dog -- as long as they do everything within the same time it takes for a traffic stop.

So the next question is -- how long is a traffic stop?

Recently a court held that 14 minutes was too long a time during a traffic stop to call a dog out. The dog hit on the car 14 minutes after the stop and the evidence was suppressed. People v Baldwin

In another case an Illnois court ruled that 18 minutes was not too long to issue two tickets.

There is another way to get around Baldwin.

The Illinois Supreme Court case of People v Cosby stands for the proposition that once an officer returns a driver's paperwork and license, the stop / seizure is over. Therefore, if a driver will remain after that, there is no real time limit as there is no seizure. so then an officer can ask for consent to search -- or bring a dog out.

Best -

DA

Reasonable Suspicion -- Illinois is one of the toughest states in the country

If you aren't sure you have reasonable suspicion to stop someone, you should simply engage the suspect in a tier 1 contact if the suspect is on foot, or get a legitimate traffic stop if the suspect is in a vehicle.

Pedestrian Suspects
An officer drove into an apartment parking lot at 3:30 am. The lot was a high crime area where there had been numerous car burglaries. Kipler came out from behind a dumster and walked across the parking lot. The officer stopped him.

The Illinois Court of Appeals ruled that the facts did not constitute reasonable suspicion. Therefore the stop was unconstitutional.

Suspects in Vehicles
An officer sees a guy, Cordero, parked in a parking lot where all the stores are closed. His car is apparently the only car in the lot. As the officer drives up to the Cordero the guy drives off. The officers stops Cordero and determines that he is drunk.

The Illinois Court of Appeals ruled that the facts did not constitute reasonable suspicion. There fore the stop is unconstitutional.

Think about what I am stating -- Illinois is about the toughest state in the country on reasonable suspicion. If you aren't sure if you have it, try to do a contact if the suspect is on foot and or get a traffic violation if the suspect is in a car.

Best -

DA

Anonymous tips v tips where you don't know who the party is

I have become apprised of the fact that many officers don't apprieciate the difference between an anonymous tip and a tip where the source is not immediately apparent or unknown.

First off, an anonymous tip alone that simply says someone has drugs or a gun cannot create reasonable suspicion unless the tip also predicts the movement of the suspect. ALABAMA V WHITE

Howver, if the tipster is known but simply wants to remain anonymous, he / she is not anonymous.

Also, if the tipster talks to the officer face-to-face, but the officer does not have time to get the tipster's information, the tipster is not anonymous -- and can create reasonable suspicion.

Finally, if the tipster is not immediately known but can be located in person or by phone, the tipster is not anonymous.

Here is an example -- an unknown employee at Wendys called police stating that a person at the drive through was drunk. An officer show up almost immediately and stops a car driving out of the Wendys parking lot. there were no other cars around. The driver, Shafer was drunk.

The court ruled that the unknown employee's call created reasonable suspicion to stop Shafer.

Therefore the evidence was admissible.

Best -

DA

The USSC and the Emergency Doctrine

The United States Supreme Court had never ruled specifically on the emergency doctrine until about 5 years ago. Now in 2010 we already have another emergency doctrine case at the USSC.


The emrgency doctrine provides that officers may enter premises if they are reasonably entering to save a life or help someone in some kind of danger. The primary motive must normally be to help -- rather than arrest.


A classic example is -- officers get a 911 call from an underage drinking party, where a kid has overdosed and is passed out.


1. So -- First, the 2006 case -- BRIGHAM CITY V STUART, 547 US 398 (2006)


Officers respond to a noisy party call. No one answers at the front door, so officers go around to the back door. From that vantage point the officers see a fight, a melee, in the kitchen with men bouncing off the appliances and spitting blood into the sink, etc.


The officers try to knock and announce -- but to no avail.


So the officers entered and arrested the men.


The United States Supreme Court unanimously ruled that this was an "emergency" entry.


An important side note here is that the Court held that it didn't matter that the officers were also going to arrest people inside -- it still was an emergency doctrine search.



2. The 2010 case is MICHIGAN V FISHER


In this case, neighbors explain to police that Fisher is acting crazy. The police go to Fisher's home. The police notice that the front of his truck is bashed in that, and there is blood on the inside of the truck and on the door knob. They also notice that three windows are broken out.


Fisher is inside the house throwing things about, yelling and swearing.


The officers ask Fisher if he's ok. Fisher tells them to leave unless they have a warrant -- and he yells and swears at them, etc.

The officers enter and ultimately arrest Fisher.

The Court held that the entry was constitutional under the emergency doctrine. (The Court even speculated that Fisher might be throwing things at someone!)

Best -

DA

Officers sticking their feet in the door

Officers may not stick their foot in the door to keep an occupant from closing the door unless there is a theory for entering the premises.

The theories are:
PC - Warrant
PC - Exigency
Emergency
Consent

Putting your foot in the door is a "search" under the 4th Amendment.

In People v Klimek officers talked to some people in an upstairs apartment who were complaining about Klimek making too much noise in the apartment below.

Officers knocked on Klimek's door. A female came to the door and said Klimek was too sick to come out. As she was going back into the apartment, the officer stuck his foot in the door. someone closed the door on his foot.

The court ruled that putting the foot in a door was a search and that there was no exigency in this case.

Best -

DA

The Illinois Supreme Court's interpretation of GANT

In a recent case the Illinois Supreme Court put its Good Housekeeping Seal of Approval on the dictum in GANT.

In that case People v Bridgewater, 918 NE2d 553 (2009), an officer stops the car Bridgewater is driving and subsequently arrested for obstructing. Bridgewater is handcuffed and placed in the back seat of the police vehicle.

Officers then search Bridgewater's car and discover a gun.

The court in ruling that the gun was not admissible, stated,

"Following Gant, a vehicle search incident to a recent occupant's arrest is authorized only when:
(1) the arrestee is unsecured and within reaching distance of the vehicles's passenger compartment at the time of the search;
or
(2) officers reasonably believe evidence relevant to the crime of the arrest may be found in the vehicle."

Best -

DA

Reasonable belief the arrestee is in the house

Illinois is extremely liberal / easy in it's rules on entering premises to execute a warrant when you do not see the arrestee inside.

In Stibal, the officers testified that they thought Stibal had only one vehicle, and that vehicle was parked in the driveway.

The court ruled that that information was sufficient to enter with an arrest warrant.

(Stibal actually had just taken off on his motorcycle.)

Best -

DA

Tier 1 -- You can't give orders

The courts in Illinois are beginning to reach a consensus that officers cannot give orders in Tier 1 -- consensual encounters, contacts.



In People v Tate, a man, Tate, drove onto to a driveway where officers were executing a search warrant. The officers demanded to see the Tate's hands. When he wouldn't show his hands, the officers pulled him out of the car.



The Illinois Court of Appeals ruled that the order basically created a detention. Since there was no reasonable suspicion, the detention was ruled unconstitutional.



Note Here -- There was no reason to believe the suspect in the home was selling drugs. Therefore there was no reason to believe that Tate was there to buy drugs.



In a more recent case an officer approaching a suspect in relatively high crime area ordered the suspect, Jackson, to take his hands out of his pockets four times. Jackson finally did take his hands out and a gun fell out on the ground.



The Illinois Court of Appeals in this case ruled that the orders / commands turned a contact into a detention. Since there was no reasonable suspicion the evidence was suppressed.



In order to keep a Tier 1 contact situation, thry to request -- rather than order. And try to only have one other officer -- not two.



Obviously, the most important fact is that you must go home at night -- just realize that the court is looking for the fact that you make a contact consentual. If you can't just remember that the evidence seized will probably be suppressed.



Best -



DA

Civil Disputes

I am going to suggest that where you have a civil dispute that has criminal code implications, you consider turning the matter over to the prosecutor for charges.

If necessary, give a citation.

Worst option -- arrest and take down to the station.

Officers are being sued like crazy for arresting people involved in civil suits.

A recent one is this -- a complainant says the neighbored keyed her car. The neighbor was around the car and the neighbor got a video of this. But apparently there was no way of saying for sure that the neighbor keyed the car.

These neighbors had been bickering at each other for a long time.

The officer arrests the neighbor without questioning him. Eventually, the case is dismissed.

The court ruled that the officer could not get summary judgment or qualified immunity as he failed to investigate the crime thoroughly enough to ensure that there was probable cause.

I could cite 100 cases like this -- only much worse.

Best -

DA

Parolees -- Searches and Seizures

The big case at the United States Supreme Court level is Samson v California, 547 US 843. In that case, an officer stopped a parolee without reasonable suspicion. The officer then searched the parolee and discovered meth in a cigarette package.

The United States Supreme Court ruled that the search was constitutional and the evidence admissible because:
-- parolees have an extremely low expectation of privacy – not much higher than if they were (still) in prison.
-- the conditions for parole, which the parolee signs, states that parolees must consent to searches.

My opinion about different situations dealing with parolees:

The parolee who is a pedestrian
Officers may normally stop a parolee in the street and search him without reasonable suspicion. See Samson above.

The parolee who is in his home
No one knows yet if officers may enter a parolee’s home without reasonable suspicion – or whether a parole officer must initiate the search.

The parolee in a car
Normally, I would say that if an officer can stop a parolee in on a sidewalk with reasonable reasonable suspicion, he can also stop him in a car. But in this instance, I just don’t know. We’ll have to wait for a ruling in Arizona. Meanwhile I think you should try to find a traffic offense. I think that once you have a legitimate traffic offense, you can search the parolee. Try to get consent to search the car as I’m not sure what the court will say about that.

Probably most important is that officers read the parole agreements themselves. These conditions for parole are usually boilerplate and impose relatively the same conditions on all parolees.

Best –

DA

Parolee Searches and Seizures

The big case at the United States Supreme Court level is Samson v California, 547 US 843. In that case, an officer stopped a parolee walking down the street without reasonable suspicion. The officer then searched the parolee and discovered meth in a cigarette package.

The United States Supreme Court ruled that the search was constitutional and the evidence admissible because:
-- parolees have an extremely low expectation of privacy – not much higher than if they were (still) in prison.
-- the conditions for parole, which the parolee signs, states that parolees must consent to searches.

The big case in Illinois is People v Wilson, 885 NE2d 1033. In this case Wilson signed an “agreement” as a condition of his parole that stated in part, “you shall consent to a search of your person property or residence under your control.” Wilson was required to sign this order before parole could be granted.

An anonymous caller stated that Wilson had narcotics and guns at his apartment. Wilson’s parole officer and police entered the residence where Wilson was living. Officers immediately handcuffed Wilson and then searched his bedroom, finding drugs.

The Illinois Supreme Court ruled that the officers did not need reasonable suspicion to search Wilson home as he had waived his rights, and he had such a low expectation of privacy.

My opinion:

1. The parolee who is a pedestrian
Officers may normally stop a parolee in the street and search him without reasonable suspicion.

2. The parolee who is in his home
No one knows yet if officers may enter a parolee’s home without reasonable suspicion – or whether a parole officer must initiate the search.

3. The parolee in a car
Normally, I would say that if an officer can stop a parolee in on a sidewalk with reasonable reasonable suspicion, he can also stop him in a car -- as there is no real difference constitutionally. But in this instance, I just don’t know. We’ll have to wait for a ruling in Illinois.

Probably most important is that officers read the parole agreements themselves. These conditions for parole are usually boilerplate and impose relatively the same conditions on all parolees.

Best –

DA

Searching Cell Phones

There are a few theories for searching cell phones --

1. Search Incident to Arrest

IMO GANT permits the search of a cell phone if the arrestee is not yet handcuffed or if the cell reasonable might contain evidence related to the arrest.

2. Search Warrant

If the evidence in the cell phone might be crucial to a big case -- e.g. help to convict a murdered, you should consider obtaining a warrant to search it. I have been told that information in a cell phone can be destroyed, so if you do this you might want to take appropriate measures to protect the information.

3. Consent

Always ask for consent (for any search you do. It can never hurt and it may help a great deal if other search theories are determined to be defective).

Best -

DA

Comments or Questions for me

I have been very busy and unable to get this site as often as I would like.

If you have questions or comments, please e-mail at DAA2000@aol.com.

Best -

DA