Category Archives: Search and Seizure

A Bad Day for the 4th Amendment

Any criminal defense lawyer will tell you that most days are bad for the 4th Amendment. We see bad law, bad rulings and an overall erosion of your right not to be searched and seized without probable cause every day.

So when the Illinois Supreme Court comes along and whittles a little more of it away, it’s not a surprise.

People v. Cosby is a consolidation of two cases, Cosby and People v. Mendoza. Both of these cases involve traffic stops and prolonged detentions.

Generally speaking, you cannot be held by a police officer without either reasonable suspicion or probable cause of you having done something wrong. During a traffic stop, the police officer has usually seen you do something wrong to justify the stop (I say usually because although the police ALWAYS say they saw you break a traffic law, we all know this is sometimes a convenient fiction). Therefore, the stop is justified and the duration, purpose and intrusion of the stop is justified by the criminal act observed.

So let’s say you break a traffic law, and you’re not waving a gun or a baby out a moving car window. That traffic law is usually a misdemeanor or even solely a citation, so the detention and purpose of the stop is governed by the seriousness of your actions. i.e. the police CANNOT search your car because you fail to signal. There’s no reason for the police to believe there are drugs or guns in a car because you are a poor driver.

But this is all a sham. The police, once they approach your car and look at you and your passengers, can now try to figure out a way to get inside and poke around. Here’s how they do it. They decide you look high, bloodshot eyes, shifty maneuvers in the car, fumbling with your license or insurance, the odor of marijuana, a gang affiliation sign of some kind (in Mendoza the police officers said that a red bandana hanging from the rearview mirror was a sign of gang affiliation). Whatever it takes for them to come up with “articulable” suspicions, or even better probable cause. Of course, probable cause would be direct information that a crime had been committed, which would be like seeing a gun, or a bag of weed itself.

However, let’s say the police don’t see any other criminal activity and could not justify entering your vehicle. This leaves them with one last option. Asking you.

You’d be amazed (if you’re a lawyer reading this, you are not) at how many people, with drugs / guns / dead hookers in the trunk consent to a search. And the reason they consent is the very reason the ruling in a case like Cosby is so difficult to deal with as an attorney. People consent to searches of their car when they should know better…because they don’t know better. They don’t realize that when an officer ASKS you, you get to say no. The reason people consent is because they don’t actually think that they are being ASKED they are being ORDERED.

In the case at hand, both Cosby and Mendoza were stopped for traffic citations. The officers returned paper work to the drivers then asked to search their cars. The court ruled that at this point the drivers were “stopped” again. The question was, was this one long stop, or two separate stops, one for the traffic citation, and another, separate stop, that was essentially a consensual search. Both Cosby and Mendoza agreed to let the police search their cars, turning up some crack and a gun respectively.

The court held, in a 4-3 split with some strong dissents, that the second “asking” of the drivers to search their cars were not a “seizure” within the 4th Amendment. The long and short of it, is that these drivers were free to leave and when asked if the officers could have searched the car, could have said no and been on their merry way.

No way. No way in hell did these drivers understand that, know that, or could have done that. The standard by which the law considers you, the average person, to be “seized” by the cops, is when you do not feel free to leave. Certain things the cops do make you not feel free to leave. Guns are drawn, a whole lot of them surround your car, their emergency lights and sirens are on, you are ordered to place your hands on the wheel…things like that.

What the llinois Supreme Court seems to be doing (while denying that it is doing it in the same breath) is applying the Mendenhall standards as a rigid formula for seizure. United States v. Mendenhall, 446 U.S. 544 (1980) is a Supreme Court case laying out the general parameters of when a person is “seized.” Illinois Supreme Courts have been pretty much in lockstep with U.S. Supreme Court (much to the dismay of defense lawyers) for years. Mendenhall lists factors such as 1) the threatening presence of several police officers, 2) the presence of a drawn weapon, 3) language and tone of voice that suggests compliance is necessary and / or 4) touching of a person. Mendenhall goes on to state that this is not an exhaustive list of factors regarding whether you are seized…suggesting, obviously, that other factors come into play.

Here, in each stop, there were only two officers, no touching, and depending on whom you believe, little forceful language. In the Mendoza case one officer admitted to drawing his gun, but not “displaying it” to the driver. This is unbelievable on its face.

The defense, in both cases, argued, however, that the two police officers “flanked” the vehicles in question, at night, and asked for permission to search immediately. The defense’s position is that these people in these cars simply did not feel free to leave, and the searches should have been pursuant to the safeguards of the 4th Amendment. In other words, don’t let the police get away with a fishing expedition.

The Illinois Supreme Court disagreed. The State argued, successfully, that the stop was not prolonged. Obviously as a practitioner, prolong that stop as long as possible. Get the facts out as to how long the whole thing took. In Cosby the testimony was that the officer immediately asked for permission to search and was granted it. Get this stop to take forever, and you’ve got a better motion to suppress.

The dissent states it plainly…for it is plain. Cosby could not possibly have felt free to leave. The Illinois Supreme Court rigidly applied the Mendenhall standards, while claiming it was not. Instead of looking at the totality of the circumstances, the court just felt that once the officer handed Cosby his proof of insurance back, his stop was over, and that immediately afterwards, Cosby could have just driven off.

Not in this lifetime he wouldn’t.


Constructive Possession, Drug Busts and the U.S. Mail

Today we went to trial and won without even putting on any witnesses for the defense. Out in Bridgeview (the 5th Municipal District) I watched the State’s Attorney have their case fall apart like tissue paper. It was a teaching moment, not their fault, but indicative of what you can face as a person caught up in the War on Drugs.

An informant had claimed to have bought drugs at the house of my client. The informant (confidential, of course) said that my client had offered her marijuana, left the room they were in (the living room) went into his bedroom and returned with weed. My client supposedly said that she could come back at any time.

My client was described as 5′ 08″ Hispanic male with dark hair. Really? Isn’t that about 75% of the Hispanic population in Chicago? Anyway, based on this flimsy info, the police obtain a search warrant and raid my client’s former home.

See, my client had moved out over a month prior to the alleged drug sale. My client had rent receipts and witnesses from Indiana where he was living. The police still came in, without any information that there would be guns or possible violence, shot all three of the family’s dogs (two of which were chained up and on less than four feet of leash) and tore the house apart. My client was not there, because he did not live there.

Now. In order to prove the intent of drug possession with intent to deliver, you must prove 1) knowledge of the presence of the cannabis, 2) it was in the person’s immediate control and 3) the quantity was in excess of an amount that might be viewed as for person use. I should note, my client barely made it over the limit for personal use possession.

However, it’s number two that is the kicker. The police must prove you had it in your immediate control, and what if when they find it, you’re not around? In our case, that was the issue, my client wasn’t home when they found a small amount of drugs in a bedroom. In order to prove that it was his, the State must prove “constructive possession.” Constructive possession is circumstantial proof that you, the criminal defendant, exert control over the area the drugs were found.

In order to do this, the police, during drug raids, take two things. Pictures and mail. Pictures are meant to show that you had pictures of yourself up and why would there be pictures there if it wasn’t your room (or house, or whatever). The other is the mail. When they find mail at the residence with your name on it, they grab it.

In our case today, the police grabbed…a four year old tax return, a bill with our client’s name on it…but it turned out to be for his father (who has the same name) and a pay stub, dated two days prior to the raid. Obvious defects were there with the tax return and the bills for our client’s father, but the pay stub was a problem. Clearly, there’s evidence there from our client from right before the raid…but of what?

Turns out, of nothing. For two reasons. Our client still visited home quite often. He was a young man and he did laundry at home, came home for meals, had four younger siblings still there. But more damning, the State didn’t have the police officer present from the raid who could testify from where any of the mail was found. What we knew was that they just grabbed a basket full of bills from the living room and took everything with our client’s name on it (which was also the name of his father). This pay stub was probably in there…but we’ll never know because no where in the police reports and no where in evidence did we have a clue as to where the mail came from.

In the end, the judge spent a good ten minutes from the stand lecturing the State on the weakness of their case. This was one of those “teaching moments” where I actually believe the judge was lecturing the police because of the really poor job they did. In fact, at one point, the judge noted that the police never asked our client the one question they should have. Which was, which bedroom was yours? Now the judge also noted that the police didn’t want my client to deny he lived there, or state the wrong room. So the police gambled. They gambled that they would be able to prove with the poorly documented and hastily gathered evidence, that there was constructive possession of the drugs they found. Which they could not, hence, my client was not guilty.

Of course, there is but one lesson to be learned from this whole escapade, which is the same one to be learned from all our teaching moments here. NEVER TALK! Ask for your lawyer, insist on not answering any more questions until you have been allowed to see your lawyer and just shut up. Proving constructive possession isn’t easy…don’t hand it to the State on a silver platter.

“High Crime Area”

There are many definitions in the law that are fuzzy and up for interpretation. One that is used to justify a host of constitutional violations is “high crime area.”

Here’s a quick primer on “high crime area.” Look around you. Are there a lot of black and/or Hispanic people? Are most of the stores selling malt liquor, cigarettes and have a distinct lack of produce? Are the cars in your areas on blocks and/or ridiculous rims?

Then you live in a “high crime area.”

You don’t need statistics to justify it. You must not prove that compared to other areas of the city it has more crime. Just say it, and it is!

A recent ruling in the 1st Dist. Appellate Court (that’s Cook County, yo) showed that maybe, just perhaps, courts are going to start looking at “high crime area” and its progeny and limit them.

In re. Mario T., No. 1-05-3499 (that’s a juvenile case…we don’t use their full names to protect them) discusses the use of “high crime area” to justify the search of a loitering juvenile.

In the case, police were called to apartment building after reports of three unknown men breaking into a vacant unit. Two officers responded to the building at 2964 S. State. Keep in mind, that’s less than a block from IIT, and, hilariously enough, about two blocks from police headquarters on Michigan Ave. and 35th St.

Upon arrival, the police find four youths (pronounced “yoots” in Pesci-lawyer-speak) loitering in the hallway. At this point, minus any other information, the police have no right, or justification to search the kids. Until the kids raise a “reasonable suspicion” in the police, they can’t search. The police need a “reasonable suspicion” to perform what is known as the “stop and frisk” or the Terry stop.

Terry was a bloke in Ohio back in the day (the 60’s) who was frisked by a police officer when Terry raised the cop’s suspicion that he was casing a store to rob. The police may “frisk” you for the purpose of making themselves safe…aka, check to see if you’re carrying a weapon. But that’s about all they are supposed to look for in the search.

Basically, the police operate on three levels of interaction with you. One is normal. They’re a dude, you’re a dude, you’re hanging out, nothing happening. Two is “reasonable suspicion.” This is where you’ve done something to make the cop suspicious that criminal activity is afoot. Third is “probable cause.” At this point, the cops can arrest you. Prior to that, they can’t.

Well, Officer Handsy (not her real name) frisked the yoots and found herself a big ol’ bag of crack. Actually, a big bag with 26 smaller baggies in it. It’s like a box of Cracker Jacks with nothing but prizes in it!

Anyway, was Officer Handsy’s search justified? What sort of reasonable suspicion could these daaangerous youths have inspired in her? They live in a “high crime area”! That’s how!

The officer testified that it was determined that the youths didn’t live in the building (although the kid in question for this case lived down the street) and said they were visiting one of their sisters. Officer Handsy said that it was her experience that the building they were in and the area they were in had a lot of investigations involving guns and drugs. Oh my!

This is the weakest leg to stand on I have ever heard for the justification of a search. And to the lawyer’s credit in the case, he argued, “under the state’s attorney’s theory, everyone who lives there…is subject to a reasonable search and seizure…because…anyone who lives in that area is under suspicion based on the fact that they simply live there.”


“High crime area” is such a nebulous and, frankly, bullshit definition and yet it is used to justify searching, well, black and Hispanic people, wherever the police damn well please.

So, the Appeals Court, applying a bit of common sense and bit of Constitutional analysis, decided this was not enough. Officer Handsy had no reason to search the youths, the bag of crack was suppressed, and presumably, when the state tries to bring this case again, they will simply give up.

But! A kid got away with possessing a whole lotta crack! Yup. He sure did. And he did so to protect yours and mine civil rights. The fact is, we as a society punish the lawless. In this case, the lawless individuals were the police. We punish them by removing the “fruits of the poisonous tree.” Without rambling on and on, this is to say, we don’t let the police use against you what they illegally obtain. Since these youths, and Mario T. especially, had their rights violated by claiming that by virtue of them living in a “high crime area” the police can search them just for standing around in a hallway, the police were punished by not letting them use the drugs in the court case.

Now, the police sympathizers on the court stated that this was just smart police work. A dissenting judge, Presiding Justice Cahill, said that any police officer would have done exactly the same thing. Officer Handsy had said in court that she was afraid, concerned for her safety. And when you perform a Terry stop, as a police officer, you are protecting yourself by making sure the person you stopped doesn’t pull a piece on you.

BUT! You have to have a reason to believe that person is possibly up to criminal activity. Four kids, in a building, in a hallway, doing nothing else, not matching the description (presumably) of the men breaking into the apartment that brought the police there in the first place, well, what exactly are they up to?

Being black. And young. In a bad neighborhood. And usually that’s enough to let the police violate your rights.

Not this time.