Tag Archives: traffic stops

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.

Racial Profiling and “Consent” Searches

The ACLU and a number of civil rights organizations here in Chicago have released a report on racial profiling by the Illinois State Police in regards to traffic stops. In essence, blacks are “asked” if it’s ok to look around their vehicle three times more often than whites and Hispanics are “asked” twice as many times as whites if the ISP can just poke around. And you know what? It’s the whites with the drugs!

The results show that during consent searches, 8.85% of whites searched had contraband (pot, usually) on them, and only 5.06% of blacks and 1.12% of Hispanics have contraband.

Let me explain.

A consent search occurs when there is no probable cause or even reasonable suspicion to search your car. This means, in practical terms, that you’re speeding, a brake light is out, something traffic related is going on but nothing is arousing the suspicion of the officer otherwise. However, that officer has a bug up his butt and he wants to see what might be in that car. So he “asks” you. Why do I keep putting “asked” into quotes? Because only ironic air-quotes (picture me making air quotes while typing this) can capture the heavily fraught situation that is you being a minority and the police asking, politely, but without explanation, whether they can look around your car.

It is no small thing to stand up to a police officer, state trooper, sheriff, what have you. When one asks if they can look around your car, even a legally savvy driver may hesitate before stepping up and demanding to know why. That is exactly what the Illinois State Police is counting on. Yet, even though they search Hispanics like this twice as much as they search whites, they’re uncovering drugs in only 1 in a 100 searches? Seriously?

Let’s break down some other numbers from the Chicago Tribune story on this. There were 23,000 searches like this out of 2.4 million (?!) traffic stops by the Illinois State Police in 2007. That’s 63 “consensual” searches a day. Out of them, 18% of them revealed contraband. Depending on your orientation, you might think that a slightly less than on 1 in 5 hit rate is good for a cop, or as I do, think that’s pathetically low for an intrusion into your vehicle. Whatever happened to the United States where a cop poking around your business for no reason was unacceptable? Or were we ever like that?

If anything drives me nuts about conservative politicians, it’s that few are of the strong conservative values types actually think less government intrusion is a good thing. In other words, when its blacks and Hispanics getting searched and bothered for admittedly NO REASON WHATSOVER, it’s an acceptable risk in the War on (Drugs, Terrorism, Immigrants, Violence, You Name It). Even though the evidence is staring them right in the eyes that it’s whites who have more contraband on them!

Actually, I can explain this pretty easily. To an Illinois State Trooper, every single Hispanic and black person is suspicious…because they’re stereotyping. However, Illinois State Troopers aren’t stupid, and they recognize suspicious looking whites when they see them. So they have a higher hit rate with whites because they are more targeted (only stoners and tweakers are “asked” to be searched) than with the dragnet they use on blacks and Hispanics (all of them are suspicious).

I hope that Windy Pundit jumps on this a bit, since his grasp of statistics is far greater than mine.

Illinois DUI Law – III – Motions to Suppress or the Pre-Emptive Strike

Many of my clients approach me no matter what the charge and ask the same question “Can you get it dismissed?”

What they really mean, is the Motion to Suppress, the Holy Grail of most criminal cases. This is the opportunity to cut the knees out from under the prosecution and bring the state’s case to a crashing halt. It also USUALLY but NOT always means the dismissal of the case against you.

So what is a motion to suppress evidence and quash arrest? Essentially, you, the accused drunk driver, are saying that there was no reason for the police officer, state trooper or sheriff to pull you over. If they had no reason to pull you over, then the arrest is invalid. If the arrest is invalid or the detention is illegal, then evidence gathered from that arrest is not allowed into court. In a DUI case, that means, if they had no reason to stop you, then the case will be effectively won.

See, most motions to suppress evidence (the breathalyzer, the results of your field sobriety test, the observations of the officer, that is the evidence you want knocked out) are lost. They are lost because the bar is set quite low on whether there was probable cause to arrest. This is where technology comes in.

Since a motion to suppress usually involves the word of you, the accused drunk driver, against the word of the (presumably) sober police officer…you usually lose. So hopefully there is a videotape of your arrest.

In many places, police cruisers have video cameras that automatically turn on when the wig wags (the lights on top) go on. But, and this is important for the Chicago DUI defendant, Chicago police cruisers do NOT have video cameras. Too expensive to install the damn things…or something. So, unless you’re pulled over by the State Police, or a smaller police force (Oak Park, Blue Island, etc.) you are out of luck.

The reason the videotape helps is that the police officer should be pulling you over for one reason…a traffic violation. That traffic violation is, in the case of a drunk driver, usually failure to stay in your lane, observe a traffic signal, failure to signal a turn, or something else petty. It can also be even more petty, like having out of date registration, or a bum brake light. These are all citable offenses, therefore the police has probable cause to stop you. The question then becomes, does that stop proceed to probable cause to investigate you for drunk driving.

Assume that you the accused drunk driver have not a) hit another parked car, b) been waiving a fifth of Jack out the window or c) been observed by the officer stumbling out of the Cabo Wabo Free Tequila and Rum Shooters Cubs Party Deck on Clark Street. Let’s say, you’re just driving down the road, minding your own business when all of a sudden the lights are in the rear view.

If that police officer has no reason to believe you have been drinking, then s/he should not start into a DUI type stop. So what leads them to believe you have been drinking? We’ve already gone over that in part I with the bloodshot eyes, the slurred speech, the difficulty finding your wallet or proof of insurance.

However, it’s the initial traffic stop that brings you to their attention and that’s what you hope the police officer may or may not have recorded. Of course, think about it, if the police officer turns on the lights, it’s because they NOW have reason to pull you over. And since the cameras don’t roll all the time, it’s most likely that the police officer doesn’t turn them on until after the traffic violation is observed. However, things like “failure to stay in your lane” particularly, should conceivably be able to be observed as you are being pulled over. It helps if the video shows you signaling properly, staying in your lane, etc.

It will still be the word of the officer that will be key. That officer will have to describe, with particularity, what it is that you did to violate the Vehicle Code, the City Code, or the Statutes of the State of Illinois, and therefore allowed them to stop you. If that officer can’t, then you will be found to have been illegally detained, and therefore not been legally arrested, and the evidence, all of it, will be thrown out. That is as big a victory as the DUI defendant usually gets.

p.s. It should be noted that things like audio recordings of the police officer’s radio dispatches, the video recording from the cruiser…these things are all destroyed after roughly 28 – 30 days in almost all jurisdictions. That means, CALL YOUR LAWYER RIGHT AWAY. I can’t tell you how many people call me after their first or second court date, which is weeks too late to get a hold of any evidence. Time is NOT on your side. Act fast, or lose it.

Read Part II of Illinois DUI Laws here

And Part I here