Saturday, June 25, 2016

Supreme Court Imposes Limits on Police and Motorists in DUI Case

On Friday the United States Supreme Court issued a decision in a DUI case that many criminal defense attorneys have been closely following.  The case is actually three separate cases consolidated into one case captioned, Birchfield v. North Dakota.  What united all 3 cases was that they all dealt with a North Dakota law which made it an actual crime to refuse to take a breathalyzer and a blood test when requested to do so by the police.  There is no such law in Illinois.  A refusal to take a breathalyzer or blood test can result in the suspension of your diving privileges but is not an actual crime in Illinois.  However, 13 other states make a refusal to submit to a breathalyzer or blood test a crime.  Both North Dakota and Illinois have "implied consent" laws which state that when you operate a motor vehicle upon the public roads, you consent to submitting to a breathalyzer and a blood test when requested by the police.  Illinois warns you that failure to consent could result in the suspension of your driving privileges while North Dakota warns you that failure to consent could result in criminal prosecution.  Refusing to submit to a breathalyzer or a blood test is a misdemeanor in North Dakota.

In a 5 to 3 decision, the Supreme Court ruled that the police do not need a warrant to do a breathalyzer test but need a warrant to take a blood test.  The majority opinion was written by Justice Alito who held that "because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving."  Since it's considered a search incident to a lawful arrest, a warrant is not needed.

Since the case involved 3 separate DUI arrests, there were 3 different outcomes.  One driver, Danny Birchfield, had his conviction for failing to consent to a blood test overturned.  The second driver, Danny Bernard, Jr., had his conviction for failure to submit to a breathalyzer test upheld.  The third driver, Steve Beylund, who consented to a blood test under threat of criminal prosecution, had his case returned to the trial in light of the holding that a warrant is required for a blood test.

This is clearly a split decision in which the Justice's bargained with each to come up with a consensus decision.  It does seem unfair to criminally prosecute people for exercising their constitutional right to not incriminate themselves and to not have to submit to a search.  Imposing criminal penalties upon people who choose to remain silent seems unfair.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at or call us anytime at 1-800-228-7295.

Wednesday, June 22, 2016

Can The Police Delay A Traffic Stop To Investigate Crimes Absent Suspicion?

In April of this year, the United States Supreme Court handed down a decision in Rodriguez v. United States which places serious limitations on traffic stops conducted by the police.  In Rodriguez the Supreme Court ruled that the police cannot extend the duration of a traffic stop, even for a "de-minimis" amount of time, without reasonable suspicion for reasons unrelated to vehicle and driver safety.  A police officer stopped Rodriguez for driving on the shoulder in Nebraska.  After the officer did everything related to the stop, including checking his license, insurance and issuing a warning, he asked Rodriguez if he would give him permission to walk his dog around his vehicle to check for the presence of drugs.  When Rodriguez refused, the officer told him to wait until a second squad car arrived with the dog.  After the second officer arrived, the officer walked the dog around Rodriguez's vehicle and notified the officer that it had detected drugs.  The officer searched the vehicle and discovered methamphetamine.  Rodriguez was arrested and charged with various federal drug offenses.  Rodriguez filed a Motion to Suppress claiming that the officer unreasonable delayed the stop to investigate other crimes without reasonable suspicion.  The Federal Magistrate, who conducted the hearing on the motion, agreed that there was no suspicion to support detaining Rodriguez but that since the detention only took 7 to 8 minutes, it was "de minimis" and did not infringe on his personal liberty.  The Magistrate recommended denial of the motion and the Federal Judge agreed and denied Rodriguez's motion.  Rodriguez entered a conditional guilty plea and was sentenced to 5 years in Federal Prison.  The Circuit Court of Appeals agreed with the District Court and Rodriguez appealed to the United States Supreme Court.  The Supreme Court held "absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution's shield against unreasonable seizures.  The police authority for a traffic stop seizure ends as soon as soon as the tasks necessary for the traffic stop are completed, or should reasonably have been completed.  So once the officer checks the license, insurance, checks for warrants and issues the ticket, the police officer's authority to detain someone ends.  The case was sent back to the District Court to address the issue of whether the officer had any reasonable suspicion to call for the dog because this issue was never explored by the trial court.  

This case is important because this stuff happens all the time.  The police will pull over a vehicle and once the ticket is issued start asking questions and delay the driver to come up with more evidence. What started as a simple traffic stop quickly evolves into a gun case or a drug case. 

In case you think that this doesn't happen often, there is a similar allegation in a drug case currently pending in Kane County.  On August 13, 2005, a Utah woman was pulled over on I-90 near Hampshire by a Kane County Sheriff's Deputy.  According to her attorney, after she was issued a warning, the Deputy started asking the woman questions that had nothing to do with the traffic stop. The Deputy repeatedly asked for consent to search her vehicle and was repeatedly denied permission. The Deputy called for a drug sniffing dog. The vehicle was eventually searched and heroin was found.  The driver claims that the dog never signaled the presence of drugs but her vehicle was searched anyway.  This case has focused attention on the Kane County Sheriff's Office.  Judges have ruled against the Kane County Sheriff's Office on 3 cases in the past year.  One case involved the strip search of a Minnesota man who was illegally strip searched, a traffic stop of a retired Oregon deputy that was improperly prolonged in 2014, and the stop of 3 Minnesota residents that was improperly prolonged. The Minnesota man who was improperly strip searched and the retired Oregon deputy have filed Federal lawsuits against Kane County and the Sheriff.   The case involving the 3 Minnesota residents has been appealed by prosecutors.

We should expect that the Kane County Board will become concerned about the exposure to legal liability.  On June 17 I posted an article about the Kane County Public Defender appearing at a Kane County Board meeting and asking for funding to hire more assistant public defenders.  During the coarse of the hearing she made a statement that insinuated that criminal defendants were not being properly served.  Her statements immediately caused alarm on the County Board that her comments could be used against the County in future lawsuits.  

We will monitor the situation in Kane County and report on any developments.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at or call us anytime at 1-800-228-7295.

Tuesday, June 21, 2016

Where Do All The Illegal Guns In Chicago Come From?

The gun violence in Chicago has been the source of concern among the citizens and politicians in Illinois for a long time.  Every day we are inundated with news of shootings and homicides throughout the City.  When the weather heats up we know that the number of shootings will go up.  On Monday morning we open the paper to find out how many people were shot and how many were killed over the weekend.  In the effort to come up with a way to stop all the shootings, we need to understand how illegal guns are making their way to the streets of Chicago.  Illinois has some of the most restrictive gun laws in the United States.  To own a gun in your home, Illinois requires that you get a Firearm Owners Identification (FOID) Card which requires that a thorough background search be conducted by the Illinois State Police.  FOID cards can be revoked for good cause by the Illinois State Police.  Citizens are generally not allowed to carry a gun outside their home unless they have an FOID Card and are legally transporting it, or they obtain a Conceal and Carry Permit.  To obtain a Conceal and Carry Permit you have to apply to the Illinois State Police, submit to a thorough background search and supply your fingerprints, and attend and complete gun training classes. Illinois was the last state to allow conceal and carry, and that was only after the Federal Courts ordered Illinois to do this.  In spite of some of the nation's strictest gun laws, Chicago has established a reputation as America's deadliest city.  Chicago Police report that in 2015, over 2,900 people were shot and 470 people were murdered.  So far in 2016, there have been about 311 homicides and at least 1810 people shot on the streets of Chicago.  These statistics, coupled with the strict Illinois gun laws, has become an example cited by gun rights activists to argue that gun control legislation doesn't work.  But a closer look at some of the evidence concerning where these guns are coming from tells us a different story.  

According to the FBI, roughly 60% of guns used in crimes in Illinois were from out of state.  The overwhelming number of those guns flow into Illinois from states that have much less restrictive gun laws.  Most of those out of state guns came from Indiana, which is next to Illinois.  Second place goes to Mississippi and third place goes to Wisconsin.  The FBI data suggests that there's lots of trafficking of guns within Illinois but point out that it's very difficult to trace those guns once they get into the state because Illinois does not require registration of guns, does not license or regulate gun dealers, doesn't limit how many guns can be sold at one time and does not require background searches on gun sales that are not conducted at a gun show.  Indiana has really lax gun laws.  Gun dealers are required to perform a very basic background search while a vendor can sell their "private collection" to anyone at a gun show without any background search whatsoever.  So someone can buy an assault rifle at a Crown Point Indiana gun show without any background search, and drive an hour into Chicago, where assault rifles are banned.  A 2015 study by the University of Chicago suggested that only 11% of guns involved in crimes in Chicago were purchased through federally licensed gun dealers, which require background searches.  In 2014 the Chicago Police reported that roughly 60% of guns used and recovered from crime scenes between 2009 and 2013 were purchased outside of Illinois.  Exact figures are hard to pin down but it is clear that the vast majority of guns making their way to the streets of Chicago are coming from outside of Illinois.  

The significance of these figures is that unless national standards are imposed, there's no law or amount of regulation in Illinois that is going to stop guns from making their way into Chicago and being used in shootings and murders.  Instead of gun rights activists pointing to Illinois strict gun laws to argue that they don't work, they should point to states that have lax gun laws as an example of why such laws are needed to stop, or at least slow down, the rising numbers of shootings and murders in Chicago.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at or call us anytime at 1-800-228-7295.

Supreme Court Upholds Banning Some Types of Guns

Yesterday the United States Supreme Court refused to hear an appeal from the 2nd Circuit Court of Appeals which upheld gun laws in New York and Connecticut which bans military assault style weapons, like the ones used in Sandy Hook in 2012, Santa Barbara a few months ago, and Orlando last week.  The gun laws in question were enacted by New York and Connecticut in 2012 after the school shooting in Sandy Hook Connecticut which took the lives of 20 young children and 6 teachers. Gun rights advocates filed suit alleging that the prohibitions violated the 2nd Amendment and prior Supreme Court precedent which upheld the right of the public to own firearms for self protection.  The 2nd Circuit Court of Appeals, which covers New York and Connecticut, found in favor of the states and upheld the laws which enacted gun prohibitions.  The gun rights activists appealed to the United States Supreme Court.  Yesterday, the Supreme Court refused to hear the appeal, without comment, which has the effect of upholding the ban on assault weapons.  The decision keeps the prohibitions in New York and Connecticut, thought to be the most strict in the country, in place.  This decision sends many signals about the Supreme Court's attitude towards guns.  First, the Court seems to be unwilling to get too involved in the public debate over guns.  The Court seems to see the laws enacted by states as more of a political decision and does not want to get involved in decisions made by legislatures and politicians.  Second, the Supreme Court has made it pretty clear that the right to own a firearm is not absolute and will uphold reasonable restrictions.  And when it comes to what is reasonable seems to be something that the Court is likely to leave to the individual states to decide. This decision is not surprising.  Last December the Supreme Court did the same thing involving a similar ordinance in Highland Park, Illinois, which banned assault weapons.  They refused to hear the appeal of a 7th Circuit Court of Appeals decision which upheld the ordinance.  In 2008, in District of Columbia v. Heller, the Supreme Court upheld the right to own firearms inside one's home for self defense.  But the decision only applied to federal regulations.  In 2012, in McDonald v. City of Chicago, the Supreme Court held that Heller applied to the states.  Since then the Supreme Court has refused to overturn any statute which established restrictions on the right to own a firearm.  The closest they have come to doing this was in March of this year when they overturned a Massachusetts decision which held that stun guns were not protected by the 2nd Amendment and returned the matter to the lower courts for further proceedings.  

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at or call us anytime at 1-800-228-7295.

Friday, June 17, 2016

Kane County Public Defender Asks For More Hires And Raises Concerns

As part of the 2017 budget process, the Kane County Board held a hearing in which the Kane County Public Defender, Kelli Childress, asked for more money to hire 2 more attorneys for her office.  The cost to add 2 attorneys will be $72,000 a year.  In the hearing, Childress claimed that the attorneys in her office have a higher average caseload per attorney than any other neighboring county.  She presented the board with statistics which show that attorneys are only able to spend less than 3 hours on each misdemeanor case they are handling.  She said that the high average caseload along with a lack of investigative resources raises questions about the quality of the legal defense services that her office can provide indigent criminal defendants.  She went on to further state that the lack of resources could cause her attorneys to put pressure on their clients to plead guilty and avoid fighting their cases.  This lack of resources assigns a lower priority to poor people than to wealthy people. Her comments caused a concerned response from the Kane County Board President Chris Lauzen. Lauzen started questioning Childress about whether her comments were opening to door to legal liability for the County for claims of wrongful convictions.  Lauzen asked Childress if there were wrongful convictions in Kane County and Childress answered that she did not know.  Lauzen was not happy with that answer.  Lauzen continued questioning Childress to make sure she was not making some sort of admission that could be used against Kane County in future litigation and Childress obliged.  She clarified that she didn't know and wasn't an expert in such matters but that her office needs more assistant public defenders to stay ahead of that danger.

While I am in no position to question Ms. Childress's statistics regarding the 3 hours that each attorney in her office is able to spend on each misdemeanor, I find it hard to believe that that they are worse off than any other neighboring county.  I find it hard to believe that any Public Defender in any busy metropolitan area is able to spend more than 3 hours working on a misdemeanor case.  The quality of legal services provided to the poor is a huge problem that has never received the attention that it deserves.  It is simply wrong to deny equal justice to people simply based on their economic resources.  Denying justice to poor people diminishes our criminal justice system and puts the entire criminal justice system in jeopardy.  The Kane County Board should not be looking to just do enough to avoid legal liability.  Why not hold hearings to determine what the Public Defenders Office needs to provide the acceptable amount of legal assistance a criminal defendant needs for us to be proud of our criminal justice system?  It's not like criminals will be more likely to choose to commit crimes in Kane County and take the risk of getting arrested and be criminally prosecuted if the County Board provides adequate funding for the Pubic Defenders Office.

The Board has not decided what they will do with Childress's request and will continue to consider their 2017 budget.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at or call us anytime at 1-800-228-7295.

Tuesday, June 14, 2016

Supreme Court Clarifies When a Judge Should Recuse Himself

We are being inundated with news stories about Donald Trump claiming that a Federal Judge of Mexican heritage presiding over a fraud case involving him, should recuse himself from hearing his case because of his ethnic background.  This story is dominating the news and sparked a partisan debate over when a judge should recuse himself.  Well, the United States Supreme Court just decided a case involving when a Judge should recuse himself.  In 1986, Ronald Castille was Philadelphia's District Attorney.  Terrance Williams and a friend, both 18 years old, had been charged with murdering Amos Norwood with a tire iron.  The Philadelphia District Attorney's Office was considering whether to proceed with the Death Penalty against Williams.  A subordinate of Castille recommended that they proceed with the Death Penalty against Williams and Castille signed off on doing just that.  Williams was eventually convicted of Murder and sentenced to death.  Later on Castille ran for a seat on the Pennsylvania Supreme Court and while he declined to take a public position on the death penalty he claimed to have sent 45 people to death row when he was the Philadelphia District Attorney.  Williams happened to be the first.  In 2012 Williams filed an appeal claiming prosecutorial misconduct by the office that Castille had once led.  Williams claimed that evidence had been withheld from his attorneys which would have supported his claim that the victim had abused young boys, which supported his claim that the victim had abused him.  Williams filed a motion requesting that Castille recuse himself which Castille denied.  A lower court granted Williams's request, and two weeks before he retired. Castille joined a unanimous Pennsylvania Supreme Court which overturned the lower court decision and reinstated Williams's death sentence.  Castille subsequently stated that he was simply acting in an administrative capacity in the case when he was the District Attorney and didn't try the case.

Williams appealed Castille's denial of his request that he recuse himself, and last Thursday, in a 5 to 3 decision, the United States Supreme Court agreed with Williams that Castille should not have taken part in the decision.  In the majority opinion authored by Justice Anthony Kennedy, the Court stated that "Chief Justice Castille's significant, personal involvement in a critical decision in Williams's case gave an unacceptable risk of actual bias."  Even though the entire Pennsylvania Supreme Court agreed with Castille, the Supreme Court did not think Castille should put them in a position of having to inquire what impact his opinion had in the decision making process.  The Supreme Court ordered the Pennsylvania Supreme Court to rehear the appeal.  

The case is Williams v. Pennsylvania, No: 15-5040.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at or call us anytime at 1-800-228-7295.

Positive Expungment Changes On The Horizon

The Illinois legislature has passed a bill that would remove expungment fees in Cook County for people who were never convicted.  This is one of the most promising and positive changes to the expungement process.  If you are arrested and your case is dismissed or you are found not guilty, even though you technically do not have a criminal record, a public record of the case exists and the only way to remove that public record is to petition the Court to expunge, or to remove the case from the public record.  The expungment process can take several months, and depending on the county the case was in, could cost you several hundred dollars.  House Bill 6328, which was passed in the last legislative session, would establish a pilot program in Cook County which would remove fees for cases resulting in "release without charging," or an arrest which resulted in dismissal, acquittal or a conviction that was later overturned.  An earlier version of the bill would have applied to every County in the State but received resistance from the Illinois State Police and Court Clerks who objected to the loss in revenue from the expungment fees paid.  In a compromise measure the legislature established this pilot program which only applies to Cook County for now.  It is somewhat offensive that government should profit from fees that innocent people have to pay to clear records that should never have existed to begin with.  But in spite of the unfairness, this bill is a significant measure which will affect the lives of many people.  Of the 70,000 people who enter Cook County Jail every year, roughly 12,000 of them end up having their cases dropped or are found not guilty.  There's no way to know how many more people have their cases dismissed, dropped or found not guilty who never entered Cook County Jail.  This is really important because even though all these people were not convicted, the charges remain a public record which could make it very difficult to get a job.  We frequently get calls from people seeking to expunge their backgrounds because they can't get a job and consequently have no money to pay the fees needed to clear their record.  It's a viscous circle which is just plain wrong and unjust.  Hopefully this bill will be seen as a giant step in fixing a giant injustice.

The bill is awaiting the Governor's signature.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at or call us anytime at 1-800-228-7295.