Monday, October 29, 2012

WHEN DO I GET MY MIRANDA RIGHTS? POLICE CUSTODY DEFINED

You’ve seen the police shows. After cornering the suspect, the cop begins to read the Miranda rights: “You have the right to remain silent…. You have the right to an attorney….”

But when is the officer required to read you your rights? Before asking your name? When you are stopped for a traffic ticket? When you are handcuffed and put in a squad car?

The Miranda Supreme Court case requires that these warnings be given when an individual is in custody and before questioning begins. In other words, if a reasonable person in your circumstances would believe that they are not free to go, then the police must read the rights before further questioning. So, how do you know if you are free to go?

Unfortunately, there are no hard and fast rules, but there are guidelines. Whether the police have you in custody can depend on the facts of your case. Illinois statute defines custodial interrogations as “any interrogation during which (i) a reasonable person in the subject's position would consider himself or herself to be in custody and (ii) during which a question is asked that is reasonably likely to elicit an incriminating response.” 725 ILCS 5/103-2.1(f).

The Illinois Supreme Court further defined whether a person would feel free to go:

“1) the location, time, length, mood and mode of the questioning; 2) the number of police officers present during interrogation; 3) the presence or absence of family and friends of the individual; 4) any indicia of a formal arrest procedure, such as the show of weapons or force, physical restraining, booking or fingerprinting; 5) the manner by which the individual arrived at the place of questioning and 6) the age, intelligence and mental makeup of the accused.”

(People v Harris citing People v Slater).

If you are stopped by the police and unsure if you want to answer questions, ask “Am I free to go?” If the answer is no, then it’s time for the officer to read your rights. Once you are in custody, be sure to say: “I want to remain silent. I want an attorney.” Otherwise, the questioning can continue. See our related post: Your Right To Remain Silent Under New Supreme Court Law.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Monday, October 8, 2012

"THE OFFICER JUST SAW IT!": PLAIN VIEW EXCEPTION TO POLICE SEARCHING WITHOUT A WARRANT

You failed to use your turn signal so the police officer pulled you over. After making the stop, the officer noticed some spoons and straws sticking out of your visor. The officer opened the visor. As it turns out, you stashed a little cocaine up there too. Now you are under arrest.

Can you fight the results of the search?

In Illinois, the police generally need a warrant to search you, your home or your car unless they spot evidence in plain view. The police must be somewhere they have a right to go. They cannot barge into your bedroom and look around. But if they stop you for speeding and notice a bag of pot on the front seat of your car, the police may have grounds to search.

While courts usually find a reason to uphold a search, not everything a cop does is permitted. In a recent Illinois appeals case, the officer stopped a defendant for throwing a can out his car window. When the officer ordered the defendant out of the car, she noticed a knotted plastic baggie sticking out of his pocket. The baggie turned out to contain drugs. Nevertheless, the appeals court held that spotting the baggie did not justify the search.

The court noted that objects such as spoons, straws, mirrors and baggies are often used in drug dealing. Allowing police to search based on the presence of one of these items would lead to the type of random searching forbidden by the Constitution. The police have a basis to search only if the incriminating nature of the baggie or spoon is immediately apparent, for example, some of the powder is visible in the baggie.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. If the officer’s search is questionable, an attorney may be able to bring a motion before the judge to have the results of the search thrown out.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

Source: People v Cesar Garcia.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.) .

Monday, October 1, 2012

MY GIRLFRIEND LET THEM IN! WHEN A VISITOR LETS POLICE SEARCH YOUR HOME

You had some errands to run so you left your house. Your girlfriend often stays with you. She even has a key. Or maybe it was a visiting relative or a housekeeper or someone who watches your child. In any case, the police knocked on your door, and that person agreed to a search. The police found the drugs, and now you are charged with possession/dealing.

Can you get evidence from the search thrown out? After all, the person who consented doesn’t live in your home.

The answer depends on the particular facts of your situation. Illinois law considers how much authority the non-resident had over your home. Is the person more like a neighbor with a key or more like someone who spends a lot of nights? If it’s your girlfriend who has the run of your house, then the search is valid. If it’s a neighbor with a key or a house cleaner, the court would be less likely to uphold their consent. The neighbor or the house cleaner are generally only authorized to invade your privacy to perform their particular purpose. For example, a housekeeper does not have a general right to invade your privacy except as necessary to clean your house. A neighbor with a key is not an invitation to search your drawers.

Illinois courts suppressed a search where a former roommate no longer lived with Defendant even though she sometimes stayed overnight. However, the Court recently upheld the consent of a niece who babysat the defendant’s child and had authority to go into the closet where the cocaine was found.

If you are charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case to see if the search can be overturned and the evidence suppressed. Even if the search is valid, there may be other avenues for your defense. Perhaps the police lacked probable cause to search in the first place. Even if the evidence against you is overwhelming, an attorney respected in your courthouse may obtain a better plea agreement than you could on your own.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)