Friday, November 22, 2019

CAN MY OUT-OF-STATE CONVICTION BE USED AS A PRIOR OFFENSE IN MY ILLINOIS CRIMINAL CASE?

The police arrested you for a felony in Illinois. The prosecution wants to use your prior conviction in another state to upgrade your charges or increase your sentence. Can they do that?

The answer depends on the specific law involved. An Illinois criminal or DUI statute may refer to whether you have been convicted under the laws of Illinois or any other jurisdiction. A court must look at your prior offense in the other state and compare it to the language of the charges against you.

In People v. Schultz, the court examined whether a defendant’s two Michigan convictions were forcible felonies for sentencing purposes in Illinois. Defendant was charged in Illinois with unlawful possession of a weapon by a felon. In Michigan, he was convicted for assault with a dangerous weapon. First, the court looked at whether “assault with a dangerous weapon,” was specifically listed under the Illinois definition of “forcible felony.” The court found it was not. However, the Illinois definition further included “any other felony which involves the use or threat of physical force or violence against any individual.” The court then examined the elements of the Michigan crimes to determine whether the use or threat of force was necessarily involved. The court found that it was. As a result, the defendant was sentenced as a Class 2 rather than Class 3 offender.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Can the state prove your prior offense truly falls within the charges against you? An experienced attorney may be able to find a weakness in the law. Even if the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois 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, November 18, 2019

CAN THEY PROVE I HAD A GUN?

After a car accident, you and the other driver started argueing. You grabbed your cell phone, but the other driver told police you had a gun. You did have a gun in your glove compartment, but you never removed it. Now you are charged with unlawful use of a weapon.

Is the other driver’s testimony enough to convict you? An Illinois court says not necessarily.

In People v. McLaurin, an officer testified that she saw the defendant, a convicted felon, carrying what appeared to be a silver handgun when leaving an apartment building. The officer could not describe the gun or say whether it was a revolver or semi-automatic. A gun was later found under a nearby vehicle.

The court held that where the sole basis of an offense is possession of a firearm, possession of that gun cannot be inferred from circumstantial evidence. Rather, the state must prove beyond a reasonable doubt that the defendant possessed a firearm as defined under Illinois law. The state failed to prove that the officer had in fact seen a firearm, and thus defendant’s conviction was overturned.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. As with most crimes, the state must prove all the elements of the offense beyond a reasonable doubt. An attorney can probe for weaknesses in the state’s evidence: Can the witness see well? How far away was the supposed weapon? Can the witness describe what they saw? Even if the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois 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.)

Friday, November 15, 2019

WHAT IS AGGRAVATED CRIMINAL SEXUAL ABUSE IN ILLINOIS?

In Illinois, a charge of criminal sexual abuse can be upgraded to a Class 2 felony if during the offense:
  1. You use a dangerous weapon or other object such that the victim reasonably believes you have a dangerous weapon;
  2. You cause the victim bodily harm;,/li>
  3. The victim is age 60 or older or has a physical disability or severe intellectual disability;
  4. You threaten or endanger the victim or some other person’s life;
  5. The sexual conduct is committed during the course of any other felony;
  6. You drugged the victim without their consent or by threat or deception;
  7. You committed a sex act with a family member under age 18;
  8. You are at least 17 and the victim is under age 13 or you used or threaten force on a victim who is at least 13 but under age 17;
  9. You are under age 17 and the victim is under age 9 or you use force or threaten force on a victim who is at least age 9 but under age 17;
  10. The victim is at least 13 but under age 18 and you are over age 17 and hold a position of trust or supervision such as a teacher or security guard.

See 720 ILCS 5/11-1.60 Aggravated Criminal Sexual Abuse.

If you have been charged with a sexual offense, contact an experienced criminal law attorney immediately. An attorney can review your case for your best possible defense. As with most crimes, the state must prove all the elements of the underlying sexual offense as well as any aggravating factors beyond a reasonable doubt. Can the state accurately identify you? How reliable is the witness’s recollection of events? Is there any possibility you were falsely accused? Was the evidence against you properly handled? Even if the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois 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.)

Friday, November 1, 2019

CAN POLICE USE A DOG TO SEARCH OUTSIDE MY MOTEL ROOM WITHOUT A WARRANT?

UPDATED: August 4, 2020

You are staying at a motel. You heard some people with a dog outside your room, but you thought nothing of it. A little while later, the police were at your door. The dog you heard earlier was part of the canine unit, and now police want to search your room.

Can they do that? What can you do?

The Fourth Amendment of the constitution guarantees you the right to be free of unreasonable searches or seizures. The police need probable cause or a warrant to perform a search although there are some exceptions. When you are in a hotel or motel, you have the same expectation of privacy in your room as you would have in your own home. Therefore, the police must obtain a warrant in order to search.

But what about outside your home or hotel room? Police may still need to obtain a warrant depending on if the area searched is within the "curtilage" and whether you have a reasonable expectation of privacy.

To determine if the area to be searched is part of the curtilage, the court looks at four factors: 1) the proximity of the area to the home, 2) whether the area is included within an enclosure surrounding the home, 3) the nature of the uses to which the area is put, and 4) the steps you took to protect the area from observation by people passing by.

For example, in People v. Lindsey, police used a dog to sniff the door handle and seams of defendant’s motel room. The dog alerted police to the presence of heroin, and the police returned with a warrant. The appellate court found the dog sniff violated the Fourth Amendment and overturned defendant’s conviction. However, the Supreme Court reversed this decision.

Applying the four factors, the Supreme Court found that: 1) the alcove was equally close to defendant's as well as a neighboring room; 2) the alcove was not within an enclosed area surrounding the room; 3) the alcove was not put to personal use by the defendant but was accessible to the motel's staff and public at any time; and 4) the defendant had taken no steps to shield the alcove from observation by other motel guests or the public.

The court next considered whether the defendant had a reasonable expectation of privacy. The court considers: 1) the person’s ownership or possessory interest in the place, 2) the person’s prior use of the place, 3) the person’s exclusive control of the place or ability to exclude others from it, and 4) the person’s subjective expectation of privacy. The court concluded the defendant had no reasonable expectation of privacy in the area outside his motel room. Therefore, the dog sniff was legal.

If you are the subject of an unlawful search, an attorney may be able to petition the court to suppress the evidence found in the search. The results of an illegal search are known as “fruit of the poisoned tree.” If police have no other basis for your arrest, your case could be dismissed.

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

Source: People v. Lindsay.

(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.)