Preliminary Hearings: Make The Best of Losing

In Illinois a defendant in custody for a felony has the right to a preliminary hearing within 30 days of arrest. Or they can be indicted by the grand jury during that same amount of time. The purpose of a preliminary hearing is to determine whether or not probable cause exists to bind the case over...in other words is there enough evidence to allow the State to bring formal charges. The grand jury determines the same thing.

Probable cause for purposes of a preliminary hearing is not the same type of probable cause to arrest or search. This confuses a lot of people and understandably so. The inquiry of a preliminary hearing is twofold: a. Was a crime more likely that not committed, and b. did the defendant more likely than not commit that crime. That's it. The burden on the State to get a case through a preliminary hearing is very, very low.

As a defense attorney it is very hard to win preliminary hearings. I see attorneys with 30 years experience lose all the time. Fortunately in the city of Chicago most drugs cases (crack, heroin, and cocaine) get a no probable cause finding if the amount in question is under .7 grams. Each judge has his/her own cutoff, but under .7 grams is pretty safe in any city court room.

You can get hired to represent someone caught with .2 grams of crack, not ask one question at the preliminary and the case gets thrown out. Somehow we look like great attorneys for doing nothing other than standing there. Hey, a win is a win in this business. 

The suburbs, however, are a different story. I have a case in Markham dealing with .2 grams of cocaine. That arrest occurred on January 1, 2009 and the case is still pending. I filed a Gant motion which got continued three times because there was no judge. I ultimately lost that motion because the officer suddenly remembered the cocaine was in plain view, thus Gant is inapplicable. Plain view and inventory searches will be the end run around Gant. Predictable, if nothing else.

There is no formal discovery at the preliminary hearing phase. In city of Chicago cases we get to briefly review the arrest report immediately prior to the hearing. At least we know basically what the cop is going to say. And they testify the same way every time because they get asked the same questions every time.

If you do enough of these hearings you start to hear buzz words and phrases repeated, such as "hand to hand transaction", "furtive movement", "attempted to conceal", "white powder, suspect cocaine", "in plain view" and "high narcotics area."

And we defense attorneys ask the same questions: "How far from the defendant were you when you first saw him?", "Were you on foot or in a vehicle?", "Were you in uniform?", and "When you were in pursuit of the defendant did you ever lose sight of him?" The cops are programmed to give answers that make the answers to these questions support the arrest. Every now and then you can catch one slipping, but it's often not enough to win the hearing. The cops are given the benefit of the doubt.

Although we are on cross and get to ask leading questions, it's more of a discovery hearing. You can ask the leading questions such as: "When you approached the defendant you ordered him to stop, correct?" "He was compliant with your command?", "You next performed a protective pat down?", "And you found nothing illegal on the defendant's person during that protective pat down?" Obviously I am asking questions to which "yes" is the only allowable answer.

Although we lose most preliminary hearings, they can be useful to the defense of the case. Get the cop on the record. Elicit facts from the cop that will possibly support a motion to quash and/or suppress in the trial court. Live to fight another day I say.

I had a preliminary hearing this morning where my client was allegedly caught with a pistol during a Terry stop. I knew when I read the arrest report it was a loser at this stage. But I thought ahead to my motion to come later because I didn't see any probable cause for the stop. Once I felt I had a losing case at this stage, all I could do was make a record. And I did get some very favorable facts from the testifying officer. Here is what I got him to admit or say.

He was not in uniform and was in an unmarked car.
He was not conducting surveillance.
Upon driving by a corner he saw my client talking to two other young males.
He saw the three people standing on the corner for maybe 2 seconds before stopping the vehicle. 
When the police car stopped, my client walked away down the sidewalk.
At that time neither my client, nor the other two, were breaking any Federal, State, or local laws.
When he saw my client he could not see a pistol on his person.
When he saw my client he couldn't see anything protruding from his clothing.
When my client walked away he did not run.

As I am getting all this on the record, the cop is only thinking about the preliminary hearing. He's giving the answers he's programmed to give. He thinks he's safe. After the hearing he won't think I scored any points because the State won. But he is not thinking about the motion hearing in 4 months. I am. 

He will be subpoenaed to testify about an arrest he won't remember. And when he is being prepared to testify by the prosecutor, it will be obvious there is testimony on record by this officer that supports my motion.  

If you're in the defense business, you can see where I am going with this. The officer found the pistol during a Terry stop and frisk. But what was the basis for that stop? My argument will be the police drove by, saw three young male blacks standing on a corner, and wanted to search them. I know that's what happened. The cop knows that's what happened. And this is illegal under the 4th Amendment. Or so I will argue.

At one point during the officer's testimony where he was creating fiction, the judge and I locked eyes and rolled them simultaneously. It was beautiful. And after he made a finding of probable cause he yelled "good luck on your motion" as I was leaving. Ha! He knew the arrest was crap. I knew it was crap.

Is it more likely than not my client had a pistol on him? According to the judge, yes. Was the Terry stop valid? Well, that comes next.

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Felony Probation Violations

A violation of probation [VOP] can be very problematic for criminal defendants and their attorneys. A VOP is any violation of the conditions (or rules) of the probation. There are different types of probation, but I am referring to the many types of felony probation, i.e., gang, intensive, drug (T.A.S.C), or straight felony probation.

These different types of probation have different rules such as curfews, drug testing and counseling, obtaining a high school diploma or GED, anger management therapy etc. Along with monthly reporting to a probation officer and the payment of monthly probation fees, the list of rules one must comply with can be quite lengthy. But, probation is an alternative to prison. No one I have represented has complained too loudly about the conditions of their probation when the other choice is a lengthy prison sentence.

The most common type of probation violation I see is being arrested while on probation. Or in other words, "catching a new case". The probation department has discretion when filing a petition for violation of probation. If violated for a recent arrest, a defendant now has two cases to fight and sometimes in two different court rooms in front of two different judges. Additionally, most people arrested for a felony while on felony probation are held with no bond.

I have seen defendants violated the day after their arrest while others are not violated until after they lose their preliminary hearing. As a side note, parole violations work similarly.  Last winter I was hired to represent an 18 year old that allegedly broke into an automobile and was arrested for burglary. When I took the case the client was in custody at the county jail. I won his preliminary hearing and told his parents he would be released from custody sometime that day. I was not expecting a call from the parents the next morning asking why he was not released.

What I didn't know what that he was on felony probation and had been violated the day after his arrest. We defense attorneys don't often know our client's entire criminal background until the arraignment. In Illinois there is no formal discovery at the preliminary hearing stage. What discovery we do get is merely a sneak peak at the arrest report a few minutes before the hearing. It's not much, but at least we know some basics about the arrest.

The next court date for his VOP was not until a week later. He could not be released from jail because he was on a VOP hold. Although not paid, I appeared on his behalf at the VOP court date where the probation department withdrew the VOP petition and finally on that day, he was released from custody. Typically if the case that violated the probation goes away, so does the VOP.

A short time later I was hired to represent a man charged with two counts of delivery of a controlled substance, both class 1 felonies. The police were given a tip by a confidential informant that my client was selling drugs from inside a parked car. The police arrived to find my client sitting in his car talking to a young female. That was it. He was pulled out of the car, searched, and arrested. Both cocaine and heroin were allegedly found on him.

At his preliminary hearing the cop admitted no officer ever observed my client committing any crime; however, probable cause was found and the case was bound over. At the trial court level I filed a motion to quash and suppress based on no probable cause.

What I did not know was that my client was on probation, a fact he failed to disclose and was not noted in his criminal background. When I filed my motion the judge asked the State if they wanted to set the motion for a hearing. The assistant State's attorney declined, informing the judge they were electing to prosecute the probation violation. Not until that morning did I find found out he was already on probation. Now we have a problem.

A defendant is entitled to a hearing on a probation violation. But the standard of proof is preponderance of the evidence, or more likely than not. The standard of proof at trial, however, is beyond a reasonable doubt, or almost 100% sure. There is a huge legal distinction between these two. The State knew I had a good motion on the new case and thus chose the easy VOP route.

I had a 402 conference with the prosecutor and the judge. The judge told me he would rule against me at a hearing on the VOP. At least he was honest and upfront about it.


The client was on probation for a class 1 felony, thus he was subject to a prison term of 4-15 years on the prior case. But here is where it can get ugly: the judge could sentence a defendant to consecutive sentences on each case. 

A guilty plea or guilty verdict of a new felony while a defendant is already on felony probation exposes him to a prison sentence on each case but ran consecutively. For example, two 4 year sentences ran consecutively equals 8 years  (4 + 4 =8). In distinction, however,  are concurrent sentences which means the sentences are served at the same time. So in the above example, it would be a total of 4 years as opposed to 8. In the defense business, we always want concurrent sentencing.

The judge offered to PTU (probation terminated-unsatisfactory) the prior case and give my client 6 years on the new case. This in effect, ends the case for which he was on probation. That is, however,  a small victory because now he is only being sentenced on one case.

 

Today I was in court on a new case where there was also a VOP filed. My client was charged with being a felon in possession of a firearm. In this case the charge was a class 3 felony (2-5 years). However, he was on probation for a class 1 felony (4-15 years).

The new case might have been defensible by way of a motion to suppress. It was a case that could have been worked up. However, as mentioned above, the State could simply elect to prosecute the VOP. And why not? The burden of proof is lower and the prison term is longer in this case. 

 

I explained all of this to the client when I met him in the jail on a recent Sunday. He wanted to plead guilty. He did not want to sit in jail while I litigated his case. He did not want continuances. He wanted to cop out and do his time. It was clear I was hired to get him a deal. And so, I got him a deal.

I ended up getting his class 1 probation PTU'd and the minimum 2 year prison sentence on the new gun case. After you subtract the month he's been in the county jail, he is going to go to prison for around 90 days or even less.

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Judge's Advice: Try The Case

One of my clients was charged earlier this year of being a convicted felon in possession of a firearm. His vehicle was allegedly involved in a crime in another local jurisdiction, thus an area wide lookout was issued.

A couple of weeks later, my client was pulled over by Chicago Police. His vehicle was driven back to the district headquarters and searched. In the trunk inside a black gym bag were some clothes and a small, semi-automatic handgun. At no time was a search warrant issued for my client's car, nor did he give consent to the search. Additionally, to date he has not been charged for the other crime either.

I filed a motion to suppress the handgun and the court conducted a hearing on my motion in late September. I called the arresting officer as my sole witness. I argued a 4th amendment violation but the court denied my motion. The court stated if the arrest was valid, the subsequent search of the vehicle was as well.

On the next court date I filed a motion to reconsider and cited Illinois case law that held closed bags found inside a car cannot be searched without a warrant. It's very complicated, but I felt the cases I cited were directly on point.

The court continued the case to read my motion and hear argument. Today my motion to reconsider was denied, thus the gun stays in. In this case the State's plea deal offer was not acceptable to my client. Therefore, I requested a 402 conference with the judge.

A 402 conference is when the State's attorney, defense counsel, and the judge meet to discuss a possible plea deal. The judge is told about the case in a light most favorable to the State along with the defendant's criminal background. Defense counsel offers mitigation material such as employment status, educational background, family structure and so forth. Simply, we defense attorneys attempt to offer reasons to go easy on sentencing.

In this case, the judge already knew the facts but he didn't know my client was Class X mandatory by background. This is again complicated, but because of some old convictions my client is subject to mandatory Class X sentencing in this case. A Class X prison sentence ranges from 6 to 30 years! The State initially offered 8.

The judge said he would give my client the minimum 6 years if he plead guilty. Ok, it doesn't get any better than that at this point. From 8 to 6 years is progress.

I was shocked, however, to quickly learn the judge and I were thinking the same thing: preserving my client's appeal rights. A guilty plea waives most appeal rights, but they are preserved upon a conviction if proper trial objections are made and other really technical stuff. 

In the past, and in situations like this, courts conducted brief stipulated bench trials. In short, facts sufficient to support a finding of guilty were agreed upon by the State and the defense. The facts were read into the record and the judge made a finding of guilty. But, the defendant never actually plead guilty. By proceeding in this manner, the defendant's appeal rights were preserved.

The judge advised me to put the case on, which means to take it to trial. 

I was informed by the judge the higher courts now completely disfavor stipulated bench trials. Ok, plan B. Jury trial? I told the judge if I take a bench trial, it's an automatic guilty. But with a jury I have some chance. After all, the State must prove my client knew the handgun was in his trunk (he did not) as the words "knowingly possess" are in the statute.

The judge smiled and said "ok, do a jury trial." The first thing I thought was how much jury tax as it risk? Jury tax is the amount of years a judge adds to a sentence after the plea deal offered in the 402 conference is refused and followed by a guilty verdict from the jury. Although jury tax is not mentioned anywhere the criminal code, it does exist.

In this case, he said he wouldn't go more than 6 years. Nice. To my client here are the options:

A. Plead guilty, give up your appeal rights, and get sentenced to 6 years.

or

B. Go to trial and possibly get acquitted; or if found guilty, get sentenced to 6 years with your appeal rights preserved.

Not much of a choice, really.

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Appearance Welcomed With Open Arms

Last night I posted about my new case where the client was about to proceed to jury trial pro se. He changed his mind when it was clear that might not be a good idea.

This morning the only thing left to do was ask the judge to let me file my appearance. But before the judge was on the bench I spoke with the assistant State's attorney to inform her I was stepping up on the case.

To say my appearance was welcomed would be an understatement. She and the rest of her partners were actually ecstatic. And to show her appreciation I was given a big box full of discovery. Nice. I love paper.

In all seriousness the State was very happy to see an attorney on this case. With up to a minimum of 62 years in prison possible, perhaps they wanted a fair fight. Or maybe they didn't want to try the case again if it came back on appeal.

I was also pleased to find there were two exculpatory witnesses in court under subpoena. After appearing before the court I spoke with the witnesses who have great testimony to give and want to give it.

I am now on the case and on the surface it appears defensible. This is, however, a preliminary observation. Much work needs to be done before I can assess its strength.

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Defendant Advised Not To Proceed Pro Se

I was recently hired (last night) to represent a man charged with multiple counts of attempted first degree murder along with some gun charges. The defendant is in custody at Cook County Department of Corrections and his case is pending in one of the felony trial courtrooms at 26th & California.

Most of my cases are felonies and most clients are in jail. Therefore, I am usually hired by the family and rarely meet the client before I am retained.


This morning, I met my newest client.

In Latin, pro se means "for himself." In the legal world it's used to define someone who acts as his or her own attorney. I was surprised to learn my new client was proceeding in his case pro se. I was further surprised when he told me his case was set for jury trial on Monday (tomorrow). Many appeals are filed from prison pro se, but not many defendants go through a criminal jury trial representing themselves.

He was slightly hostile with me, but not rude or mean. He wanted me to know he's innocent, has a winnable case, and doesn't want to rot in the county jail while his case is pending. I completely understood. If I were innocent, I wouldn't want to be locked up either. I would demand my day in court, just as he has.

I was invited to come to court tomorrow and help him with the trial. I had to explain there was no way I was doing his jury trial tomorrow morning. I could not be prepared for a felony jury trial on my first court appearance and he understood.

He had decided to proceed pro se rather than use the free public defender because, he claims, the free attorney never spoke to him about the case. Rather, the case was just continued repeatedly. If you're sure of your innocence and want out of jail, coming back to court every 30 days without progress must be beyond frustrating.

I certainly have no objection to a criminal defendant being his own attorney if he knows what he is doing and there in lies the rub...he is not an attorney. However, it's the defendant's right...well, sort of. The trial court, ultimately, has the discretion to deny or grant a defendant's request to proceed pro se. Such a request is only allowed with great reluctance. In fact I have seen it denied more than allowed. Personally, I think  a criminal defendant representing himself during his trial is a bad idea.

Trials with pro se defendants are typically very problematic for the trial court. Most pro se defendants do not know the rules of evidence. If you do not know how to lay foundation to introduce a piece of evidence or how to properly impeach a witness, for example, it's going to be a very long trial.

The judge is going to get extremely tired and frustrated. And I imagine the jury will not be happy having to watch a trial that is constantly being interrupted by objections and admonishments by the judge. This happens enough during a normal trial. I have never seen a pro se defendant in trial. But I have seen pro se defendants in court attempting to argue a motion, and it's hard to watch.

Although I do not know the statistics, I am sure the outcome for most pro se jury trial defendants is not good. However, it could be quite compelling as a juror to see and watch the defendant plead his innocence in closing arguments. But I digress.

I wouldn't want to see anyone go to trial with a case that's not ready. This is especially true when a guilty verdict could mean a few decades in prison. Instead of walking out and wishing him luck, I chose to talk to him a little about his case and answer any questions he might have. And he was more than willing to talk to me. He wanted to convince me of his innocence.

We began to discuss his case. In an attempt to help, I asked if he had certain items of discovery he's entitled to. He did not. It quickly became clear to me his case was not ready for trial for several reasons. The most fatal reason: discovery is no where near complete. For example, he did not have criminal backgrounds of the state's key witnesses (the victims), thus lacked potential impeachment material. And based on the case facts, I am sure there is background to be had.

While he may not have had all of the discovery, he did have a sound trial strategy and knew how he wanted to present his case. He cited me a number of material inconsistencies in witness statements and explained the bias of the victims against him. Inconsistency and bias are great cross-examination tools, so is impeachment by prior bad acts I pointed out. The client is no dummy. He knows where to attack, just not how.

After about 10 minutes he decided to let me handle his case in lieu of proceeding pro se. I never said or implied he was incapable of handling his own case (though I have my doubts as any other attorney would). I simply told him discovery was incomplete, thus his case was not ready for trial. And I stressed there was more work needed to prepare his defense.  Once he realized I was right, he decided to slow down and let me prepare the case correctly. Now we have to ask the judge to allow me to file my appearance tomorrow morning. I doubt it will be a problem.

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The Not So Grand Jury

When I have to tell a client or their family the grand jury has indicted their case I often get a reaction that I equate with the sign of impending doom. It's almost as if I have told them they have terminal cancer and only 90 days to live. Yes, sometimes the reaction is that strong. I have even been asked "does that mean I am guilty?" No. It doesn't.

What is a grand jury in Cook County, Illinois? It's 12 people. How are they selected? The Illinois Criminal Code (specifically 725 ILCS 5/112-1) reads: Selection and Qualification. The grand jurors shall be summoned, drawn, qualified, and certified according to law.

In Cook County new grand juries are seated the first Monday of the month and no more than 6 grand juries can be convened at one time. What do they do? They are supposed to hear evidence and when appropriate, issue indictments or "true bills".

Let me back up and provide a little background. In Illinois a felony can be charged one of two ways, either by information or indictment. Both roads, however, end up at the same place, the felony trial courtroom. It does not matter which way the State took to get you there, once a charge if filed the procedure is the same. The defendant is arraigned (formally charged). Discovery begins. Motions are filed. Hearings are conducted. And some cases go to trial but most are plea bargained, which is the criminal equivalent to a civil settlement. Some cases plead out at the arraignment. Others take years to reach a disposition.

We in the criminal courts business use the word "disposition" to mean the case is done being litigated. A guilty verdict is a disposition. A not guilty verdict is a disposition. A guilty plea is a disposition. A dismissal is a disposition.

Cases charged by information are done via a preliminary hearing (see earlier posts for a more detailed explanation). If the judge presiding over the hearing determines there is probable cause, the defendant is charged by information. A preliminary hearing, however, is an adversarial proceeding. What this means is that the defendant is there and so is his or her attorney. The defendant has the right to confront (cross-examine) the accuser, which is usually a police officer.

The typical crimes that are charged via information through the preliminary hearing system are: drugs, guns, and retail thefts. In 2009, however, due to a new State's Attorney being elected in November 2008, the State has reduced the number of cases they are submitting to the grand jury. Earlier this year I observed a trend. If the crime involved a victim (such as robbery or aggravated battery) it went to the grand jury. This summer, however, I started to see robbery cases go through preliminary hearings and the victims coming to court to testify.


I recently had a shooting case that went through preliminary hearing with a detective as the lone witness.

The really violent crimes, such as murder, attempt murder, aggravated battery with a deadly weapon, etc go through the grand jury. What's the difference between a grand jury proceeding and a preliminary hearing? The defendant is not present at the grand jury. In fact, there isn't even a judge. Defendant's attorney is also not present. It's 12 jurors, court reporter, assistant state's attorney, and a witness. That's it. Grand jury proceedings are secret, but I do get transcripts of the proceedings during discovery.

Here's the point of the post. Grand jury proceedings are largely a sham covered up by a noble sounding name. The grand jury has subpoena power but in my experience, rarely exercises it. Any juror can ask a witness questions, but again it rarely happens. The grand jury is supposed to be an investigative body but they just sit there and must be extremely bored. Most grand jury transcripts are less than 6 pages, including the court reporter's certification. Here is an example of a typical grand jury proceeding after the witness is called and sworn:

An assistant state's attorney is asking the questions.

Q. Detective, can you state and spell your name, give your star number and unit of assignment?

A. Detective John Smith. S M I T H. Star # 999, Area 5, Robbery.

Q. Did you have occasion to investigate an armed robbery that took place at approximately 5000 W. Grand on July 1, 2009?

A. Yes.

Q. And through your investigation did you learn Mike Defendant was identified by witnesses as the assailant?

A. Yes.

Q. And through your investigation did you learn a handgun was used during the robbery?

A. Yes.

Q. Did this robbery take place in the city of Chicago, Cook County, Illinois?

A. Yes.

Then the assistant state's attorney asks if any of the jurors have questions (and they usually do not). The grand jury can retire to deliberate much like a trial jury, but again it rarely happens. Instead the foreperson says "true bill". Once those words are spoken, formal charges are filed via indictment.

I don't know if the jurors whisper among themselves because it's never recorded. Maybe they nod or give a thumbs up. But it only takes 9 out of the 12 to issue a true bill. As a comparison, a criminal trial jury must be unanimous to convict. And criminal trial juries in Illinois are also comprised of 12 jurors.

It's evident that grand jury proceedings are a slam dunk for the State. The State only has to introduce enough evidence for an indictment, which isn't much. And most of the testimony at grand jury proceedings is hearsay because the rules of evidence do not apply. Remember, there isn't a judge present.

The State will never elicit a fact favorable to the defendant. The grand jury, although intended to be an investigative body, are laypeople that know almost nothing about investigating any crime, let alone a serious one such as homicide.

Throughout the course of an investigation sometimes the detectives get information from a witness that is favorable to the defendant. Such people are never called before the grand jury and the detective will not mention these witnesses exist. The assistant state's attorney isn't going to ask the question and the grand jurors don't think to. It could be so simple too.

A juror could ask:

Q. Detective, during your investigation did you get information that someone else other than the defendant was the assailant?

A. Uh, well...yes.

Oops. Assuming the grand jury system worked, that question might open a huge can of worms for the State. Once the name of an exculpatory witness is known, the grand jury should issue a subpoena and hear what the witness saw. It never happens.

At a preliminary hearing the defendant has a chance, albeit small, to avoid being formally charged. But in Illinois, if the defendant prevails at a preliminary hearing, the State can take the same case with the same witness to the grand jury and charge via indictment. I have seen it happen and it's ugly.

Imagine being arrested for a felony and put in the county jail. Two weeks later you have your preliminary hearing and the judge finds no probable cause. You're released from custody that night and think your problem is over. Two weeks later you get a letter informing you the case has been indicted and you have to come to court. Wow. And to add insult to injury, at your next court date (the arraignment) the State is going to reset bond, or attempt to put you back in jail and more often than not, they succeed. Yikes.


My investigator is a retired Chicago Police homicide detective. He said the State could indict a ham sandwich. I found that funny.

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7th Circuit Holds Defendant Waived Miranda

Recall my earlier post about a suspect's right to an attorney and the famous Miranda warning. The United States Court of Appeals for the 7th Circuit just decided an interesting case with Miranda implications.

In United States v. Robinson, the defendant was allegedly involved in weapons trafficking in violation of federal law. The allegations stated that Robinson traveled out of state and hired people to make 'straw purchases' of firearms, which he shipped back to his home in Maywood, IL. [A 'straw purchase' is when someone who can legally purchase a firearm does so for someone who cannot, such as a convicted felon].

When the guns arrived in Maywood, Robinson removed the serial numbers so they could not be traced. This is also a crime. However, at least two of the weapon's serial numbers were later restored by lab technicians. A subsequent investigation by officials linked Robinson to both guns.

In 2003 law enforcement officials (one from the ATF) set up a meeting with Robinson at his mother's house in Maywood. Beforehand they learned he had an outstanding warrant out of Lombard for retail theft.

When officers arrived to meet Robinson they were met by Robinson's attorney. The attorney was informed they wanted to talk to Robinson about weapons trafficking. The attorney, however, informed the officers that Robinson would not speak with them about their investigation.

Robinson was taken into custody based on the Lombard warrant. Instead of transporting Robinson to Lombard's police department, he was taken to Westchester, where he confessed via a written statement to weapons trafficking. After confessing, he was eventually taken to Lombard later that evening.

Robinson was not given a Miranda warning at his mother's house or during the car ride to Westchester. At Westchester, however, Robinson signed a Miranda waiver.

Robinson's lawyer filed a motion to suppress the confession and the district court held a hearing on the motion. According to the officers, Robinson just started talking and ultimately confessed. However, according to Robinson, he was continuously questioned during the car ride to Westchester and was told he didn't need a lawyer. Robinson claimed he signed the confession to "get out of there." He also claimed officers told his lawyer he was being taken to Lombard.

The district court denied Robinson's motion finding he initiated the conversation with law enforcement officials. Robinson was tried, convicted, and sentenced to consecutive 5 year prison sentences.

On review the 7th Circuit looked to the holding of Edwards v. Arizona, 451 U.S. 477 (1981) for guidance and agreed with the district court. 

The court found the conversation with officers was not an interrogation, thus not in violation of Edwards. The court further held the actions of the officers was not designed to elicit an incriminating response from Robinson, thus no 5th Amendment violation.

Robinson argued his detour to Westchester (instead of direct transport to Lombard) was designed to elicit a confession. Both the district and appellate court disagreed. The district court found that less than 30 minutes after leaving his lawyer, Robinson disregarded his attorney's advice and confessed. On review the 7th Circuit did not find the district court's findings as being clearly erroneous. Robinson's conviction was upheld.

I take note of a couple of facts. Robinson was savvy enough to have his lawyer present when law enforcement agents arrived. The lawyer was not retained to represent Robinson on the Lombard retail theft charge. Thus, Robinson's attorney was there to deal with the federal weapons case.

Officers (including one Federal agent) told the attorney they wanted to question Robinson about the weapons trafficking, so he knew the seriousness of the case. The 7th Circuit wrote: 

 

"In fact, the diversion and delay did not actually deprive Robinson of his attorney’s presence or advice. Allen [Robinson's attorney] did not attempt to accompany or follow Robinson to the police station. He was equivocal regarding whether he planned to go to the station at all that evening, as he was not representing Robinson on the retail-theft charge, and did not, in fact, make any further efforts on Robinson’s behalf that evening."

Question: is this bad lawyering or slick police work? Hindsight is always 20/20 but I would like to think I would have followed my client to wherever he was being taken, especially while in Federal custody. But the sad truth is our clients often get themselves into trouble by talking.

In conclusion I note the following: Robinson knew he was under investigation for federal weapons trafficking, thus he had his lawyer present when officers arrived to question him. I find it extremely odd that less than 30 minutes after his attorney invoked his Miranda right to remain silent, Robinson all of a sudden just started talking and confessed.

I don't disagree with the 7th Circuit's legal analysis of the case, but this one doesn't pass the sniff test.

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Arizona v. Gant Defeated by Inventory Searches

On April 21, 2009 the United States Supreme Court, in a very interesting 4-1-4 vote, put some teeth back into the 4th amendment. The 4th amendment was designed to protect citizens from unreasonable searches and seizures. Most of my work in the criminal defense business interweaves with the 4th amendment.

Prior to last week's decision, if you were pulled over for a traffic violation and arrested for anything, including something minor, such as driving on a suspended license, the cops could search your car and any containers in it. Defense attorneys argued these types of searches were an end run around the 4th amendment. And now the Supreme Court agrees in Arizona v. Gant. Curiously, Gant didn't really change the law but rather informed lower courts that New York v. Belton has been misinterpreted since it was decided in 1981.

Belton clearly held the interior of a vehicle could only be searched incident to arrest if it could still be accessed by the people removed from the vehicle. Belton built on Chimel v. California, which held that warrantless searches "incident to arrest" are limited to the area within the immediate control of the suspect. Belton was simply the vehicle version of Chimel since the latter dealt with the suspect's home.

Now that Gant restated Belton, once the occupants of the vehicle are removed and can no longer access the inside of the vehicle it cannot be searched without a warrant or consent.....unless the cops are looking for further evidence of the crime for which the occupant(s) was/were arrested or some other reason that gets around the warrant requirement (there are not too many).

On a side note, I spoke to one judge at 26th & California in chambers after Gant was decided. He told me that he had been reading Belton correctly all along and the holding of Gant was nothing new...at least to him.

What this means is the police can't search your car if you're arrested for a traffic violation or driving on a suspended or revoked license. A DUI arrest is questionable because the officer could claim he was searching the vehicle for evidence of alcohol consumption such as empty beer cans. I imagine these type searches will be hotly contested in the years to come.

Gant, however, is limited in scope because it only deals with vehicle searches incident to arrest. Warrantless searches of vehicles are per se unreasonable, but there are exceptions. The first one being a search incident to arrest, which Belton and Gant addressed.

An inventory search also gets around the warrant requirement. In Illinois, inventory searches are a judicially created exception to the warrant requirement. And I predict they will completely neuter Belton and Gant.

An inventory search is done pursuant to impound. The policy is to protect the police department and vehicle owner against claims of lost property inside the vehicle. But it really just gives police the authority to search the entire vehicle, including the trunk.

Chicago police can impound a vehicle whenever the driver is arrested or if contraband is found in the car. It also costs about $1,200 to get a car out of the city of Chicago impound lot. Often the car is ripped up due to an extensive search. I know of vehicles impounded because a backseat passenger had a gram of marijuana. Ouch.

In order to get around Belton and Gant, the police just need a reason to impound the car. Review my earlier example of driving with no license. If arrested for this offense, the vehicle cannot be searched incident to such an arrest, but it can be searched if it's going to be towed to the impound lot.

But it's not that simple. At a suppression hearing to exclude evidence found during an inventory search, the police officer has to be able to clearly articulate their department's impound policy. There is also case law that holds the officer has to follow the policy or the impound is not valid, thus any contraband found will be suppressed.

If you're a defense attorney conducting a suppression hearing involving a vehicle search, know what type of search you're dealing with. If it's a search incident to arrest, know Belton and Gant. If it's an Illinois case, you can also offer People v. Bridgewater in support of your motion.

But if you're dealing with an inventory search, know the applicable case law. Here are some Illinois cases which you should read: People v. Hundley, 156 Ill. 2d 135 (1993), People v. Ursini, 245 Ill. App. 3d 480 (2nd Dist. 1993), and People v. Alewelt, 217 Ill. App. 3d 578 (3rd Dist. 1991).

Remember, the police officer must be following the department's policy in order for the impound to be valid. If the impound is not valid, the evidence found during the inventory search should be suppressed.

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High Bonds Lead to More Guilty Pleas

In Illinois, if arrested for a felony the defendant must be brought before a bond judge within 48 hours. People arrested for misdemeanors are typically released from the police station after booking with a court date in a few weeks.

At bond court some are released on house arrest and a very few are released on I bond, which means they have to post no money "to walk." The majority, however, have a cash bond set.

The purpose of a cash bond is to ensure the defendant will come to future court dates. In reality, and in my opinion, the high bonds in Cook county serve to incarcerate prior to conviction. In my opinion this is unconstitutional. That statement is not universally true. Some people are simply dangerous and don't belong on the streets. But they have not been convicted yet. What about innocent until proven guilty? This is an interesting argument.

The amount of money a defendant must post "to walk" is determined at a one-two minute bond hearing. The judge hears about the case in the light most favorable to the State along with the defendant's criminal background, including any and all missed court dates. The public defender tells the judge the defendant's social background, such as age, level of education, family situation, and employment status.

I am not sure of the calculus the judges use to set bond, but usually bonds for females are lower. And obviously, less serious crimes are lower...unless there is a lot of background. I have seen gun case bonds from as low as $2,500 all the way up to $50,000. Simple drug possession cases are usually around $5,000 if there is a prior felony. Most murder defendants are held with no bond.

Not too many people can post high bonds. I see a lot of people whose family scraped together $1,000 but anything higher than that is rare. What this means is the defendant will sit in the county jail while the case is pending.

By the time the case gets through either a preliminary hearing or the grand jury, most defendants have been in jail for up to 6 weeks. Almost everyone will "cop out" and plead guilty at the arraignment if probation is offered. They would rather plead guilty to something they didn't do than sit in jail and fight the case.

In Illinois a one year prison sentence in reality is only 61 days. I have been told recently a one year sentence has been reduced to a couple of weeks and a two year sentence is only 90 days. I don't get it. But many defendants see a quick prison term as the shortest road home and don't care about a felony conviction.

There is the rub: sit in the county jail for months fighting a case on motions to quash and suppress or just plead guilty, do a month or so and come home on parole (mandatory supervised released is what it's called these days).

The only clients I have that will litigate their case and allow me to give them a defense are those who were able to post bond or those facing at least 20 years in prison if convicted. Those on bond don't mind coming to court once a month while I work up their case. And those facing serious time want me to take my time preparing their defense.

If more people were able to afford bond, I predict there would be many less guilty pleas because defendants would let their attorneys work the case up. And that takes time.

As a rule I consider a guilty plea the last option, but for many clients it's the first option. I hate having a case I feel is defensible and a client that wants to plead guilty. It stinks. But I work for my client and not my ego or my love of criminal litigation.

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The System Works

I had arguably my best week in court all year. On Monday a judge granted two of my motions. I argued there was no probable cause to arrest my client and that the immediate 'show-up' identification was unnecessarily suggestive. The judge agreed and sustained both motions. In this case, my client was looking at up to a minimum of 21 years in prison if convicted.

For those that don't know what a 'show-up' is, here is an explanation. You all know what a police line-up looks like, right? 5 people that look somewhat similar are brought into a room for the victim or witness to view. A photo spread is similar except that 5 photos are shown rather than the actual people.

A 'show-up' usually involves the viewing of only one suspect while they are in police custody. Imagine you're the victim of a robbery. The police come, interview you and then 10 minutes later drive up with someone in the back seat in handcuffs. This person is pulled from the car by police and you take a quick look at him. That is a 'show-up'.

'Show-ups' can be lawful or not. In my case, the judge said it was not lawful. Also in my case the description of the offender was so vague the judge ruled there was no probable cause to detain him. My client was found by police walking and had nothing illegal on him or in other words, no evidence of the crime under investigation (an armed robbery with a handgun).

That was win #1.

On Wednesday at 26th & California I argued a motion to suppress a handgun found in my client's car. He was pulled over for having his music too loud and subsequently arrested for having no valid license. The police searched his car and found a small handgun inside the dashboard.

Here is where the law gets tricky. The police officer testified the search was being done prior to impound, which would typically be legal. But in this case, the car was lost from the police station and was never towed. I argued, therefore, it was not a valid impound, thus the search was illegal. The judge agreed. The state dismissed the case.

Win # 2.

But I did lose a motion too. On Tuesday in Markham I argued a motion to suppress a small amount of cocaine found in my client's car after he was arrested for driving with no valid license.

I thought I had a good motion too due to the recent US Supreme Court case, Arizona v. Gant. But the police officer testified the drugs were in plain view when he came back to prepare my client's car for towing.

There's the rub. If a police officer is in a place where he is authorized to be and sees something in plain view, the 4th amendment does not apply, thus the judge denied my motion.

I guess 2 out of 3 isn't bad.

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