Wednesday, March 10, 2010

Did This Really Happen?

This morning I witnessed something that I liken to seeing a Unicorn or perhaps a Leprechaun handing me a pot of gold. I shook my head and eyes, twice. I thought I was dreaming.

I was in court this morning for a preliminary hearing on a minor drug case. While the arresting officer prepared to testify in my case, I waited. While waiting I watched a couple of hearings. It was the usual. Traffic stop, crack cocaine....finding of probable cause.

Then I watched a hearing that involved the cops following someone on the Red Line. For you non-Chicago types, the Red Line is one of the El train routes. It's the longest in the city, running from as far south as 95th to as far north as Howard.

The police had information some 6 ft white guy that weighed 165-180 lbs was carrying some marijuana in a backpack. The defendant in court today was about 6'1" and maybe 170. Two police officers followed this defendant around for 5 hours. He ended up on the Red Line and the two officers were in the same train car.

At some point, they handcuffed the suspect and searched his bag. All of this occurred on the train. In the bag was about 85 grams of weed (felony amount is anything over 30 grams).

The testifying officer said the other undercover officer claimed he could smell the pot while sitting behind the suspect. Ah yes, the smell of cannabis, probable cause to search story.

The defense attorney asked the standard preliminary hearing cross-examination questions. His questions elicited most of the facts I have written. He also brought out the facts that the cops never saw him sell or buy any weed or touch the plastic bag it was in. Pretty standard stuff.

His last question: "You handcuffed him, and then searched his bag?" Answer: "Yes."

The judge this was before finds probable cause on damn near every case, except minor drug possession cases, which this case was not. But he does allow the most defense questions of all 6 of the Chicago preliminary hearing judges.

Questioning is restricted in these hearings. If you start asking any questions that appear to be touching 4th Amendment issues, the State objects "Objection. No motion pending." And the judge sustains the objection. It's frustrating. But you get used to it.

At preliminary hearings the burden on the State to win is very, very low. The judges always err on the side of the cops. And the preliminary hearing is not the forum to litigate whether or not it was a good arrest or lawful search. Or so I thought.

The judge took off his glasses and said something about the Fruit of the Poisonous Tree. I about fainted. A preliminary hearing judge even mentioning the 4th Amendment? No way, Jose. But the judge went beyond mentioning it. He applied it.

This Fruity doctrine was applied to the 4th Amendment by the U.S. Supreme Court sometime during the Warren years. I should know the case, but don't and am too busy to look it up right now. If I had to guess I would say Wong Sun v. United States, but I don't know for sure.

The doctrine is very simple. Any contraband (Fruit) found by police after an unlawful arrest (Poisonous Tree) is inadmissible. It's more complicated in practice, but the doctrine is easy to understand.

The judge said the cops handcuffed the defendant on a weak suspicion and he threw the case out. Two other defense attorneys and myself had to bend over and reach down to grab our jaws off the floor.

Now I have to order the transcript of that hearing. That attorney must have slipped in some question that eludes the rest of us. Some magic word that triggers a 4th Amendment analysis at a preliminary hearing. 

Or perhaps the Chief Judge told the hearing judges to start weeding out more nickel & dime drug cases because the system is at max capacity traveling at ludicrous speed.

I bet the latter. Still getting the transcript though.



  1. You gotta love a good suppression. My prelim judge rarely tosses a case. 6 times in 3 1/2 years practicing in front of him. He does, however, give me a lot of lattitude in questioning. I elicit the same testimony I would at a suppression hearing--that way the witness can't backtrack. They're never as unprepared for suppression issues as they are at the preliminary hearing.

  2. If I think there will be a motion later, I try to lay some foundation during the prelim for the exact reason you mentioned.


Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.