Tuesday, April 6, 2010

The 4th Amendment Has A Pulse

A recent case from the Illinois Appellate Court caught my eye. A defendant was charged and convicted of felony driving with no license. He was sentenced to 2 years in prison. That's right, 2 years in prison for driving with no license.

A Chicago police officer was driving behind a white Cadillac. The car pulled over and came to a stop in a no parking zone on a residential street. The officer turned on his emergency lights and stopped behind the Cadillac.

The officer approached the car and asked the driver for his license. Behind the wheel was the defendant who was only able to produce a state ID card. A check on the man's name revealed his license was not valid due to a prior DUI.

On appeal, the defendant alleged ineffective assistance of counsel. This claim was based on the fact that the defense attorney did not file a motion to suppress the evidence that defendant had no license.

Ineffective assistance of counsel is alleged in almost every appeal. If the trial didn't go right, blame the lawyer. The hallmark U.S. Supreme Court case that set the standard for these claims is Strickland v. Washington. I read this case in advanced criminal procedure in law school.

The Strickland test has 2 prongs: #1 did the lawyer screw up, and #2 if the lawyer did screw up, was the defendant prejudiced? In other words, did the lawyer screw up so bad that it ruined the case for the defendant?

Reviewing courts rarely find ineffective assistance of counsel. There is no perfect trial. And the courts tend to punt these claims and call the actions of the attorney trial strategy. What happens inside the courtroom walls is almost always called trial strategy. Typical strategic decisions include which witnesses to call, what evidence to introduce, when to object, and so forth.

I have read so very few Illinois cases where a court agreed the lawyer messed up. In the case I read today, the court agreed with the defendant. Here is why.

The court wrote that once the police officer turned on his lights and approached the car in the manner he did, the 4th amendment was implicated. The State argued the defendant's car pulled over on its own and that the officer was not making a traffic stop. I thought this argument was pretty good.

But the court reasoned that the officer's actions were a Terry stop. This conclusion was based on the totality of the circumstances. The court wrote that the defendant upon seeing a police car behind him with its emergency lights on and an officer walking up to his car, would not have felt free to leave. The court, therefore, concluded this encounter with the police was not consensual, thus the 4th Amendment applied.

The court held that since the officer observed the car make no traffic violations before he turned on the lights and approached the car, there was no reasonable articulable basis for the Terry stop.

The court even went further, which shocked me. I have had clients that were approached this way while parked in a no parking zone. In this case, the court noted that the occupants of the car never exited the vehicle. And there was no evidence that the zone they were parked in was also a no standing zone. In other words, the court found nothing in the record to indicate the car was violating any law or local ordinance by stopping where it did. If I understood the case correctly, a vehicle isn't legally parked until the car has been left.

The court reasoned, therefore, the police officer's actions were not justified. And the court wrote that  a motion to suppress the evidence that defendant's license was not valid would have likely succeeded, thus the attorney messed up.

The reason this case caught my eye is not how the court ruled. In my opinion, it applied the law. What I found interesting is how insignificant of a case this was. The defendant was out of prison a long time ago. All this decision did was vacate his conviction.

I am glad to see the appellate court still thinks the 4th amendment is alive and well. I just wish they would apply it to a case where the police conduct was more flagrant and the defendant lost more than a few months in prison.

This case feels like a bone that was thrown to the defense bar.



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