4th Amendment

Published on: April 4, 2016

Who Let the Dogs In?

Supreme Court of Illinois holds that use of a drug-detection dog violated Fourth Amendment in People v. Burns.

On January 10, 1013 at 3:20 am, the police along with a drug-detection dog went into defendant’s apartment building. This officer and his dog got into the building when a tenant let in a fellow officer, who was undercover. The drug dog alerted to defendant’s apartment door and a search warrant was obtained. The apartment was searched, drugs were found, and defendant was charged.

The Illinois Supreme Court first looked at the United States Supreme Court case of Florida v. Jardines, in which the police took a drug dog to the front porch of the defendant’s home and sniffed the door. The Supreme Court of the United States found that this was a search for Fourth Amendment purposes. The US Supreme Court went on to state that the areas surrounding and associated with the home are considered part of the home.

Published on: August 5, 2014

The Fourth Amendment’s Sliding Scale Protection

by Michael Rosenblat

Chicago – On a Sunday night in Chicago around Armitage and Kildare and Wabansia and Karlov the Chicago Police received numerous 911 calls reporting gunshots in the area. The callers reported to 911 hearing between 5 and 9 shots and based on additional 911 calls that the shots were fired from a black car traveling south on Karlov nears Wabansia.

The traffic was light, and two Chicago Police officers on patrol drove to Kostner and proceeded south. Kostner is a few blocks west of Karlov. The officers drove past a black car heading north and officers turned around and followed the black car. The Chicago Police officers stopped the car a short distance later. The officers approached the car and found a revolver on the passenger seat of the defendant, which had 5 of the six round fired.

The Defendant, a convicted felon, was charged with possessing a firearm as a convicted felon. 18 U.S.C. § 922(g)(1).

Published on: May 10, 2014

Court allows anonymous tip to justify stop – Denies Motion to Suppress Evidence

by Michael Rosenblat

Chicago – The Supreme Court in the case of Narvarette v. California, 188 L.Ed. 2d 680, April 22, 2014, ruled that an anonymous report of a traffic violation justified the stop of a vehicle. In this case, a five to four opinion, the majority opinion is written by Justice Thomas and the dissent by Justice Scalia. This case concerns whether an anonymous tip to 911 can justify the stop of a vehicle under the Fourth Amendment.

Here are the facts. A 911-dispatch center for the California Highway Patrol received a 911 call that a pickup truck ran the caller off the road. The caller gave a description of the vehicle, license plate number, and location. The dispatcher relayed the following: “Showing southbound Highway 1 at mile marker 88. Silver Ford 150 pickup. Plate of 8-David-94925. Ran the reporting party off the roadway and was last seen approximately five [minutes] ago.” Officers found the truck, followed it for about five minutes, did not observe any traffic violations, and pulled the truck over. When approaching the truck the officers smelled marijuana and a search found 30 pounds of it.

The defendant filed a motion to suppress the evidence, asserting that the police lacked a reasonable suspicion of criminal activity when they stopped his car. The defendant lost at the trial court level and on appeal to the California Court of Appeals and the California Supreme Court denied review. Continue reading

Published on: November 5, 2013

UUW Charges and Chicago Police Street Stops

by Michael Rosenblat

What has the new Illinois gun law really changed for people facing gun charges? Not much. A few weeks ago, the Illinois Supreme Court found a specific section of the Illinois Unlawful use of a Weapon statute unconstitutional. 720 ILCS 5/24-1.6

In People v. Aguilar, Docket # 112116, the Illinois Supreme Court found a section of the Aggravated Unlawful use of a Weapon statute unconstitutional because it violated the Second Amendment, section 24-1.6(a)(1), (a)(3)(A). Section (a)(1) generally prohibited carrying a gun on your person or in your vehicle unless you are on your own land, in your own home or business, or you had permission from the owner. While Section (a)(3)(A) made it a crime if the gun is uncases, loaded, and immediately accessible.

Now that section (3)(A) has been found unconstitutional, it will be interesting to see how the Courts address sentencing since Aggravated UUW is non-probationable if the person is over 18 years old and both section (A) and (C) factors are present. Continue reading

Published on: May 11, 2013

Drug dog sniff outside home is search, SCOTUS says; Scalia opinion relies on curtilage concept – ABA Journal

by Michael Rosenblat

The U.S. Supreme Court has ruled that police conducted a search within the meaning of the Fourth Amendment when they used a police dog to sniff for drugs on the porch of a home. Conservative Justices Antonin Scalia and Clarence Thomas joined with three of the court’s liberals to form a majority. The case is “a straightforward one,” Scalia said in his majority opinion (PDF), because police had gathered evidence in the vicinity immediately outside the house—the area known as the curtilage. Justice Elena Kagan wrote a concurring opinion joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Kagan said the use of the drug dog was a search based on privacy as well as property grounds.

via Drug dog sniff outside home is search, SCOTUS says; Scalia opinion relies on curtilage concept – ABA Journal.

Published on: December 11, 2012

Court Declares Illinois Gun Laws Unconstitutional

by Michael Rosenblat

Court Declares Illinois Gun Laws Unconstitutional

Today the 7th Circuit Court of Appeals declared that the Illinois law prohibiting a person from carrying a loaded concealed gun unconstitutional. Moore v. Madigan, 12-1269. The Court after going through an historical review and a look at the U.S. Supreme Court cases of District of Columbia v. Heller, 554 US 570 (2008) and McDonald v. City of Chicago, 130 S. Ct 3020 (2010) found that the Supreme Court had decided that the Second Amendment’s right to bear arms for self-defense was as important inside the home as outside. The statute prohibiting the carrying of guns was declared unconstitutional. The mandate was stayed for 180 days to allow Illinois to craft new gun laws which are less restrictive.

Published on: May 6, 2012

State win right to have witnesses testify from the grave against Drew Peterson

by Michael Rosenblat

People v. Peterson, 2012 IL APP (3d) 100514-B, 2012 Ill. App. LEXIS 269 (April 12, 2012)

In this opinion the Appellate Court addresses the admissibility of hearsay statements allegedly made by two of Drew Peterson’s former wives, Kathleen Savio and Stacy Peterson.

Kathleen Savio was allegedly murdered by Drew Peterson to prevent her from testifying during a divorce proceeding concerning the distribution of marital property. While Stacy was allegedly murdered by Peterson to prevent her from testifying in future divorce proceedings and from testifying at Peterson’s trial for murdering Savio, even though Peterson was never charged with Savio’s murder until after Stacy’s disappearance.

Published on: April 11, 2012

Challenging a Search Warrant

by Michael Rosenblat

In United States v. Spears, (March 8, 2012) the 7^th Circuit Court of Appeals found that even though there were misrepresentation in the affidavit presented to the magistrate judge, by the police, there was still sufficient evidence to support a finding of probable cause.

On August 1, 2008 an Indiana police officer acting as a federal agent submitted an affidavit in support of a search warrant for the home of Defendant Spears. The affidavit stated that a confidential informant had been in the basement of Defendant’s home and had observed multiple rooms with marijuana plants, a water system, growing lights, fertilizer, and PVC piping from the basement to outside the house.

The affidavit also stated that on July 31, 2008 officers conducted a trash pull and found a marijuana stem in the trash. The affidavit further stated that the electric company reported higher than normal electrical usage for Defendant’s home compared to similar homes. The magistrate judge granted the search warrant and the warrant was executed on August 6, 2008.

Published on: March 4, 2012

Center Console of a car is a “Case” under the UUW Statute

by Michael Rosenblat

Center Console of a car is a “Case” under weapons statutes

Court finds that a gun placed in the center console of a car is “encased” for purposes of the aggravated unlawful use of a weapon statute.

In People v. Harris, 2012 IL App (1^st) 100077, Harris was charged with carrying a loaded uncased firearm in a vehicle and related charges. In another case, People v. Holmes, 241 Ill. 2d 509 (2011), the Illinois Supreme Court held that a backseat armrest which contained a cover and latch fell within the definition of “case” under the UUW statute. Thus the court here found that the gun Harris had in the center console of his car was encased and that conviction was reversed.

Published on: February 20, 2012

Constructive Possession – When is that contraband yours?

by Michael Rosenblat

Two recent appellate court cases both discussed the constructive possession of a weapon and both reached different conclusions.

In People v. Spencer, 2012 IL App (1st) 102094 (Feb 2, 2012), the defendant was convicted of unlawful use of a weapon in that defendant unlawfully possessed a handgun.

The police executed a search warrant of defendant and of a home. When the police entered the home they claimed to have seen the defendant run toward the back of the house and he was arrested in the backyard. Upon searching the house the police found some ammunition, cash, and cannabis and several items that indicated that defendant was living in the home. After being read his Miranda rights defendant made a statement that “if you had my kind of money, you’d have a gun, too.” The police then searched the kitchen and found a revolver on top of a kitchen cabinet.