Tag Archives: Constitutional
Defending Drug Possession Cases in Illinois
Defending Drug Possession Cases in Illinois
Drug possession is a serious crime in Illinois, and those convicted of it can face significant penalties, including jail time, fines, and a criminal record. If you have been charged with drug possession, it is important to speak with an experienced criminal defense attorney as soon as possible. An attorney can help you understand the charges against you and build a strong defense.
There are a number of different defenses that can be used in drug possession cases. Some of the most common defenses include:
- The drugs were not in my possession. This is a common defense, and it can be successful if the prosecution cannot prove that you had actual or constructive possession of the drugs. Actual possession means that you had the drugs on your person or in your immediate control. Constructive possession means that you had the ability to control the drugs, even if they were not on your person. For example, if you were driving a car and the police found drugs in the glove compartment, you could argue that you did not have constructive possession of the drugs because you did not know they were there.
- The drugs were prescribed to me by a doctor. If you have a valid prescription for the drugs that you were found in possession of, this defense can be very effective. The prosecution will have to prove that you did not have a valid prescription for the drugs, or that you were not in possession of the drugs for a legitimate medical purpose.
- The police violated my constitutional rights. If the police violated your constitutional rights during the arrest, any evidence that they obtained as a result of the violation may be inadmissible in court. This could include the drugs that were found in your possession.
If you have been charged with drug possession, it is important to speak with an experienced criminal defense attorney as soon as possible. An attorney can help you understand the charges against you and build a strong defense.
Here are some additional tips for defending drug possession cases in Illinois:
- Be honest with your attorney. Your attorney needs to know all of the facts of your case in order to build a strong defense. If you are not honest with your attorney, it could hurt your case.
- Do not talk to the police without an attorney present. Anything you say to the police can and will be used against you in court. It is important to have an attorney present when you speak to the police, even if you think you are innocent.
- Gather evidence. If you have any evidence that could help your case, such as witnesses or video footage, be sure to gather it and provide it to your attorney.
- Be prepared for trial. If your case goes to trial, be prepared to testify on your own behalf. Your attorney will help you prepare for trial and answer any questions you may have.
Drug possession is a serious crime, but with the help of an experienced criminal defense attorney, you can build a strong defense and fight the charges against you.
Criminal Unlawful Possession of a Controlled Substance in Illinois and defenses.
The law of search and seizure in Illinois
What are the rights of a criminal defendant in the United States as opposed to other countries?
The United States has a number of constitutional rights that protect criminal defendants. These rights include the right to a speedy and public trial, the right to an attorney, the right to confront witnesses against them, the right to be free from self-incrimination, and the right to due process of law.
Other countries also have similar rights for criminal defendants, but the specific rights that are guaranteed may vary. For example, the European Convention on Human Rights guarantees the right to a fair trial, but it does not specifically guarantee the right to a public trial.
In general, the United States has a more adversarial system of justice than other countries. This means that the prosecution and the defense are more likely to be at odds with each other, and the judge’s role is to referee the dispute. In other countries, the system is more inquisitorial, where the judge is actively involved in investigating the case and trying to find the truth.
The United States also has a higher rate of incarceration than other countries. This is due in part to the fact that the United States has a wider range of crimes that are punishable by incarceration, and in part to the fact that the United States has a more punitive approach to criminal justice.
Despite these differences, the United States and other countries share a common goal of ensuring that criminal defendants are treated fairly and that their rights are protected.
A general outline of the American legal system
New Illinois laws 2017
200 new Illinois laws scheduled to take effect on Jan. 1. Here are the new laws governing Crime, Courts, Corrections and Law Enforcemen
More than 200 new Illinois laws scheduled to take effect on Jan. 1. Here are the new laws governing Crime, Courts, Corrections and Law Enforcement in Lake County, Illinois:
- Child Abuse by Professionals (SB 1763/PA 99-0350): Clarifies definitions to include situations where a person who is acting in a professional capacity abuses or neglects a child.
- Abused Adult Records Access (SB 1309/PA 99-0287): Gives a Public Guardian access to records regarding investigations of abuse, neglect, financial exploitation or self-neglect of eligible adults when the Public Guardian is investigating the need for a guardianship or pursuing a petition for guardianship.
- Abused Children Protection Orders (SB 1335/PA 99-0349): Provides that the parties to the proceedings are also entitled to copies of unfounded reports.
- AED Mandate (SB 764/PA 99-0246): Requires sheriff’s offices and municipal police departments that employ over 100 police officers comply with the AED Act and be equipped with an AED.
- Body Cameras (SB 1304/PA 99-0352): Establishes rules and regulations for the use of officer-worn body cameras and implements a package of police reforms. Police reforms: Prohibits police from using chokeholds, except when deadly force is justified; requires an independent review of officer-involved deaths, and makes investigation reports part of the public record if an officer involved in a death is not charged with a crime; expands police officer training to include topics like use of force; creates a database of officers who have been fired or resigned due to misconduct. Body camera regulations: Does not require police departments to use body cameras. If they choose to do so, officers must keep their cameras on when conducting law enforcement activities. Officers would be allowed to turn the camera off when talking to a confidential informant, or at the request of a victim or witness. Requires officers to let people know they are recording if they enter a home. Videos will be kept for 90 days, unless flagged for specific reasons. Allows for grants via a $5 fee increase for each $40 on criminal and traffic offenses, to go toward cameras and new training.
- Coroner Training Board (SB 663/PA 99-0408): Creates the Coroner Training Board Act and Transfers the oversight of coroner training from the Law Enforcement Training Standards Board to a new Coroner Training Board the authority to conduct and approve a training program in death investigations.
- County Jail “Good Time” Sentencing (HB 3785/PA 99-0259): Changes existing provision that no committed person may be penalized more than 30 days of good behavior allowance for any one infraction by providing that if the infraction is the second or subsequent infraction within any 30-day period, then the committed person may not be penalized more than 60 days of good behavior allowance.
- Court Interpreters for Civil Cases (HB 3620/PA 99-0133): Requires appointment of language interpreters for witnesses and parties in civil cases, if necessary.
- Court Services Fee (SB 804/PA 99-0265): Allows counties to impose a higher court services fee (now maximum of $25) if the fee is supported by an acceptable cost study. The fee must be used to defray court security expenses.
- Court Supervision for Aggravated Speeding (HB 1453/PA 99-0212): Provides that a defendant charged with speeding 26 miles per hour or more in excess of the applicable speed limit may be eligible for court supervision if the defendant has not been previously convicted for a similar offense or previously assigned court supervision for a similar offense.
- Crime Victims Debt Collection (SB 1866/PA 99-0444): Amends the Crime Victims Compensation Act to prevent a vendor who has been provided notice of a claim filed under the Act from engaging in debt collection activities against the applicant until the Court of Claims awards compensation for the debt and the payment is processed. “Debt collection activities” does not include billing insurance or other government programs, routine inquiries about coverage, or routine billing that indicates that the amount is not due pending resolution of the crime victim compensation claim.
- Domestic Violence Sentencing Consideration (SB 209/PA 99-0384): Adds a history of domestic violence to the list of mitigating factors for judges to consider during sentencing. Creates a process for courts to review petitions for re-sentencing for certain offenses committed by a victim of domestic violence who was unable to present evidence of domestic violence at trial.
- Discovery (HB 95/PA 99-0110 – Sen. Michael Connelly): Provides that discovery in civil cases, such as admissions of fact and of genuineness of documents, physical and mental examinations of parties and other persons, the taking of any depositions, and interrogatories shall be in accordance with rules.
- DUI-related Safety Provisions (SB 627/PA 99-0467): Makes several recommendations based on the Traffic Safety Advisory Committee. Changes include the following:
- Requires certain individuals suspected of consuming alcohol to sign the written warning from law enforcement.
- Removes “hard time” provisions which currently prohibit driving relief for DUI offenders, and instead allow offenders to apply for a Monitoring Device Driving Permit or Restricted Driving Permit, with a Breath Alcohol Ignition Interlock Device.
- Requires any offender with two+ DUI or reckless homicide convictions to install a BAIID as a condition of a Restricted Driving Permit.
- Requires a BAIID, as a condition of a RDP, if the offender is convicted of DUI involving death, great bodily harm or permanent disability or disfigurement to another.
- Elderly Exploitation Civil Action (HB 1588/PA 99-0272 – Sen. Jason Barickman): Changes the civil liability provision of financial exploitation of an elderly person or a person with a disability to allow for a civil cause of action regardless of whether criminal charges have been filed. Civil liability provision does not limit or affect the right of a person to bring a cause of action or seek any remedy available under the common law, or other applicable law.
- Facilitated Courtroom Testimony (SB 1389/PA 99-0094): Allows the court to set conditions it finds just and appropriate, including the use of therapy and service animals, for taking the testimony of a child victim or disabled victim in certain sex offense cases.
- False 9-1-1 Call (HB 3988/PA 99-0160 – Sen. Michael Connelly): Requires reimbursement where a person makes a false 9-1-1 call knowing there is no reasonable ground for making the call or transmission and further knows that the call or transmission could result in the emergency response of any public safety agency. Caps reimbursement at $10,000.
- First Responder Assault Penalties (HB 3184/PA 99-0256): Enhances the penalty for aggravated assault of a peace officer, fireman, emergency management worker, or emergency medical technician.
- Foreclosure Special Representative (SB 735/PA 99-0024): Adds conveyances under a transfer on death instrument, conveyances where title was transferred prior to death, and where title was conveyed from the deceased’s probate estate to foreclosure cases where the court is not required to appoint a special representative for a deceased mortgagor.
- Foreign Affairs Officers Arrests (HB 1337/PA 99-0190): Provides that the new consular notification mandate does not create any affirmative duty to investigate whether an arrestee or detainee is a foreign national.
- Gender Identity Protection (HB 3552/PA 99-0417): Provides that the written directions a person leaves regarding disposition of that person’s remains may include instructions regarding gender identity including, but not limited to, instructions with respect to appearance, chosen name, and gender pronouns, regardless of whether the person has obtained a court-ordered name change, changed the gender marker on any identification document, or undergone any transition-related medical treatment.
- Good Conduct Time Sentencing (HB 3475/PA 99-0381): Amends the Unified Code of Corrections by expanding who may be eligible for certificates of good conduct to include persons convicted of committing or attempting to commit a Class X felony or a forcible felony (other than certain offenses currently specifically excluded in statute).
- Good Conduct Sentencing Credit (HB 3884/PA 99-0241 – Sen. Michael Connelly): Gives an additional 30 days of sentence credit to any prisoner who passes their high school equivalency testing while in the Department of Corrections or while they are being held in pre-trial detention (county jail) prior to the current commitment to the Department of Corrections.
- IDOC Parolee Information (HB 2722/PA 99-0275 – Sen. Michael Connelly): Helps protect the privacy of rehabilitated inmates seeking to reenter society because of (1) witness protection issues and gang affiliation/retaliation when an inmate is released. This bill does not affect separate victim notification requirements when an offender is released.
- Juries – Removal and Disability (HB 3704/PA 99-0102 – Sen. Michael Connelly): Provides additional means of establishing a total and permanent disability for purposes of a prospective juror seeking a permanent exclusion from jury service (an individualized education program plan or proof of a guardianship).
- Juvenile Justice Councils (HB 3718/PA 99-0258): Eliminates provisions in the Juvenile Court Act of 1987 that require automatic prosecution of minors as adults. Eliminates mandatory and presumptive transfers to adult criminal prosecution. Retains discretionary (judicial) transfer provisions.
- Juvenile Justice Councils (HB 4044/PA 99-0435): Amends the Juvenile Court Act of 1987 by expanding entities who may designate representatives to serve on county juvenile justice councils. This will add additional community-based perspectives to the juvenile justice councils.
- Juvenile Justice Reforms (SB 1560/PA 99-0268): Prevents juvenile misdemeanants from Department of Juvenile Justice (DJJ) commitment, suspends automatic custodianship of DJJ for aftercare (parole) violators if they have new adult criminal charges pending, and adjusts length of aftercare time to be proportional with length of adult parole.
- Juvenile Justice Reports (HB 3141/PA 99-0255 – Sen. Dale Righter): Amends the Unified Code of Corrections by adding a new section that clarifies the reporting requirements of the Department of Juvenile Justice to the Governor and General Assembly. Provides a due date of Jan. 1.
- Law Licenses for Non-Citizens (SB 23/PA 99-0419): Asks the Illinois Supreme Court to grant law licenses to non-citizens provided certain conditions have been satisfied related to the recently enacted federal “Deferred Action for Childhood Arrivals” program.
- Lifetime Sentences for Juveniles (HB 2471/PA 99-0069): Aligns Illinois’s criminal statutes with a U.S. Supreme Court ruling that found automatic mandatory life sentences for juveniles to be unconstitutional. Grants judges leeway to determine whether such a sentence is warranted and allows judges to lengthen or shorten a sentence depending on whether a firearm or automatic weapon was used in a capital crime.
- Minors in Detention Facilities (HB 2567/PA 99-0254): Prohibits a delinquent minor younger than age 13 from being admitted, kept, or detained in a detention facility unless a local youth service provider has first been contacted and is not able to accept the minor.
- Missing Persons Identification Act Changes (HB 4097/PA 99-0244 – Sen. Kyle McCarter): Prohibits law enforcement agencies from refusing to accept a missing person report on the basis of the missing person’s mental state or medical condition.
- Mental Health Fitness Ability to Stand Trial (SB 1938/PA 99-0140 – Sen. Tim Bivins): Amends the Code of Criminal Procedure relative to defendants found unfit to stand trial by making sure that the reports of forensic examiners working for circuit courts are also provided to the Department of Human Services (DHS) in conjunction with the judge’s order remanding the unfit defendant to a DHS facility for treatment.
- Mistaken Arrest Records (HB 169/PA 99-0363): Requires, if a person has been arrested for a criminal offense based upon mistaken identity, the law enforcement agency whose officers made the arrest to delete or retract the arrest records of that person.
- Orders of Protection Process (HB 3161/PA 99-0240): Prohibits a special process server from being appointed in Cook County if the order of protection to be served grants the surrender of a child, the surrender of a firearm or firearm owner’s identification card, or the exclusive possession of a shared residence.
- Out-of-State Subpoenas (SB 45/PA 99-0079 – Sen. Jason Barickman): Creates a simple process for civil cases by which a subpoena from an out-of-state court can be used to issue a discovery subpoena in Illinois.
- Police Crisis Intervention (HB 4112/PA 99-0261): Provides that the Law Enforcement Training and Standards Board (LETSB) will create a standard curriculum in crisis intervention and specialized policing responses to mental illness. Requires LETSB to conduct Crisis Intervention Team Training.
- Powdered Alcohol Ban (SB 67/PA 99-0051): Prohibits the sale of products consisting of or containing powdered alcohol in Illinois by creating a Class A misdemeanor for a violation and a Class 4 felony for a second or subsequent violations.
- Powdered Caffeine Prohibition (SB 9/PA 99-0050): Prohibits the sale or offering of powdered pure caffeine to anyone younger than age 18.
- Power of Attorney (SB 159/PA 99-0328): Makes technical changes to the Illinois Power of Attorney Act relative to health-care powers of attorney.
- Preservation and Delivery of Evidence (HB 233/PA 99-0354 – Sen. Tim Bivins): Requires the County Coroner to properly preserve evidence from a death investigation if appropriate equipment is available and release it to the investigating agency no later than 30 days after collection. Requires the police agency receiving that evidence to submit the specimens to a National DNA Index System participating laboratory within the state.
- Probate Citations Recover (SB 1308/PA 99-0093): Allows the court to issue a citation, pursuant to any civil cause of action, for the appearance of any person who may have had assets in his or her possession and of any person who may be liable to the estate of a ward.
- Probate Disabled Persons Wills (SB 90/PA 99-0302): Establishes a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled and either a plenary or limited guardian has been appointed and the court has found that the testator lacks testamentary capacity.
- Probate Temp Adult Guardians (HB 2505/PA 99-0070): Amends the Probate Act to provide that a temporary guardian of a disabled adult shall have the limited powers and duties of a guardian of the person or of the estate which are specifically enumerated by court order.
- Prostitution (SB 201/PA 99-0347): Makes it an aggravating factor in promoting juvenile prostitution, patronizing a prostitute, or patronizing a minor engaged in prostitution knowing that the minor was in the custody or guardianship of the Department of Children and Family Services.
- Same Sex Hate Crimes Definition (HB 3930/PA 99-0077): Changes definition of “sexual orientation” in the hate crime statute, the institutional vandalism statute, and the statute concerning aggravating factors in sentencing to the definition used in the Illinois Human Rights Act. Amends the offense of institutional vandalism by replacing the term “sexual orientation” with “ancestry, gender, sexual orientation” and “physical or mental disability.”
- Scott’s Law Changes (SB 1424/PA 99-0125): Adds recycling vehicles to vehicles covered under Scott’s Law.
- Sealing of Criminal Records (HB 3149/PA 99-0378): Allows a person who earned a high school diploma, associate’s degree, vocational technical certification, or bachelor’s degree, or GED during the period of his or her sentence or mandatory supervised release to petition for early sealing of the record prior to the applicable waiting period.
- Sealing of Criminal Records (SB 844/PA 99-0385): Allows for sealing of certain eligible criminal records in two years (rather than three years or four years) and other records including eligible felonies in three years (rather than four years) after the end of the case.
- Sexual Abuse (SB 207/PA 99-0283): Makes it an aggravating factor in sentencing for certain sex offenses committed against a victim with an intellectual disability and the defendant holds a position of trust, authority or supervision in relation to the victim.
- Statute of Limitations Suspensions for Sexual Assault Evidence Kits (HB 369/PA 99-0252): Tolls the statute of limitation period for charging a sex crime from the time evidence of a sexual assault is collected and submitted by a law enforcement agency until the completion of the analysis of the Illinois State Police.
- Synthetic Drug Classification (SB 1129/PA 99-0371 – Sen. Kyle McCarter): Gives law enforcement a new tool in combating the sale, distribution and possession of synthetic drugs by banning their underlying chemical structure.
Continually Recognized for Our Successful Results
Continually Recognized for Our
The Law office of Louis M. Pissios has successfully handled many complex and high-profile cases in Illinois including everything from Driving Under the Influence Cases to Drug Cases to Murder Cases, and everything in between. We are in Lake County, Illinois and handle every case with the diligence necessary to get you the best results possible.
Our attorneys provide unparalleled legal representation to those who are facing serious criminal charges. We have extensive experience in all areas of Criminal Law. Our Firm has a reputation for providing top-notch, high quality representation.
We recognize that every person, and every criminal prosecution, is unique. We tailor our practice to the individual needs of each and every client. Our ethics, skill and knowledge will help you obtain the best possible results.
The lawyer you choose to represent you can affect the results of your case. Our legal defense team includes experienced private investigators, paralegals and translators. . We provide high quality, creative and thorough legal representation to each and every one of our clients. We are only as good as the results we obtain for our clients. Our greatest compliment comes from the fact that many of our former clients and other attorneys refer clients to us for representation.
You should not compromise your choice of an attorney. This may be one of the most important decisions that you ever make.
Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here?
The Traffic Stop
State trooper stops Defendant on the highway for crossing the yellow line and following too closely. About 20 or 30 minutes into it, the tickets are written out and the trooper still has Defendant’s DL.
But before giving Defendant the paper work and returning his DL, the trooper asks him to get out his truck. Also, he had called for the drug dog before getting him out of the car.
Trooper tells defendant that he smelled cannabis in the vehicle. He asked defendant to explain why he smelled cannabis. Defendant says that there was probably an odor of cannabis on his clothes. He also admitted that he had a “bowl” in the center console.
Why Did the Stop Take So Long?
Oh yea, defendant was on the terrorist watch list. Cop had to make several calls to the feds and was working on confirming Defendant’s identity. The trooper knew, before he gets him out of the car, that the feds cleared Defendant.
What They Find?
Prior to the dog arriving, the trooper searched the truck and found a smoking device and a tobacco package with raw cannabis inside. The dog alerted to the presence of drugs at the back of the vehicle. The troopers pried open the tailgate and found four duffel bags containing 5,505 grams of marijuana.
Did the Trooper Really Smell Anything?
The trooper who stops defendant testified that he could smell a faint odor of cannabis when he first approached the truck. On the squad video he says, “When I was up there talking to him I thought I could smell an odor of burnt cannabis, not raw cannabis. I’m not certain the way the wind was blowing and stuff. I’m not going to call him out on that, and I am going to question him about it at some point. I am not going to use that as probable cause to search the vehicle. I’m not 100% sure about that.”
A second trooper testified that he only smelled a masking agent. Said it smelled like freshly sprayed deodorant. This trooper also had two separate conversations with Defendant. Each time Defendant denied having cannabis in the truck (this was before the get him out the car and he finally admits to the pipe).
A seizure that is lawful at its inception may become unlawful under the fourth amendment if –
(1) the duration of the stop is unreasonably prolonged, or
(2) the officer’s actions during the stop independently trigger the fourth amendment.
See Illinois v. Caballes, 543 U.S. 405, 407-08 (2005).
An investigative stop that is lawful at its inception must cease once reasonable suspicion dissipates, unless there is a separate Fourth Amendment justification to prolong the stop. See People v. Baldwin, 388 Ill. App. 3d 1028, 1033 (2009). “Mere hunches and unparticularized suspicions are not enough to justify a broadening of the stop into an investigatory detention.” People v. Ruffin, 315 Ill. App. 3d 744, 748 (2000).
A routine traffic stop may not be used as a subterfuge to obtain other evidence based on an officer’s suspicion.People v. Koutsakis, 272 Ill. App. 3d 159, 164 (1995).
Where a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person had committed an offense, reliance on that information justifies a stop to check identification, to pose questions to the person or to detain the person briefly while attempting to obtain further information. See United States v. Hensley, 469 U.S. 221, 232 (1985); see also People v. Ewing, 377 Ill. App. 3d 585, 593-94 (2007) (Hensley principles apply to communications sent through dispatch). Evidence recovered during the course of a bulletin stop is admissible if the stop is not significantly more intrusive than would have been permitted by the issuing department. Hensley, 469 U.S. at 233.
Prolonging the Stop Means Illegal Traffic Stop
The record establishes that the trooper waited for approximately 23 minutes before dispatch reported back to him the Defendant was not wanted by the feds. Rather than returning his DL and giving him the tickets, at that point, the trooper gets defendant out of the truck. All of this was done 30 minutes into the stop.
The stop lasted an additional 22 minutes after tickets are written. It seems clear that the troopers prolonged the stop in an effort to obtain incriminating information from defendant.
What About Smell of Weed?
While the smell of burnt cannabis may be sufficient in some cases, in this case the arresting officer failed to supply the articulable facts necessary to support a fourth amendment intrusion.
Trooper testified that he thought he smelled burnt cannabis, but he was not sure. His statements on the videotape of the stop were consistent with his vague statements at trial. On the videotape, the trooper told the dispatcher that he thought he smelled an odor of burnt cannabis but was uncertain because of the way the wind was blowing.
The second trooper did not testify that he thought the “masking agent” was a sign of contraband. Second trooper then asks Defendant directly if he has marijuana. Defendant says no. At that point, any reasonable suspicion that may have been generated by first trooper’s uncertain smell dissipated.
These facts support only a hunch or suspicion of illegal activity. They do not give rise to a reasonable and articulable suspicion that defendant was trafficking cannabis. Thus, beyond the delay pursuant to the terrorist watch list issue, the troopers did not have an independent articulable suspicion to prolong the stop. The continued detention of defendant was a violation of his constitutional rights.