Soul Searching – Why do you let them search?

Most misdemeanor drug cases start with a traffic stop. Many felony cases do as well. It make sense that the lawman would pull over a car for a traffic offense. What doesn’t make sense (to me, anyway) is that the majority of traffic-turned-drug stops are the result of people in the car giving consent to search. I would be a very wealthy man if I had $10 for every conversation at my office that went roughly like this:

Me: Ok. Then what happened?
Accused: The officer asked if he could search.

Me: What did you tell him?
Accused: I told them he could.

Me: Why did you tell him he could search if you thought there might be contraband in the car?
Accused: I didn’t want to look guilty.

You think politely telling the police they cannot search makes you look guilty? Know what really makes you look guilty?  Standing on the side of the road in handcuffs while the police pull out 10 pounds of weed from your car.  It’s not possible to look more guilty.

The idea that people don’t want to “look” guilty is actually a bit disturbing.  Long before any of us were on this planet, the people responsible for founding our nation weighed in on searches by the government.  You know what they said about looking guilty?  Here’s what they said:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That, of course, is the text of the Fourth Amendment.  The drafters of the Bill of Rights didn’t think you would look guilty for refusing a search.  So, to whom do you think you look guilty?  The Police?  Guess what? He already thinks you’re guilty, that’s why he wants to search.

In many cases you have no ability to keep the government out of your life.  In everything from how long your lawn may be to whether you may put a boat in the water without registration, you don’t really have a “right”.  Unless there is a warrant, exigent circumstances, or some other exception, the Fourth Amendment says you do have a “right” when it comes to searches.  Americans pitched British Tea in the harbor and then fought and died for the freedom to painstakingly draft and ratify the text of the Fourth Amendment.  My experience is that people are a lot more willing to gloss that over in the face of a request from the local patrol officer.

The next part of the conversation re-enacted above has me talking to the person about their specific case, and what they should have or could have done.  I can’t give out general advice over the internet to cover each specific police interaction, so don’t even think about taking my musings here as advice for what you should do in your specific situation.  Doing so would be silly in light of the fact that I do fee consultations, anyway.  Just call me.  The best general advice I could give out is that if you ever get asked by the police if they can perform a search, it would be wise to call a lawyer for advice.  Right then and there.

I will, however, say this.  I have nothing illegal in my car.  I have nothing illegal  in my house.  Plain and simple, I have nothing illegal.  If the police ask me to search, though, my answer is “No”.  I don’t care what they think of that.

 

 

Sometimes you are guilty before you are even charged

It’s not easy doing what we do.  The general public thinks prosecutors are too easy on crime.  The police labs get to test everything before we get to see it.  New things always pop up in trials that aren’t in any police report that was given to us.

Worse than all of that, though, is the information that is passed on by the police early in a case.  The person who controls the information is in the drivers seat for controlling opinions.  If you think about it, that’s really what trials are… a contest of facts used to control opinions.

In nearly any big case, the police get first crack at spinning those facts.  Either through press releases, press conferences, or interviews with the media, the police have the first crack at getting out their side of the story.  That news story you just watched about the guy who was arrested 5 minutes ago?  The information came from the police.  Sure, in a follow-up story 6 months down the road you might see a defense attorney quoted.  Not for that first, important impression, though.  This might not be as troubling if the police were always correct in their initial reaction.

I’m not blaming the media, really.  They have to report based on what they know.  Seeing as the criminally accused like to wait until the absolute last possible minute to call a lawyer (usually even after they have already talked to the police), the cops are the only one who could talk to the media.  Nobody else knows anything.  That initial release of information very well may have a huge impact on whether or not somebody might get a fair trial.

That’s why this article in the Daily Herald is a bit perplexing. The police, to their credit, seem to stay as objective as the can.  Clearly they are looking to charge Mr. Ferrigan with the crime.  They are upfront in saying that there is not enough evidence yet, though.  This seems appropriate.

My gripe in this case is with the paper.  Most notably, with the picture.  This guy hasn’t been charged in this murder. Yet, the headline “Hanover Park Murder Probe Continues” is running on the front page with the picture.  What’s wrong with the picture?  It’s a mug shot.  Ferrigan is wearing a jail-issued top.  This mug shot has nothing to do with the murder probe. Nothing.  It’s from a different case.  A little suggestive, don’t you think?  How is that guy ever going to get a fair trial?

I’m not sure who made the call to run that picture.  It very well may have been made by editor/author Charles Keeshan.  I know Keeshan.  He is a talented journalist who has uncovered some fairly exciting stuff, and an extremely fair guy.  It’s just that this picture seems to imply much more than the actual, written story would suggest.  Or that the police are even willing to say.

Obviously my perspective is different than the news outlet’s.  The paper is trying to give its readers as much info as possible.  For whatever reason, readers like to see how people look.  I get it.  I just wish they wouldn’t run that picture as part of an article where a guy hasn’t even been charged.  That doesn’t seem like it’s asking too much.

 

Bin Laden is not just a river in Egypt.

The morning of September 11, 2001 I showed up to work to find out that “we were being attacked.”  Not being sure what that meant, I did exactly what I do- grabbed my files and went to court.  When I walked into the courtroom the details were still fuzzy.  It wasn’t until after I finished a morning of helping the misguided youth of juvenile court that I figured it out.  Despite my insistence at that time that I was not willing to let 9/11 affect my daily life, change under the guise of “increased security” was foisted upon me.

When will we ask if it was worth it?

Some of that change was small and innocuous.  The McHenry County Courthouse put up a small landscape barrier outside the courthouse so, presumably, nobody could drive a truck into the first floor.  Lawyers previously given a pass through security at some courthouses were required to undertake the same security measures as the general public.  Airline baggage checks were required to ask us if our bags had been out of our site.   Banks were required to report a wider range of transactions to the federal government.

Other changes were not.  Nearly every courthouse got newer, “better” metal detectors and beefed up security. We were told by the appeals courts that “in this age of routine, soon to be universal” that “reasonable” security measures in the new era may not be more intense than what was reasonable before 9/11. (see U.S. v. Allman, 336 F.3d 555, 557-558, 7th Cir 2003, “If anything, it was irresponsible of the postal authorities to ship the box to Chicago without first x-raying it.”)  Even the McHenry County Sheriff’s office secured an intimidating, expensive armored personell carrier.

credit: http://www.firstelectricnewspaper.com/2009/08/lith-car-show-promotes-national-night.html

A lot has happened in the last decade.  Terror levels have risen and fallen.  Security measures have continued to increase.  Courts have seemingly expanded the spectrum of “reasonable” searches based on our new experiences.  The economy has tumbled.  Bin Laden has died.

Nearly ten years after I was wary of the impending reaction to the 9/11 tragedy, my reservation has morphed to frustration.  The economy is horrible.  Even locally, it looks like millions of dollars have gone into increased security measures.  When will it be time to ask if those dollars are doing what lawmakers think?

I am not saying that increased security measures were un-necessary.  Or that increased airport security is bad. Or that any security increases have been bad.

What I am saying is this:

My “everyday” life is affected by the post-9/11 security measures.  I pass through security 8-15 times per week at any one of a dozen courthouses I regularly visit.  All of them have different security measure in place.  Most of them have, presumably, received more modern equipment or better services since 9/11.  Many of them are now staffed with more people.

Ask any lawyer who regularly goes to different courthouses if some are safer than others.  You’ll probably get a chuckle followed by a rank-ordered list of courthouses that do not quite seem to be as secure as they look.  You will probably also get a list of suggestions on how to remedy that.  Many of those suggestions will cost less and be more effective than new body scanners, or whatever else is en vogue with the sales staff at security firms.  Metal detectors are rarely the weakest link.

We’ve spent a lot of money on increasing security at the courthouses in the last ten years. Presumably, the increased spending has lead to increased security.  At least I get the impression the “spending” authorities feel that way.  Despite all of the spending, it sure appears that some of the courthouses are no more secure than they were before 9/11.

It’s well past time we explore that presumption, and spend on measures that actually increase security.  Every dollar spent which fails in its effort to make a courthouse more secure is money wasted.  Some money we’ve spent has been wasteful.  Answering the questions of “Which money?” and “How much?” might be a first step ushering in a more efficient, more secure, post-Bin Laden era.

Until then, we live in a state of denial over how effective our security spending has been.

Illinois lawmakers want drug dealers at your local schools?

I have a practical take on the law. By that, I mean that laws which don’t produce their intended consequences need to be changed. Or repealed. Laws that don’t have the everyday results that they should are merely useless rules. I hate rules.

What is worse than laws that fail to live to their intended consequences are laws that harm those they are intending to protect. There are a lot of them. Some of the biggest, meanest, most “get tough on crime” laws out there might cause innocent people to become harmed. DUI laws making the roadway more dangerous? Yeah. Narcotics laws encouraging drug transactions near schools? Absolutely. Don’t believe these types of laws are on the books? Nobody ever believes me…

Gangs?  Guns? How close can we get them to the local park?

Except, of course the Illinois General Assembly. Your legislators are contemplating change of what is probably the easiest, most politically safe of these laws. There is a bill in the pipeline that may change the Drug Induced Homicide law. This is long overdue.

For those not in-the-know, the current law punishes just about anybody who provides an illegal narcotic to somebody who subsequently dies from that narcotic.  It doesn’t rise to the level of requiring the “provider” to sell the drugs.  You may just be handing them from one person to the user.  Passing them across the table.

The problem is that this law makes no exceptions.  So, as things go in the drug world, people are splitting drugs- maybe passing a baggie back and forth- and one of them accidentally overdoses.  Does the other user call an ambulance?  Hell no.  If the overdose victim dies, the other guy is looking at spending some quality time caged up like a dog.  The current law encourages the very homicide it is attempting to punish.

The new law provides an incentive to the second user to call the police.  To help.  To do everything possible to prevent the overdose from turning into a homicide.  That makes more sense.

Before anybody chimes in to let me know that drug users get what they have bargained for, I’m making no judgment about the legalization of narcotics, or the character of those who use them.  That is not the issue.  I am saying that if the Illinois General Assemby is going to put money, time, and effort into drafting laws, then they should at least make sense. Or, at least not be circular.

Nevertheless, the criminal code is packed with these circular laws.  Call me crazy, but I think that criminal laws should do everything to keep kids at schools and parks safe.  Places where kids hang out should be sanctuaries free of the stray bullets and shady dealings of drug pushers.

You want people dealing drugs near your kid’s school? You got it! Gangs?  Guns? How close can we get them to the local park?  Don’t believe me?

Illinois law punishes the sale of narcotics near a school as a Class X felony. On the surface, this looks great.  A class X felony is the most severe class a crime can be, unless it’s a murder.  Let’s hammer those drug dealers hanging out on the school playground!

Wait just one minute.

Picture the following: You’re a young, aggressive cop.  You’re 2-3 years past your initial training and starting to get the job figured out. Because you’re young and you look it, the department assigns you to the narcotics task force.  You’re doing exciting undercover work.  The task force is funded in part by grants from the state and feds- and your mission is to get the biggest and baddest dealers of the street. Any patrol cop can pick up a gram of weed or trace amounts of cocaine here and there.  The task force goes after the big fish, and publicizes major busts to show the public it is making a difference.

You work hard on the task force.  You get a petty user to flip and introduce you to his dealer.  You go make some small buys from the dealer.  He has you meet him in a parking lot.  He has you meet him at the mall.  The dealer gets comfortable with you, and now you’ve got his cell phone and deal with him directly.  Time goes on, and your buys are more frequent and a little larger… not large enough to be considered a big deal to the task force, though.

One day you text him telling him you need drugs.  How much?  Whatever he’s got.  He says he can be ready in an hour, and asks if you can meet by the mall.  “I’m on the other side of town… any way you can meet me over here?”  He’s done this before, so he trusts you.

What do you do?  You give him a location near the school.  Why?  Because today is the day that you and the rest of the task force are taking him off the street. And you want to catch him red-handed.  With drugs.  You also want to take him down for as long as possible. You want the class X, and he needs to be near the school for that to happen.

It all sounds reasonable, right?  Get that guy off the street for as long as possible?  Sure.   The aim of the special rule for selling drugs near a school is keep the drugs away from the school, though.  It’s putting those kids it attempts to help in greater harm.  By making it a bigger bust, though, there is incentive to get the dealer, his drugs, and possibly his firearms near that protected sanctuary.

You think it doesn’t happen?  I’m guessing you’re not a criminal defense attorney in Illinois. Or you haven’t been very long.  It happens all the time.

It’s easy to bury the practical realities and support politicians who pound their fists and claim to be “get tough on crime” politicians.  It’s not easy to look at how these laws actually play out in the real world.  Again, I’m not taking a position on drug laws- I’m saying that if you make the punishment uniform across-the-board less dealers (including their drugs, guns, and other problems) would be near schools.

That’s just the start of it, too.  You think DUI laws should get drunks off the road?  Sometimes they do, sometimes they absolutely do not. Maybe it’s not a law, but what about MAAD?  Should they be helping obtain guilty convictions, or not guilty verdicts after trials?

A law that doesn’t do what it is designed to do is just a bad rule. I hate rules.