Articles Posted in Criminal Cases

In a closely-watched decision regarding the privacy rights of cell phone users and the power of the police to obtain cell phone tracking information, the United States Supreme Court ruled that the police must obtain a warrant before obtaining the tracking information for the cell phones for most cellphone users.

Timothy Carpenter was suspected in a series of robberies of RadioShack and T-Mobile stores in several States throughout the country. The FBI had obtained a simple court order allowing them to obtain 27 days of Carpenter’s cell phone location data from Sprint and from MetroPCS. The court order that had been used by the FBI was a simple court order that did not require that the FBI show probable cause for a search warrant. In response to the court order, the FBI was given a 12,898 location point catalog of where Carpenter had been over a period of 27 days. The location data represented an average of 101 data point locations per day. Carpenter was eventually convicted of the robberies and sentenced to over a hundred years in prison. During closing arguments, the prosecutor made a major point of the location data to help bolster his argument that Carpenter had committed the robberies.

On appeal, Carpenter argued that the location data that had been obtained by the FBI should not be admitted in his case because they were obtained without a search warrant. Lower courts disagreed with Carpenter and ruled that the FBI was not required to obtain a search warrant in order to get the location data from the cell phone providers.

I recently met with a client who had a jury trial for a Domestic Battery charge. After several days of a trial and deliberations, the jury could not agree on a verdict and the judge declared a mistrial. Shortly after the mistrial was declared, the prosecution decided that they would retry the client and he came to my office looking to hire me for the second trial. The client had several questions about what happens at a re-trial and whether Double Jeopardy applied to his case. I answered his questions and realized that people misunderstand what Double Jeopardy means.

In order for you to be convicted of a crime by a jury, all 12 members of the jury must agree that you are guilty. At the same time, in order to be found not guilty of a crime by a jury, all 12 members of the jury must agree that you are not guilty. Their verdict must be unanimous. If a jury is unable to come up with a unanimous verdict, the Court will declare a mistrial. A mistrial does not necessarily mean that the case is over. When a mistrial happens, the prosecution will decide whether they want to try you once again for the same crime. The decision about whether the state will try you again for the same crime is a decision that rests with the prosecution. From experience, prosecutors will take a variety of factors into consideration when deciding whether to have another trial. A major factor for prosecutors is how close did they come to winning the first jury trial? In other words, if a vast majority of the jurors were in favor of finding you guilty, it is much more likely that the state will try you again. If the vast majority of the jurors were in favor of finding you not guilty, it is much more likely that the state will drop the case and not seek another trial.

The legal grounds for you not to be subjected to another trial can be found in the Fifth Amendment to the United States Constitution and Section 10 of the Illinois Constitution.

Last week I had a meeting with a client in my office in Schaumburg who was being charged with a felony in Rolling Meadows. The client has a lawyer who was representing him for the case. The client came in for a consultation because he was not happy with the services that his current lawyer was providing and was considering hiring me to represent him in the case. The client told me that he had spoken to his lawyer and requested copies of the police reports. His lawyer refused to provide copies of the police report and the client was very upset with that decision.

This is a very common scenario. I frequently talk with clients who want copies of the police reports so that they can review them at home with their friends and family. I’m sure that many of those clients want to talk to another lawyer and get a second opinion. When a criminal defense lawyer tells a client that they cannot give them copies of the police reports, the clients usually think that’s because the lawyer doesn’t want to lose the case. While that may be the reason behind refusing to give a client police reports in some cases, people need to understand that your criminal defense lawyer is prohibited from giving you copies of the police reports. Let me explain why.

Your lawyer is required to follow certain rules. Your lawyers’ conduct is governed by the Rules of Professional Responsibility. Those rules provide for certain ethical responsibilities that lawyers have to their clients and to the Court. The Supreme Court of Illinois has also enacted certain rules which limit what your lawyer can, or cannot do. The Supreme Court Rules govern what happens in court and what your lawyer can or cannot do while they are representing you in a criminal case in court. Your lawyer is required to follow all those rules.

It is common to have a client come into my office who is facing criminal charges resulting from a search of their vehicle by a police officer. Many of those clients want to know whether the police had the right to search their vehicle and whether I can have the evidence that was recovered thrown out of Court. There’s no simple answer to this question. Whether the police had the right to search the vehicle and whether I can convince the Court to throw out the evidence depends on the facts of each individual case. I want to talk a little bit about the general rules and what the constitutional limits are when it comes to the police searching a motor vehicle.

Generally speaking, the police cannot search your vehicle without a warrant. The Fourth Amendment to the United States Constitution protects us from unreasonable searches and seizures when we have a reasonable expectation of privacy. Courts have consistently ruled that we do have a reasonable expectation of privacy in our motor vehicles. At the same time, the Courts have recognized that there is an “automobile exception” to the search warrant requirement when it comes to our cars. The “automobile exception” provides that individuals have a lower expectation of privacy when it comes to their cars as opposed to their homes. The Fourth amendment creates minimum requirements that apply to all states and in all cases. However, states are free to grant their citizens more rights than what’s afforded to them by the United States Constitution.

The police can search your vehicle without a warrant only under certain limited circumstances. The limited circumstances are set forth as follows:

This is a question that I am asked frequently around election time.  Most people do not understand what the rules are when it comes to whether you are allowed to vote if you have a felony conviction.  Rules vary from state to state and this has created confusion.  People don’t understand that each state has it’s own rules which requires that people with felony convictions inform themselves of what the rules are in their state. My experience with this issue is that most people are not informed as to what the law is in Illinois when it comes to felony convictions and voting rights in Illinois. Illinois has passed a specific law which spells out what effect a felony conviction can have on your right to vote in Illinois.  The law is set out in 10 ILCS 5/3-5.  In Illinois, a convicted felon has just as much of a right to vote as any other citizen in the state.  As long as you are not incarcerated, meaning serving a prison sentence, you can register and cast a vote in Illinois.  If you are in court and fighting your case, you can vote in Illinois.  Even if you are in jail fighting your case. If you are on probation, you can vote in Illinois.  If you are on parole, you can vote in Illinois.  As long as you have not been convicted and are in prison, you can vote.  However, if instead of being in prison, you are allowed to serve your sentence outside of prison, such as prison furlough or work release, you will not be allowed to vote until you finish your sentence.  If you went to prison and lost the right to vote you should re-register once you are released from prison so that you can go to the polls and cast your vote.

When someone is not allowed under the law to vote, they are called “disenfranchised” voters.  In 2010, roughly 2.5% of the nation’s voting age population could not vote because of a felony conviction.  In Illinois, that comes out to about 800,000 people who have been convicted of a felony.  If 800,000 people do not realize that they have not been stripped of their right to vote, and sit out an election because of their mistaken belief, this could make a big difference in a close election.  In my opinion, which is based on the questions that I get from criminal clients, as well as members of the public, not enough is being done to educate the public about this issue.

In seven states, people convicted of a felony are barred forever from ever voting.  Florida has the largest number of disenfranchised voters with roughly 10.42% of all voters.  In two states, Maine and Vermont, even prison inmates are allowed to vote.  In other states, convicted felons are required to petition the Governor to have their right to vote reinstated, or restored, once their sentence is completed.

What determines how serious a particular criminal charge in Illinois is depends on the potential criminal penalty that the crime carries. The lowest classification of crimes in Illinois is called a Misdemeanor. The highest classification of crimes in Illinois is called a Felony. Generally, any jail sentence for a Misdemeanor must be served in County Jail. Any jail sentence for a Felony must be served in State Prison. Any potential jail sentence for a Misdemeanor is under one year while any potential jail sentence for a Felony is one year or more. The range of penalties for Misdemeanors and Felonies in Illinois depend on what Class the crime you are charged with falls in. Every criminal offense is classified as a Felony or a Misdemeanor and assigned a specific Class. An experienced and knowledgeable criminal defense lawyer will know whether you are being charged with a Felony or a Misdemeanor and what class your criminal charge falls in.

Most Misdemeanor cases in Illinois are Class A Misdemeanors. A Class A Misdemeanor is punishable by a maximum of one year in county jail and a maximum fine of up to $2,500. An example of a Class A Misdemeanor is a Retail Theft or a simple Battery. But not all Class A Misdemeanors are treated equally. Domestic Battery is a class A Misdemeanor. However, if you are found guilty of a Domestic Battery, it can never be removed from your record while a Retail Theft can be. In addition, you can receive Court Supervision for a Retail Theft but you cannot receive Court Supervision for a Domestic Battery.

A Class A Misdemeanor that I am seeing more and more in court is Aggravated Speeding. You can be charged with a Class A Aggravated Speeding offense if you are speeding 35 miles or more over the posted speed limit. This crime used to be a simple speeding ticket. That is no longer the case in Illinois. So, if you are speeding 35 miles an hour over the speed limit, then you can be charged with a Class A Misdemeanor which carries a potential jail sentence of up to 364 days in County Jail and a fine up to $2,500.