CAN THEY PROVE I HAD A GUN?

Posted on November 18, 2019 by admin

After a car accident, you and the other driver started argueing. You grabbed your cell phone, but the other driver told police you had a gun. You did have a gun in your glove compartment, but you never removed it. Now you are charged with unlawful use of a weapon.

Is the other driver’s testimony enough to convict you? An Illinois court says not necessarily.

In People v. McLaurin, an officer testified that she saw the defendant, a convicted felon, carrying what appeared to be a silver handgun when leaving an apartment building. The officer could not describe the gun or say whether it was a revolver or semi-automatic. A gun was later found under a nearby vehicle.

The court held that where the sole basis of an offense is possession of a firearm, possession of that gun cannot be inferred from circumstantial evidence. Rather, the state must prove beyond a reasonable doubt that the defendant possessed a firearm as defined under Illinois law. The state failed to prove that the officer had in fact seen a firearm, and thus defendant’s conviction was overturned.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. As with most crimes, the state must prove all the elements of the offense beyond a reasonable doubt. An attorney can probe for weaknesses in the state’s evidence: Can the witness see well? How far away was the supposed weapon? Can the witness describe what they saw? Even if the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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WHAT IS AGGRAVATED CRIMINAL SEXUAL ABUSE IN ILLINOIS?

Posted on November 15, 2019 by admin

In Illinois, a charge of criminal sexual abuse can be upgraded to a Class 2 felony if during the offense:

  1. You use a dangerous weapon or other object such that the victim reasonably believes you have a dangerous weapon;
  2. You cause the victim bodily harm;,/li>
  3. The victim is age 60 or older or has a physical disability or severe intellectual disability;
  4. You threaten or endanger the victim or some other person’s life;
  5. The sexual conduct is committed during the course of any other felony;
  6. You drugged the victim without their consent or by threat or deception;
  7. You committed a sex act with a family member under age 18;
  8. You are at least 17 and the victim is under age 13 or you used or threaten force on a victim who is at least 13 but under age 17;
  9. You are under age 17 and the victim is under age 9 or you use force or threaten force on a victim who is at least age 9 but under age 17;
  10. The victim is at least 13 but under age 18 and you are over age 17 and hold a position of trust or supervision such as a teacher or security guard.

See 720 ILCS 5/11-1.60 Aggravated Criminal Sexual Abuse.

If you have been charged with a sexual offense, contact an experienced criminal law attorney immediately. An attorney can review your case for your best possible defense. As with most crimes, the state must prove all the elements of the underlying sexual offense as well as any aggravating factors beyond a reasonable doubt. Can the state accurately identify you? How reliable is the witness’s recollection of events? Is there any possibility you were falsely accused? Was the evidence against you properly handled? Even if the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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CAN POLICE USE A DOG TO SEARCH OUTSIDE MY MOTEL ROOM WITHOUT A WARRANT?

Posted on November 1, 2019 by admin

UPDATED: August 4, 2020

You are staying at a motel. You heard some people with a dog outside your room, but you thought nothing of it. A little while later, the police were at your door. The dog you heard earlier was part of the canine unit, and now police want to search your room.

Can they do that? What can you do?

The Fourth Amendment of the constitution guarantees you the right to be free of unreasonable searches or seizures. The police need probable cause or a warrant to perform a search although there are some exceptions. When you are in a hotel or motel, you have the same expectation of privacy in your room as you would have in your own home. Therefore, the police must obtain a warrant in order to search.

But what about outside your home or hotel room? Police may still need to obtain a warrant depending on if the area searched is within the “curtilage” and whether you have a reasonable expectation of privacy.

To determine if the area to be searched is part of the curtilage, the court looks at four factors: 1) the proximity of the area to the home, 2) whether the area is included within an enclosure surrounding the home, 3) the nature of the uses to which the area is put, and 4) the steps you took to protect the area from observation by people passing by.

For example, in People v. Lindsey, police used a dog to sniff the door handle and seams of defendant’s motel room. The dog alerted police to the presence of heroin, and the police returned with a warrant. The appellate court found the dog sniff violated the Fourth Amendment and overturned defendant’s conviction. However, the Supreme Court reversed this decision.

Applying the four factors, the Supreme Court found that: 1) the alcove was equally close to defendant’s as well as a neighboring room; 2) the alcove was not within an enclosed area surrounding the room; 3) the alcove was not put to personal use by the defendant but was accessible to the motel’s staff and public at any time; and 4) the defendant had taken no steps to shield the alcove from observation by other motel guests or the public.

The court next considered whether the defendant had a reasonable expectation of privacy. The court considers: 1) the person’s ownership or possessory interest in the place, 2) the person’s prior use of the place, 3) the person’s exclusive control of the place or ability to exclude others from it, and 4) the person’s subjective expectation of privacy. The court concluded the defendant had no reasonable expectation of privacy in the area outside his motel room. Therefore, the dog sniff was legal.

If you are the subject of an unlawful search, an attorney may be able to petition the court to suppress the evidence found in the search. The results of an illegal search are known as “fruit of the poisoned tree.” If police have no other basis for your arrest, your case could be dismissed.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

Source: People v. Lindsay.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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THE CRIME OF IDENTITY THEFT IN ILLINOIS

Posted on October 25, 2019 by admin

Illinois law prohibits several types of identity theft. Perhaps the most basic definition is where you knowingly used the personal identifying information or documents of another person to fraudulently obtain credit, money, goods, services or other property or to commit a felony. (See 720 ILCS 5/16-30).

A key element to the offense is the word “knowingly.” To convict you, the state must prove that you actually knew the information or documents you used belonged to another person.

For example, in People v. Fort, the defendant used a credit profile number (CPN) that he had purchased from a website. CPNs can be used to establish alternative credit. This CPN, however, was the social security number of an actual person. As a result, defendant was convicted of identity theft. The court, however, reversed defendant’s conviction because the state had failed to prove that defendant actually knew the CPN belonged to someone else.

Other identity theft offenses under Illinois law include: 1) possessing, selling, buying or manufacturing personal identification while knowing the documents were stolen or with intent to commit a felony; 2) possessing or dealing in document-making implements knowing they will be used to commit a felony; 3) using documents to falsely impersonate another or gain access to their information without their permission; or 4) using a radio frequency identification device capable of obtaining personal identifying information from a radio frequency identification tag or transponder with the knowledge that the device will be used to commit a felony.

If you are applying for a building permit, you may not provide the license number for a roofing or fire sprinkler contractor who you do not intend to use unless you promptly inform the municipality of the change in contractor.

You commit aggravated identity theft if your victim is above age 59 or is disabled or if your actions are intended to further the activities of an organized gang.

If you have been charged with identity theft or a similar crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. As with most offenses, the state must prove all the elements of the crime beyond a reasonable doubt. Can they prove you knew the documents belonged to someone else or that you knew they would be used to commit a felony?

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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CAN EVIDENCE THAT AN OFFICER SAID “FELL OUT OF MY POCKET” BE USED AGAINST ME?

Posted on October 11, 2019 by admin

You were walking through a back alley when the police officer stopped you. In the police report, the officer claims that a packet of drugs or an illegal weapon simply fell out of your pocket. That simply didn’t happen, but this is still the basis for your arrest.

Can the officer get away with that?

The answer depends on how the court views the phenomena known as “dropsy” testimony.

“Dropsy” cases are those where an officer falsely testifies that a defendant dropped contraband in plain view “to avoid the exclusion of evidence on fourth-amendment grounds.” In New York, the problem became known as “testilying.” In these cases, it can be the officer’s word against the defendant’s.

When dealing with “dropsy” testimony, some courts refuse to admit it is a problem while others reject all “dropsy” testimony as a matter of law. Most courts, however, evaluate the credibility of the officer’s testimony in each case. Would the officer’s stop or search of the defendant violate the Fourth Amendment if the defendant hadn’t “dropped” the evidence in plain sight? If not, the officer’s testimony is more credible because the officer has nothing to gain by lying. If, yes, the officer’s incentive to lie to avoid suppression of the evidence is higher.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. The outcome of your case can become very fact- and judge-specific. An attorney who is familiar with the courthouse may be in a better position to present the facts of your case in their most favorable light.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

Source: People v Campbell

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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CAN I BE CHARGED WITH AGGRAVATED BATTERY IF THE OFFICER IS OFF DUTY?

Posted on September 27, 2019 by admin

You picked a fight with the wrong guy–an off duty police officer who was moonlighting as a bouncer at your favorite bar. The charge would have been simple battery if the bouncer hadn’t been a cop, but instead you are charged with aggravated battery. Since the officer was off duty, can you still be convicted?

The answer is yes, provided the officer was performing his official duties. A recent Illinois case has held that preventing a crime, even to himself, falls within an officer’s official duties even if the officer is off work at the time.

In People v. Brewer, the defendant was convicted of first degree murder based on killing an officer in the course of his official duties. In this case, the state sought a higher sentence based on the victim’s status as an officer rather than asking for increased charges. The defendant argued that the officer was merely trying to defend himself as a crime victim and was not acting in the course of his official duties. The court disagreed.

The court held that any action taken by an officer to prevent a crime, including a crime against himself, was taken in the performance of official duties. An officer has the duty to maintain public order wherever he or she may be. The officer’s duties are not limited to a specific time and place. The defendant’s actions toward the officer was the crime which the officer had a duty to prevent.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Can the state prove all the elements of your offense beyond a reasonable doubt? Even if the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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THE CRIME OF UNAUTHORIZED VIDEO RECORDING IN ILLINOIS

Posted on September 20, 2019 by admin

In these days of ready access to webcams, cell phones and live video streaming, Illinois law has laid down some limits. Ignoring those limits can cost you criminal charges.

Under 720 ILCS 5/26-4, you may be charged with a misdemeanor or felony if you knowingly make a video or transmit live video of another person without that person’s consent in any of the following places:

(a) In a restroom, tanning bed, tanning salon, locker room, changing room, or hotel bedroom. (It is also illegal to place or cause to be placed a video recording or transmitting device in any of those places. Note that the definition of restroom is not limited to public facilities but includes restrooms in a person’s home).

(b) In another person’s residence without that person’s consent. (The definition of residence includes a rental dwelling but does not include areas to which the general public has access such as halls or stairways. Again, placing a video device in such an area is illegal. In People v. Maillet, the court held that the law applied where defendant recorded another resident in defendant’s own home).

(c) Outside the other person’s residence through use of an audio or video device that records or transmits from a remote location.

(d) Under or through clothing worn by the other person in order to view their body or undergarments.

You may also be charged if you knowingly disseminated or allowed such a video to be disseminated if you knew the video was made in violation of the law.

The law does exempt law enforcement officers, correctional officers and news reporters in certain situations such as where an officer pursues a criminal investigation or a news reporter covers a sports event from the locker room.

If you have been charged with a unauthorized video recording or other offense, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Do the police have probable cause to arrest you? Can the state prove all the elements of your offense beyond a reasonable doubt? Even if the police acted lawfully and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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WHAT ARE YOUR CHILD’S RIGHTS WHEN QUESTIONED BY POLICE?

Posted on September 10, 2019 by admin

After getting in trouble at school, your minor child was questioned by police. You were not present, and your child was scared and started talking.

What are your child’s rights?

Under 705 ILCS 405/5-401.5, your child’s statement is presumed inadmissible as evidence if an officer or other public official takes your child’s statement during a custodial interrogation without first reading your child his or Miranda rights. The officer must then ask: (A) “Do you want to have a lawyer?” and (B) “Do you want to talk to me?”

Further, any statement your minor child makes as a result of custodial interrogation conducted at a police station or other place of detention is presumed inadmissible as evidence unless the custodial interrogation is electronically recorded, and the recording is substantially accurate and not intentionally altered. Recording is only required for certain offenses such as felonies and misdemeanor sex offenses. An unrecorded statement may still be admitted under certain circumstances, such as when 1) electronic recording was not feasible, 2) your child spontaneously says something that wasn’t responding to a question, or 3) your child asks to talk without being recorded.

A statement made without the above safeguards may become admissible if the state can show by a preponderance of the evidence that the statement was voluntarily given and is reliable based on the totality of the circumstances.

Whether the above safeguards apply may depend on if your child is considered to be “in custody.” The above law defines “in custody” as “any interrogation (i) during which a reasonable person in the subject’s position would consider himself or herself to be in custody and (ii) during which a question is asked that is reasonably likely to elicit an incriminating response.”

If your child has been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your child’s case for its best possible defense. Was your child in custody? Did the police follow proper procedures? Can the state prove all the elements of your child’s offense beyond a reasonable doubt? Even if your child’s confession is admissible, an attorney can help protect his or her rights going forward and may be able to negotiate a more favorable plea agreement than you could on your child’s behalf.

If you have questions about this or another related Illinois criminal matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

See also In re Jose A.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in interrogation, juvenile, juvenile delinquency, police questioning | Leave a comment

WHEN AM I CONSIDERED UNFIT TO STAND TRIAL IN ILLINOIS?

Posted on August 28, 2019 by admin

You must be fit to stand trial before you can be prosecuted. You must also be fit before sentencing or entering a plea agreement. Under Illinois law, you are not considered fit if you cannot assist in your defense or understand the nature and purposes of the proceedings against you because of your mental or physical condition.

If your fitness is in question, your attorney must raise the issue before a plea is entered or before, during or after trial. In other words, you cannot claim you are unfit after you have entered a plea agreement or been sentenced.

If there is bona fide doubt as to your fitness, the court must order a determination of that issue before moving forward with a plea agreement trial or sentencing.

Before trial and at your request, a qualified expert may be appointed to examine you in order to determine whether a bona fide doubt as to your fitness to stand trial may be raised. If there is such a doubt, then the court may order an appropriate examination. However, the order for an examination will not prevent further proceedings in the case from taking place.

When a bonafide doubt as to your fitness has been raised, the state must prove by a preponderance of the evidence that you actually are fit or else the case cannot move forward. The court may also call its own witnesses and conduct its own inquiry.

If you are deemed unfit, the court may rule on any motions where your presence is not essential to fairly determine the issues.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. If there are questions about your fitness, an attorney can help present them to the judge.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

See 725 ILCS 5/104-11 and People v. Westfall.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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CAN I BE CONVICTED OF DISORDERLY CONDUCT FOR ASKING A QUESTION?

Posted on August 17, 2019 by admin

(Updated 1/4/24: See our related posts at What is the Difference Between Felony and Misdemeanor Disorderly Conduct? and Disorderly Conduct: Calling in a False Alarm).

You were just curious, so you called a government office and started asking questions. You wanted to know how they handle threats involving guns or bombs. Something in the nature of your questions spooked the office manager, and now you have been charged with disorderly conduct.

Were your questions enough to get you convicted? What about freedom of speech? What can you do now?

In Illinois, depending on what you said and how you said it, you could be convicted of disorderly conduct. (See 720 ILCS 5/26-1(a)(1)). To do so, the State must prove beyond a reasonable doubt that you “knowingly” committed an act in an unreasonable manner that you knew or should have known would tend to alarm or disturb another so as to cause a breach of the peace. The court looks at the unreasonableness of your conduct and its tendency to disturb. You need not have made overt threats or used abusive language.

In People v. Swenson, the defendant asked a school what would happen if he showed up on campus with a gun, whether the school had bulletproof windows, and how long it would take for police to arrive. Amidst other bizarre comments, the defendant asked the school principal if she was prepared to have the “sacrificial blood of lambs” on her hands. The court held that under the circumstances, defendant clearly exceeded the bounds of reasonableness and that he should have known his conduct would be disturbing. The court also held that the First Amendment did not protect the manner in which defendant expressed himself.

If you have been charged with disorderly conduct or a similar crime, contact an experienced criminal law attorney immediately. Can the state prove all the elements of your offense beyond a reasonable doubt? A determination of disorderly conduct is very fact specific. An experienced attorney, who knows the courthouse, may be able to present your facts to a judge in their most favorable light.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in disorderly conduct | 2 Comments