See Navarette v. California, 134 S.Ct 1683 (2014) (April). Episode 101 (Duration 21:22).

Live streaming while driving drunk is one thing…but what about an anonymous complaint? Can any old complaint of your driving get you pulled over?

So live streaming your own crime of drunk driving is definitely going to get you pulled over. But can an anonymous tip or complain that you are driving drunk also get you pulled over?

How It Begins…

The case began when an anonymous 911 caller called the police and reported that a

“ …silver Ford F150 pickup truck with license plate number 8D94925 had run an unidentified reporting party off the roadway … ”

An officer:

* Finds the truck

* Follows It

* For Five Minutes

* Finds or Sees Nothing

* Driver is Driving Fine

So, naturally the officer stops the car anyway.

Police say they smelled marijuana. They search the truck and 30 pounds of weed are found. Wham! The case gets litigated all way to the Supreme Court.

The Law On An Anonymous Tip

The law in this area has been (and I think still is) that… 

The Fourth Amendment “permits brief investigative stops”

 …when law enforcement has some “particularized and objective basis for suspecting the particular person stopped of criminal activity.”

This is basic Terry stop principles.

When it comes to anonymous tips, without more, the tip: 

“seldom demonstrates” a sufficient “basis of knowledge or veracity” to justify a stop. However, where a tip bears “sufficient indicia of reliability” rising to “reasonable suspicion of criminal activity,” an investigatory traffic stop may be justified.

So an anonymous 911 call requires some indicia of reliability.

Factors of Reliability

In this case, the facts revealed that three important factors of reliability existed.

* The reporter had necessarily claimed eyewitness knowledge of . . . dangerous driving.

* Given the time frames involved the tipster likely called the police right after he or she was run off the road. Temporal proximity is still an important indicator because the U.S. legal system “generally credits” the notion that “contemporaneous reports” will be “especially trustworthy.

* The fact that the person called 911 is significant. This suggests the tip was truthful because the system’s design makes it possible to identify and trace callers” and safeguard against false reporting. Thus, “a reasonable officer” might expect a liar to avoid dialing 911.

Factors Against Reliability

In this case, the facts revealed five important factors that weighed against reliability.

*  Caller was anonymous. Anonymity is inconsistent with accountability. Why would the caller not want to be identified?

* For five minutes police saw no bad driving, thus discrediting the concern over an intoxicated driver.

* An “eyewitness” contemporaneous caller does nothing to corroborate a likelihood of criminal activity. Exactly how does immediacy lends to credibility? In this case, a person driving on the streets saw a truck and had enough time to write the license plate down. So What?

* Most people are unaware that 911 callers can be identified.

* What does “ran me off the road” mean? This raises no likelihood that the driver was drunk...

Confidential Informant Definition

The use of confidential informants is pretty common in drug cases.

Confidential Informant Case Law

The confidential informant case law says due process requires and demands that these contracts be enforced against the government.

The principle for enforcing cooperation agreements arises under the due process clause of the fourteenth amendment. State v. Wacker, 688 N.W.2d 357, 362 (Neb. 2004); People v. Manning, 672 P. 2d 499, 504 (Colo. 1983). “Generally, fundamental fairness requires that promises made during plea-bargaining and analogous contexts be respected.” Wacker, 688 N.W.2d at 362.

Contract Principles Apply

Further, courts construe cooperation agreements under contract principles.

Cooperation agreements are construed strictly against the government and courts should not hesitate to scrutinize the government’s conduct to ensure it comports with the highest standard of fairness.

Confidential Informant Agreement

In addition, a confidential informant agreement does not need to be in writing, although courts prefer they be put down in writing is preferable.

However, whether the agreement is in writing or conveyed verbally, police officers have the power, by their words, to bind the prosecution to a resolution that is enforceable.

Finally, words employed with ambiguous meanings should be carefully considered but, in the end, should be construed against the government, especially when those words are relied upon to persuade a defendant to act in exchange for dismissal of pending charges.

Confidential Informants Are Recruited After An Arrest

What happens after a drug arrest?

A pretty common scenario after a drug arrest goes something like this:

* Defendant is brought into an interrogation room very soon after the arrest. No paperwork or processing has been done yet.* Cops have found something, and the accused knows it.* Eventually, after the defendant has conceded his involvement the topic of conversation switches to the options facing the defendant.* There are always two doors he is told he can walk through. This is where they start talking about what he can do to “help himself out.”

This is typically who most confidential informants are recruited and pressured to cooperate with police.

Confidential Informant Charges Dropped

Where the government enters into an agreement with a prospective defendant and he acts to his detriment in reliance on the agreement, as a matter of fair conduct, the government is required to honor such an agreement.

Often defendant’s have to make full confessions to their own crimes. In exchange, the state agrees that confidential informant charges are dropped or dismissed.

It would be unfair and a due process violation to allow the prosecution to exploit a confidential informant, have that person incriminate themselves, use that person for information then turn around and charge the informant with their own crimes.

Motion To Dismiss

Below are a two Illinois case where the state charged an informant with their own drug crimes even though the defendant had agreed to become a confidential informant for the police.

In each case the defendant had to file a motion to dismiss in order to enforce their agreement wit...

Courts have demonstrated quite well their unwillingness to toss a case because of an officer’s DUI errors and omissions. This doesn’t mean the defense bar has to lie down and take it.

William Pelarenos

DUI Expert Witness William Pelarenos sits down again with us to talk about the trends he has been seeing in DUI arrests.

William is the author of DUI’s Decoded and has been admitted in Illinois courtrooms as an expert witness in DUI field sobriety tests.

Recent Trends

The reviewing courts have let us know that they will not toss a case simply because an officer has committed a substantial error or omission.

Three recent cases have made it loud and clear that defense attorneys should not turn to a dismissal or to suppression of evidence as a remedy.

These cases are:

* People v. Strobel

*

People v. Olson

*

People v. Moises

Errors & Omissions

What exactly is going on out there?

We know that officers are …

Failing to Position the Squad to Record The SFSTs

Turning Off Their Microphones

Providing Inaccurate Instructions

Incomplete Field Notes

Creating Inaccurate Reports

Fight Back

With the help of a qualified DUI expert the defense bar can begin to fight back.

We don’t have to take it lying down anymore. First, we have to be keen enough to spot the errors and omissions being committed by DUI officers. To learn more about what happens after a DUI arrest go here.

Second, we have to be able to articulate the significance of the errors to a judge or jury.

And finally, we can make darn sure we are using the errors and omissions to confront and cross-examine an arresting officer. No, we are not going to get evidence tossed or a case dismissed.

But we can try our hardest and do our best to have an effective cross examination.

See People v. Way, 2015 IL App (5th) 130096 (August). Episode 097 (Duration 11:33).

This proximate cause DUI Defense was not allowed to be raised by this defendant. Have you ever even heard of the proximate cause DUI defense?

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When you read this one you’ll have to do a double take to let it all soak in.

This is What Happened

Defendant was driving in her car when according to her son, who was in the passenger’s seat, she started to fall asleep.

In a moment, she starts to drift across the center lane.

Her son struggles to grab the wheel to turn them back into their own lane.

… but he’s too late.

The car collides head-on with another car being driven by a pregnant lady.

* Nobody died

* The son and the lady are seriously injured

* Baby is born a-okay

The Charges

Defendant was charged with aggravated DUI –625 ILCS 5/11-501(a)(6), (d)(1)(C).

The 501(a)(6) section is the normal misdemeanor DUI for any amount of cannabis whether it’s under the influence or not.

The (d)(1)(C) part is the “aggravated” part for causing great bodily harm, a class 4 felony. This section reads, in part:

“…Every person convicted of committing a violation of this Section shall be guilty of aggravated [DUI] if the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in great bodily harm … to another, when the violation was a proximate cause of the injuries…” 625 ILCS 5/11-501(a)(6), (d)(1)

Defendant was still sentenced to 18 months in prison.

Her Attempted Defense

Let me try to put into normal words what Defendant was trying to say in her defense.

Paraphrased, I think she was saying:

“Yes, I had cannabis in my system, and yes I was driving the car at the time of the accident. However, I was not under the influence at the time of the accident and the cause of my accident was not the cannabis in my system. Instead what caused the accident was a medical condition. I have low blood pressure and the loss of consciousness I sustained while driving that day was the sole cause of the accident.”

Beginning in January of 2016, significant Illinois DUI law reform takes place.

This has been described as the biggest change in DUI law in 10 years.

I invited one of Illinois’s Top DUI attorneys, Larry Davis, to come onto the podcast to help us understand exactly what these changes in DUI law are going to be.

Summary of the Legislation

SB 627

Larry Davis discusses some of the highlights from SB 627. They include:

* Elimination of RDP/MDDP Hard Times* Affects First Time DUI Offenders* Affects Those Revoked for DUI & Those on Second SSS* Expansion of BAIID Requirements * Anyone With 2 or More DUIs Must Have BAID* Required for Aggravated DUI Involving Death or Great Bodily Harm Convictions* Changes to the Warnings to Motorist Form* Arrestee Must Acknowledge The Warnings* Failure to Sign Cannot Be Used To Prove Warnings Not Given

Here is a direct link to the legislative history of SB 627.

The sections of the traffic code that will be changed are:

* 625 ILCS 5/6-205(c)(6)* 625 ILCS 5/6-206(E)* 625 ILCS 5/6-208.1(g)* 625 ILCS 5/6-206.1(a)* 625 ILCS 5/6-205(c)(3)(B), (B-5)* 625 ILCS 5/6-205(c)(3)(A)* 625 ILCS 5/6-206(3)(B)* 625 ILCS 5/6-106.1a* 625 ILCS 5/6-6-517(a)* 625 ILCS 5/11-501.1(c)* 625 ILCS 5/11-501.6(c)* 625 ILCS 5/11-501.8(c)

HB 1446

This is being described as the section granting RDPs for persons currently facing a lifetime revocation.

* These are individuals with 4 or more DUI convictions.* This bill provides that:* Lifetimers now eligible for RDP* Not before 5 years of hard time* Must demonstrate 3 years of abstinence from alcohol* BAIID requirements must be followed* Full reinstatement still prohibited 

Here is a direct link to the legislative history of HB 1446.

The sections of the traffic code subject to change will include:

* 625 ILCS 5/6-205(c)(1)* 625 ILCS 5/6-206(c)(3)* 625 ILCS 5/6-208(F)* 625 ILCS 5/6-303(c-4)

HB 3533

Larry also described some changes that he nor the ISBA supported. This bill created an extension of time persons with multiple convictions are required to drive with BAIID devices during their RDP before being eligible for full reinstatement.

The bill requires that:

* Anyone with 2 or more DUI convictions* Have BAIID installed for 5 years* While on a RDP before being considered for full reinstatement

Here is a direct link to the legislative history of HB 3533. The Alliance Against Intoxicated Motorists (‘AAIM’) was pushing this one.

Here are the sections in the traffic code that will be amended:

* 625 ILCS 5/6-205(h)* 625 ILCS 5/6-208(b)(1.3)* 625 ILCS 5/11-501.01(e)

See Also

* More...

See People v. Reedy, 2015 IL App (3d) 130955 (August). Episode 087 (Duration 5:03)

What happens when this drug dog makes it to the scene of a traffic stop in a flash? The case involves the discovery of 900 grams of heroin. 

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This is a very close case.

The trial judge granted the state’s motion to suppress evidence. The appellate court abruptly reversed.

Facts

The car is seen crossing the solid line, twice.

The line crossing happens while on the car is on the entrance ramp to the highway. For one of the crossings, the tire was over the line for 4 to 5 seconds.

Defendant only gets a warning but not before a drug dog responds to the scene and alerts.

Holding

The trial court granted the Defendant’s motion to quash and suppress. The case actually involves two defendant’s. With that much contraband involved, the passenger also gets charged.

Appellate court abruptly reverses.

Analysis

The reviewing court said that Defendant did not violate the improper lane usage statute, which is applicable only to roadways “divided into 2 or more clearly marked lanes for traffic.” 625 ILCS 5/11-709.

In any event, the appellate court was sure Defendant violated the statute prohibiting driving on the shoulder.  625 ILCS 5/11-709.1(a).

The reviewing court noted that the dog got there almost immediately after the stop. Further, the officer was in the process of writing a warning ticket when the dog alerted. No evidence exists that the drug questioning in any way extended the time of the stop. The entire traffic stop here lasted less than 10 minutes, and this was not a case where the officers stalled in order for a narcotics canine to arrive or to otherwise develop probable cause.

Conclusion

No doubt, in almost all future litigation involving a drug sniffing dog in an Illinois courtroom this case will be in the back pocket of the prosecution.

The defense will still harp and rely heavily on

See United States v. Bentley, No. 13-2995 (July). Episode 084 (Duration 20:00)

Challenging drug dog reliability is not impossible. But it’s going to take more than just showing the dog has a terrible track record in the field.

Why Do Unreliable Drug Dogs Win Their Cases?

Defendant challenged the reliability of the Lex, the police drug dog. This police dog sniffed Defendant’s car and alerted to the presence of 15 kilos of cocaine.

Defendant’s defense revolved around the idea that Lex had a propensity to alert. This just meant the defendant established that the dog alerted nearly every time he was called upon, regardless of whether or not drugs were ever present.

Facts

Defendant was driving from Chicago to St. Louis.

A Bloomington police officer observed a lane violation and stops Defendant. The officer notices that Defendant is inconsistent with information about ownership of the car.

Additionally, the officer notices that the spare tire is in the back seat.

Lex, the drug dog, is called out. Defendant consents to the sniff, and of course, the dog alerted. Fifteen kilos of cocaine are eventually removed from a hidden compartment. Defendant also had unexplained levels of cash on him.

Defendant was convicted and sentenced to 20 years in federal court.

The Dog’s Field Record

Defendant attempted to attack the drug dog’s reliability.

First, defendant discovered that Lex was prone to signal in the vast majority of his cases. In 93% of the times the dog was brought out to a job, the dog signaled for the presence of drugs.

His overall accuracy rate in the field was not much better than a coin flip (59.5%). This percentage measured the number of times Lex alerted and his human handler failed to discover any contraband.

The Dog’s Training

Defendant technically challenged the dog’s unreliable training.

We know that the United States Supreme Court has recently downgraded the significance of the sniff dog’s field performance records. See Florida v. Harris, 133 S. Ct. 1050, 1056 (2013).  Instead, “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” Harris, 133 S. Ct. at 1057.

However, this argument did not get off the ground.

Dog Wins Even With Bad Field Record

The reviewing court acknowledged that the Defendant made a strong showing against the drug dog’s reliability and that the defense “put on a good case.” pp 10. Defendant “presented a fair amount of evidence that Lex was at the back of the pack” of his graduation class. pp 10.

On cross examination, Defendant was able to establish that the president of the dog training company that trained Lex was embarrassed by this dog’s alert rate.

Additionally, the defense showed that:

* Lex failed two simulated vehicle search tests

* Lex was removed from the field for more training

* Lex has learned he gets rewarded for alerting regardless if drugs are found

In fact, the appellate court agreed with many of the defense attorney’s points. The court actually wrote:

This giftee policy seems like a terrible way to promote accurate detection on the part of a service animal, lending credence to Bentley’s argument that Lex’s alert is more of a pretext for a search than an objective basis for probable cause. pp 10.

Nonetheless, the reviewing court did not disturb the trial court’s finding that the dog was reliable.

Bad Dogs Still Win

The court noted that other courts have accepted rates less than 59.9%.

The court noted that:

We hope and trust that the criminal justice establishment will work to improve the quality of training a...

See People v. Ringland, 2015 IL App (3d) 130523 (June). Episode 081 (Duration 14:08).

Is State’s Attorney power so broad that they may create their own county police force? This prosecutor was using his investigator as a drug interdiction unit.

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Background

The gist of the case involves an elected state’s attorney who was using his investigator as a general police resource.

The prosecutor had hired a retired state trooper to be part of his investigative team.

But this special investigator had a very special job. His main responsibility was to look for narcotic traffickers traveling along the interstate running through the county that hired him. It was a drug interdiction unit!

It was prearranged that a canine unit would automatically be brought to any traffic stop called in by this investigator. Thus, this investigator’s main job was to perform pre-textual traffic stops looking for drugs.

This case does not involve the use of a drug dog. However, click below for podcasts that cover the use of police drug dogs:

* Rodriguez v. United States

* People v. Pulling

* Police Dog Case Law Summary

* Police Dog Sniff of Apartment Door

* Police Dog Discovery

* Update on Police Dog Discovery

* Drug Dog Sniff Set Up Procedure

* Illinois Search & Seizure Resource Page

Issue: State’s Attorney Power

See People v. Harris, 2015 IL App (1st) 132162 (June). Episode 078 (Duration 20:49)

What is an anticipatory search warrant? How did the cops mess this one up? Specifically, we ask whether the police had to wait for the package to be opened before arresting defendant.

What is an Anticipatory Search Warrant?

An anticipatory search warrant is based on probable cause that a crime will occur in the future. Specifically, it authorizes the police to search a person and place after a condition precedent takes place.

See United States v. Grubbs, 547 U.S. 90, 97 (2006); People v. Bui, 381 Ill. App. 3d 397, 406 (2008); and People v. Carlson, 185 Ill. 2d 546, 551 (1999).

The condition precedent is a triggering event that signals that evidence of a crime is located with an identified person in a specific place.

Example

The most common examples of anticipatory search warrant happened in mail interdictions.

Mail carriers identify drugs in a package. They notify authorities. They know once it is delivered that the receiver will be committing a crime.

The thing with drug packages is that not every handler of the package is guilty of a crime, and the package may be moved frequently before it makes it to its final resting place and to its true owner.

Facts In This Case?

A drug dog alerts to the presence of drugs in a package at UPS.

Sure enough, it is opened up and it has about 1,000 grams of cannabis inside of it. By the way, they needed a warrant for that, and Defendant would have had a right to the discovery on that drug dog.

Police then repackage the drugs along with an electronic device that signals officers describing when…

* The package is being moved

* The package is standing still

* The package has been opened

Police deliver this package to the home of an old lady who has been moved out for a while. The house was empty.

Sure enough, police see that Defendant drives up to the home, picks up the package and places it underneath the rears passenger’s seat.

Just as soon as Defendant drives away from the house, police stop him. They recover the package.

Defendant is interrogated and he confesses to knowing the cannabis was in the package, and said he was going to sell it. (Jury actually acquitted on possession with intent; Defendant received probation for the straight possession).

Prosecution was arguing that the triggering event occurred when Defendant took possession of the package, put it under the seat, and drove away with it.

Defendant argued that the the triggering event had to be when he opened the package.

The Case Law

Let’s discuss some of rules around anticipatory search warrants.

First of all, the general statutory requirements remain in full force and effect. These warrants also have to be careful to describe with particularity the items to be seized and the person and place to be searched. 725 ILCS 5/108-7.

Additionally, when we are talking about anticipatory search warrants they must be narrowly drawn to “avoid premature execution as a result of manipulation or misunderstanding by the police.” ¶ 29 quoting United States v. Brack, 188 F.3d 748, 757 (7th Cir. 1999).

The triggering event serves this limiting function. This ensures that officers serve an “almost ministerial” role in deciding when to execute the warrant. United States v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993). The idea is to remove any doubt or discretion from the police. See ¶  29 quoting People v. Curry, 100 Ill. App. 3d 405, 410 (1981).

See People v. Bozarth, 2015 IL App (5th) 130147 (January).

Illegal search and seizure results after a cop pulls a gun on a lady. If the officer had a reason to be so aggressive, he certainly did not articulate it for the record. In a hearing on a defense motion to suppress, failure of the officer to articulate his reasons usually means they are going to lose the motion.

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Issue

So The defendant was challenging the basis for her seizure by the police. At the trial level, she filed a motion to quash and suppress evidence that was denied.

She was charged and found guilty of DUI.

She was challenging the stop.

Facts

This is what we know from the hearing.

Trooper is on duty at 1:22 am in a rural and quiet area. There is only one car on the road. Yup, the Defendant.

Cop is in an unmarked squad car. He turns around and follows Defendant where he says he was “looking for violations.” ¶ 3.

Sees none.

Then the car appears to turn into a long private driveway but then disappears. The lights go off, and it is unclear where the car went.

So cop pulls into the driveway and notices that the car is parked alongside a barn way before the residence. Naturally, he pulls up behind the car about a car and half length away.

The officer then approaches the driver with his flashlight and gun drawn.

Then this is what happened:

* Driver rolls down window* Says Property Not Hers* Cop Smells Alcohol

At this point, the officer removes the driver from her car for field sobriety tests.

What Suspicions Did The Officer Have?

The trooper testified that when he first saw the car he “had no real suspic...