When the officer asked our client why the car smelled like cannabis, our client told the officer that people had been smoking pot around him at the concert but that he had not smoked. And that was our client’s consistent answer to that question which was repeatedly put to him. The four passengers said the same exact thing: everyone denied smoking cannabis and advised the officer that the strong scent was due to other pot-loving Pantera fans. (The officer asked our client and his passengers 26 times whether they smoked pot that night, and each time everyone gave the same denial.)

The officer then ordered all of the occupants out of the car, placing our client in the back of his squad and the four friends sat against the median. The officer searched all five occupants but failed to unearth any contraband on them.

Increasingly frustrated that he didn’t catch our client red-handed with cannabis or drug paraphernalia, the officer then searched the vehicle with our client’s consent. The officer tore the car apart looking in every nook and cranny for the weed but found nothing. The officer was now pissed because he was certain he stumbled upon a career-enhancing drug bust. Hitting a dead end, the officer turned his attention to a potential DUI.

The officer administered Standardized Field Sobriety tests (and a couple non-standardized tests), and, surprise-suprise, the officer said our client failed those tests. Our client was then arrested for Driving Under the Influence (DUI) in violation of 625 ILCS 5/11-501(a)(6).

After being retained, we subpoenaed records and training materials from the Illinois State Police, filed a Petition to Rescind the Statutory Summary Suspension and filed a Motion to Suppress. We argued that the officer lacked probable cause to arrest our client for a DUI for six reasons:

1. The officer had no evidence that our client had ingested cannabis that evening;
2. The officer was repeatedly given consistent denials from our client and his four passengers. All of them advised that people were smoking pot around them. (We argued that this was no different that a designated driver getting a beer spilled on him at a rowdy Blackhawks game.)
3. The officer’s search failed to uncover any cannabis or drug paraphernalia;
4. The officer did not have adequate training to make a probable cause determination for a cannabis DUI;
5. The officer’s administration of the SFTs departed from the applicable standard protocols; and
6. The officer’s administration of non-Standardized Field Sobriety tests (finger-to-nose and “modified Romberg test”) cannot form the basis for the officer’s probable cause.

We ran the hearing on our Motion and the Petition to Rescind, and we won. The judge determined that the officer lacked probable cause for his arrest. Our Motion to Suppress was granted, as was our Petition to Rescind the Statutory Summary Suspension. And the State dismissed the DUI. But the judge’s rationale was not directly related to one of our 6 arguments.

Instead, the judge held that the officer unreasonably prolonged the stop and therefore violated our client’s Fourth Amendment’s right to be free from unreasonable searches and seizures. Most important to the judge was the fact that the questioning of all five occupants, the search of each, and the search of the vehicle took approximately 45 minutes. In other words, it took almost an hour for the police to turn its attention to a possible DUI, and, once the searches failed to turn up any contraband, the police lacked authority to continue its detention of our client.

Last year, the U.S. Supreme Court held:

[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure is justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing the ticket. (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)).

Rodriguez v. U.S., 135 S.Ct. 1609, 1612 (decided April 21, 2015). Further, “[a]uthority for the seizure ends when the tasks tied to the traffic infraction are–or reasonably should have been–completed.” Id. at 1614 (emphasis added). Despite not raising that exact issue in our briefing, that was the issue that convinced the judge to side with our client.

To our client, the judge’s reasoning is almost irrelevant–we beat the DUI! To the criminal defense practitioner the takeaway is more nuanced. This case reinforced the following lessons: (1) “You miss 100% of the shots you don’t take.” ~Wayne Gretzky. If we didn’t run the Motion to begin with, our odds of success were nil. (2) Throw lots of different theories in your Motions to Suppress because you never know what will compel your particular judge. (3) Even Pantera fans like to smoke up.

Dreifuss, P.C. is a full-service criminal defense law firm available to handle all of your defense needs from Chicago to Waukegan and Nationwide. We are available to represent you or a loved one charged with the most serious crimes in state and federal courts. Please contact us at 847-893-9399 to schedule a free, initial in-office consultation.

This post does not create an attorney-client relationship and is not intended to provide legal advice. This post is for informational purposes only. We welcome your calls, e-mails, or letters, but please do not send any confidential or time-sensitive information until an attorney-client relationship is established. Each case is unique, and past performance does not guarantee future results.

That would seem to conclusively resolve any uncertainty. But a recent case this firm handled proves otherwise. We beat a resisting arrest case because the police violated our client’s Fourth Amendment rights.

The police were dispatched to our client’s home in response to an alleged domestic violence incident. When the police arrived, our client’s nephew (the alleged victim) was outside of the home, separated from our client. The police approached our client’s home and asked him to come outside so that they could arrest him for Domestic Battery (720 ILCS 5/12-3.2).

Our client is savvy and advised the police that he would not submit to arrest without an arrest warrant. He remained inside his home and repeatedly told the police that he did not consent to their entry in to his home and that he did not consent to a warrantless arrest. With no consent and no exigent circumstances justifying a warrantless arrest, the police were stuck. And every time our client reminded them of this, the police became increasingly frustrated.

That is when the police, reliving the Wild West days, reached in to our client’s house, tried to pull him out of his home, and then barged in, tackling him to the ground. As the police were effectuating their illegal arrest, they alleged that our client pulled his arms away as they cuffed him. That (pulling his arms away) was the basis for the resisting arrest charge.

In Illinois, 720 ILCS 5/31-1 (Resisting or obstructing a peace officer, firefighter, or correctional institution employee) provides:

(a) A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his or her official capacity commits a Class A misdemeanor.

The key phrase here is that the resisting or obstruction must relate to an “authorized act.” And a recent Illinois Appellate Court examined this issue. People v. Jones, 35 N.E.3d 970 (2d Dist. 2015).

The facts of the Jones case are strikingly similar to the facts of our client’s case. There, the police violated Mr. Jones’s Fourth Amendment rights when they made a warrantless entry into Mr. Jones’s home in response to an alleged domestic battery case. During the course of his arrest, Jones also pulled away from the police and was charged with resisting.

The Appellate Court determined that the police’s warrantless entry in to Mr. Jones home was an “unauthorized act that defendant could obstruct.” Relying on Jones, we filed a Motion to Quash Arrest and Suppress Evidence Illegally seized arguing that because the arrest of our client was illegal and that could not be a basis for a resisting arrest charge.

Upon reviewing our motion, the prosecutor decided to drop all charges against our client instead of moving forward with an uncomfortable and embarrassing hearing for the State’s police officer.

A final and important note. Dreifuss, P.C. does not encourage anyone to resist arrest. We strongly recommend that you deal with police in a calm, respectful manner. Keep your mouth shut. Don’t consent to searches. Don’t provide a statement and call us ASAP. Depending on the specifics of each case, it is likely that a prosecutor could charge Aggravated Battery of a Peace Officer (720 ILCS 5/12-3.05(a)(3)). (The Jones case involved that charge, and the Appellate Court sustained Mr. Jones’s conviction on that charge because he repeatedly kicked the arresting officer.) It is a best practice not to tussle with the police, but, if you are so charged, call us because we have the experience and skill to provide the strongest defense.

Dreifuss, P.C. is a full-service criminal defense law firm available to handle all of your defense needs from Chicago to Waukegan and Nationwide. We are available to represent you or a loved one charged with the most serious crimes in state and federal courts. Please contact us at 847-893-9399 to schedule a free, initial in-office consultation.

This post does not create an attorney-client relationship and is not intended to provide legal advice. This post is for informational purposes only. We welcome your calls, e-mails, or letters, but please do not send any confidential or time-sensitive information until an attorney-client relationship is established.