Police arrested several aspiring actors and filmmakers after an extremely questionable search and seizure in Harvey.
The video involved in the case includes footage of a 24-year-old man brandishing what appears to be a handgun while he is awaiting trial on another charge. During the 40-minute video, other footage shows various weapons, evidence of drug consumption, and evidence of a drug sale. Additionally, several people discuss dog fighting and one states that there is a dead animal in the garage. After reviewing the video, police and SWAT units obtained a search warrant for a residence on 158th Street. They confiscated weapons, ammunition, money, and a white powdery substance which they allege is cocaine. Officers also found the deceased animal and two other mistreated dogs.
Three men were arrested and more arrests may be forthcoming.
Drug Cases and Search Warrants
One disturbing aspect of this story involves the search. Under the Fourth Amendment, search warrants must be based on affidavits which demonstrate probable cause. Typically, that means Officer Smith must swear that s/he observed certain activities at a certain location or a confidential informant (CI) must swear to the same facts. Anything else falls short. So, how did officers have probable cause to connect the video with the location, since the footage was all taken inside?
Perhaps a person on the video disclosed the address of the house or described it in enough detail to enable officers to identify it, but that scenario is rather remote. It is more likely that someone at the police station recognized someone on the video and assumed that it must have been recorded at the house, but that analysis is only speculation. Or, one of the persons in the video could have come forward and the officers could have based the affidavit on that person’s story, but the resulting affidavit would probably be inadmissible hearsay.
The Fourth Amendment also requires specificity as to “the persons or things to be seized.” The video gives officers probable cause to look for illegal weapons, marijuana, and evidence of illegal gambling. There is nothing about cocaine in the video, so unless it was in plain view, this evidence probably should be excluded at trial because it is outside the scope of the warrant.
The warrant might also be defective. If the warrant gave officers permission to search for “drugs,” that portion is overly broad and unsupported by probable cause.
The second disturbing element is the subsequent arrests. In the United States, there is no such thing as “guilt by association,” so merely being present at a location where there may have been illegal activity is insufficient to warrant arrest. The drug conspiracy elements are clearly laid out in 720 ILCS 5/8 - 2:
- Criminal intent, and
- Overt act.
The overt act can even be something legal; for example, a bank robber conspirator might buy masks or put gas in the getaway car. The penalty for conspiracy in Illinois is usually one level lower than the underlying offense, so if a person conspires to commit a Class 2 felony, that person can be charged with a Class 3 felony.
As always, prosecutors must prove every element of conspiracy beyond a reasonable doubt, and if even one juror is unconvinced, the defendant cannot be found guilty as a matter of law.
Count on Experienced Attorneys
Drug arrests must adhere to strict procedural protocols. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Antonio Grosz)