Throughout my career practicing law, I've noticed clients' preparation in planning a family. You learn you are going to have a child and you are overcome by emotion. The planning starts and you try to think of everything to ensure the protection of the new life you are bringing into the world. You buy a crib, baby clothes, pampers, and anything you can think of that your baby will need. However, one important oversight is the preparation to protect your child if you die or become incapacitated. This article should serve as a brief introduction to some easy steps you can take to prevent a legal catastrophe from occurring should something tragic occur to one or both parents.
We’ve all heard the expression that “you can’t take it with you when you die”; but at least the Illinois Probate Act sets out a “default” guideline as to who inherits your personal property from your estate if you die without a will. Unfortunately no such rule exists governing your most prized possessions – guardianship of your children.
Guardianship estate planning is critical for any parents, regardless of your personal worth. The guardian is the person appointed to care for the well-being of your children, essentially stepping into the roles of Mom and Dad. There are two types of guardianships – guardianship of the estate and guardianship of the person. The guardian of the estate is the person/entity responsible for your child’s financial affairs and management; the guardian of the person is responsible for the child’s care and well being. You can elect to have the same person act as both the guardian of the estate and person; or can choose different guardians for each role. Perhaps you want your brother appointed guardian of the estate, while your sister acts as guardian of the person. Another option is allowing two people to act as joint guardians if the situation is warranted – meaning each will have equal say in the up-bringing of your kids. The various possibilities and reasons are too vast to cover in this article.
Although Courts give considerable deference to who you nominate as guardian(s) of your children in your estate planning documents, a petition and court order is still required to deem them a legal, permanent guardian. Safeguards are in place to ensure that your children have a guardian while the court proceedings are pending. There are essentially four forms of guardianship that you should be aware of:
Short Term Guardian - A short term guardianship is effective upon the date stated in the written document but is only effective, at most, for 60 days. For example, “I appoint John Smith as guardian upon my death…” John Smith could then use this document as legal proof of guardianship of the child(ren) for up to 60 days.
Standby Guardian– The standby guardianship is nominated in the estate documents but unlike the short term guardian, he/she must first be appointed by the court for a temporary period until the permanent guardianship is determined. A standby guardian is not limited to 60 days.
Temporary Guardian – is the temporary guardian of the children. The difference between the temporary and standby guardianship is the fact that the standby was previously nominated by the parents during the estate planning process during their lifetime. That person is merely “standing by” to be either the Temporary and/or Permanent Guardian.
Permanent “Plenary” Guardian – this is the person or persons who will have guardianship over the children until such time that the children turn 18.
As a parent of two young children, I know first-hand the concerns and fears parents have about leaving your children behind. Guardianship provisions in your estate planning documents can help alleviate these concerns by giving you a voice in choosing who will care for your children in the event of your untimely passing.
If you do not have these safeguards already drafted and executed, it could lead to many subsequent problems, such as infighting amongst family members or going so far as the court deciding guardianship, an uncertain outcome. If you are going to drive a car, you will need to have car insurance. The same can be said if you are going to have children, you should have a plan in place to ensure their protection if some tragedy occurs.
Call you attorney to inquire as to the process for adding these clauses to your estate plan. At Hall & Rustom, LLC, our rates are reasonable and the cost of the legal work pales in comparison to the problems that could arise if no plan is in place for your children.
To schedule a consultation regarding your case please call the attorneys at Hall & Rustom LLC (309) 699-4691, our office is located on the 3rd floor of the GEM Terrace Building in East Peoria, IL.
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.
Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses. He also concentrates in Estate Planning & Administration, and School Law.
The
use of the Internet or this form for communication with the firm or
individual member of the firm does not establish an attorney-client
relationship. Confidential or time-sensitive information should not be
sent through this form nor should the reader rely on the information
listed above as true in all circumstances. This information is provided
generally and any similarity between the information listed above and
an individual reader's case is purely coincidental.
The attorneys at Hall & Rustom LLC represent clients throughout the
entire state of Illinois, including, but not limited to, the cities of
Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap,
Metamora, Bartonville, Bloomington, Normal and any legal matter located
in Peoria County, Tazewell County, Woodford County, Marshall County,
Stark County, Henry County, Knox County and McLean County.
The papers were served, the divorce is underway but one question you may be asking is, “Who gets the house during the divorce proceedings?”
Clients often ask me this question during their initial consultation and the answer is not as easy or as predictable as most would think or hope for.
The issue to determine who gets the home (or “the marital residence”) during the divorce proceedings is otherwise known as temporary exclusive possession of the marital residence. Section 701 of the Illinois Marriage and Dissolution of Marriage Act provides that the court may temporarily “evict” one spouse from the marital residence during the pendency of the divorce case “only in cases where the physical or mental well being of either spouse or their children is jeopardized” by the other spouse.
Generally speaking, each spouse has equal rights to the marital residence – the fact that they are getting a divorce does not change that. Therefore, one spouse cannot force the other from the residence unless it can be shown that occupancy by one spouse would jeopardize the physical or mental well being of the other spouse or their children. This means that the spouse who wants the other ousted from the home must petition the court and meet his/her burden of proof to convince the Judge that actions of the other spouse make cohabitation a threat to his/her or the children’s wellbeing.
You may be asking yourself, “What kind of acts or facts are enough to prove that our wellbeing is jeopardized?” Although there is no bright line test for such standard, simple bickering or unhappiness would unlikely be sufficient to meet one’s burden. The Judge has the discretion to determine if a particular set of facts are sufficient to prove the need to have exclusive possession of the marital residence but often these cases hinge on acts of abuse (physical and mental), substance abuse, mental stability, gross and repeated negligence which may endanger the safety of young children, etc.
Most divorce cases do not give rise to the level of hostility to warrant an award for exclusive possession of the marital residence; which is why it is not uncommon for spouses share the marital residence during the divorce case. Although cohabitation may be uncomfortable and awkward, the ability to stomach your soon-to-be ex-spouse can end up saving you thousands of dollars. Imagine taking your family budget and adding to that, additional payments of rent/mortgage, utilities, groceries and day care, in addition to the legal fees each spouse his paying to their respective attorney. Many couples simply cannot bear these additional costs, leaving cohabitation as the only realistic option.
A divorce is a stressful situation for all involved and experienced legal advice in the field of divorce and other family related matters can help alleviate that stress. The attorneys at Hall & Rustom LLC have tried many cases involving the issue of exclusive possession of the marital residence as well as other divorce related subjects. To schedule a consultation regarding your case please call the attorneys at Hall & Rustom LLC (309) 699-4691, our office is located on the 3rd floor of the GEM Terrace Building in East Peoria, IL.
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.
Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses. He also concentrates in Estate Planning & Administration, and School Law.
The
use of the Internet or this form for communication with the firm or
individual member of the firm does not establish an attorney-client
relationship. Confidential or time-sensitive information should not be
sent through this form nor should the reader rely on the information
listed above as true in all circumstances. This information is provided
generally and any similarity between the information listed above and
an individual reader's case is purely coincidental.
The attorneys at Hall & Rustom LLC represent clients throughout the
entire state of Illinois, including, but not limited to, the cities of
Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap,
Metamora, Bartonville, Bloomington, Normal and any legal matter located
in Peoria County, Tazewell County, Woodford County, Marshall County,
Stark County, Henry County, Knox County and McLean County.
Before I start, most police officers are honorable civil servants that provide a valuable service to us. Most officers do not deliberately lie or misrepresent facts in their police reports or when they testify. So I don't want you thinking a few bad eggs should spoil the bunch.
With that being said, I felt it necessary to write an article on something I feel has gotten out of hand. With Summer Camp Music Festival being a popular destination for in-state and out-of-state travelers, people should know certain tactics used by law enforcement officers to avoid the warrant requirement in searching your vehicle.
Tricking you into consenting to search:
When you are pulled over and the officer has a hunch you are doing something illegally, they will try to feed that hunch by asking you to consent to a search of your vehicle. In Illinois, an officer cannot search your vehicle or home without a search warrant unless there is a legal exception. These legal exceptions are:
Whether or not he sees something illegal in plain view
Whether he is in hot pursuit
Whether he is searching incident to your arrest (if he's detained you and is taking you to jail he can search your vehicle incident to that arrest)
Whether you give consent for him/her to search
Many times, officers will give you a warning and it appears you can leave. But, instead of letting you walk away and leave, then they start to engage in conversation with you. Then they ask to search your vehicle. DO NOT FALL INTO THIS TRAP. DO NOT GIVE THEM CONSENT TO SEARCH. Say politely, "Thanks officer, but no thanks. I am going to leave. Have a nice day." They do it this way because courts have ruled that after he gives you the warning, you are free to leave, and the encounter from that point forward is CONSENSUAL. If you allow him to search after that, then it would be difficult to challenge the search later on.
Forfeiting your vehicle and making money from it:
Along with the crime prevention incentive, these officers have a financial incentive to finding drugs. Not only do they get the drugs off the street, they can seize your vehicle and in Illinois, they can forfeit your rights to the vehicle through the Drug Asset Forfeiture Proceedings under 725 ILCS 150. Then, your county State's Attorney receives 10-12% of the money brought in from the sale of the vehicle. As the article lists below, in Madison County, IL, the State's Attorney's Office there receives upwards of $4 million dollars per year from these proceedings.
For example, as of 2012, the Peoria County State's Attorney's Office has a policy of forfeiting all vehicles seized if in violation of the Drug Asset Forfeiture Act. I've been told they take this position because if they allow one vehicle to go and that vehicle is subsequently involved in some sort of accident or crime, they would be subjected to much scrutiny if they allowed the vehicle to go. This is a win/win for their office. Not only do they seize ALL these vehicles, they get a substantial amount of money from the policy under the Illinois statute.
There are many instances in Illinois where suspected police officer abuses have come up. For purposes of this article, I want to focus on a video that I watched recently that perfectly illustrates behavior we have to be aware of and prevent.
Example:
Hypothetically, let's say that you are driving your car out of St. Louis after attending a convention. You are driving the speed limit on I-70, cruise control set, and you're obeying traffic laws. Then suddenly you are pulled over and the officer tells you that he noticed you crossed over the center dividing line and he was pulling you over to investigate a violation of Improper Lane Usage. He asks you to get out of the car and discusses it with you. Ultimately, he gives you a warning and shakes your hand as if you can leave. You turn and walk away.
In the same breath as the officer is about to say goodbye, he says, "Hey, can I ask you a question?" Surprised, you say, "ummmm, yes." The officer then says, "I noticed that your passenger was kinda nervous. Are you guys hiding anything illegal in the car? You say, "No. We are just leaving St. Louis coming from a convention." The officer then starts asking you, "Do you have any cocaine? Marijuana? Heroine?" You answer no to all the questions. Then he asks, "do you have any large quantities of money you're transporting? See, this roadway has a lot of drug traffickers and we are just trying to make sure that isn't going on here. So do you have a large amount of money you're traveling with?" You say, "no, I'm poor."
By this point, you are probably wondering what the hell is going on. That's when you ask the most important question: "Officer, am I free to leave?" The officer then says, "Well, you are free to leave, but your vehicle isn't. Will you allow me to search your vehicle? If you refuse, I'm going to have my canine smell around your car and if he alerts, I'm going to search the inside." Then he gets the canine and that's where it starts to get out of hand.
Watch this video and you'll see what I mean. (Video is 18 minutes but worth watching)
As you can see, there are many problems here. First, the questionable stop. Then, the questionable warning. Next, the rolling "no" questions designed to get a consent to search. Then the highly questionable "alert" by the drug dog where it appears that the officer alerted the dog and encouraged the dog to "alert." All these questionable things about this stop happen quite frequently.
If put in this situation where you are given a warning, politely leave and simply do NOT engage the police officer in any more discussion. If the police officer does not allow you to leave, ask if you are under arrest. If he says you are not under arrest, ask again if you are free to leave. If he still says no, then you're technically considered under arrest and you should remain silent from that point forward because not much you can say or do at that moment will help you.
To better illustrate my point, I'm including an article from Huffington Post contributor Radley Balko. The article discusses the video and includes a great discussion on drug searches, police dogs, and bad cops, as the title articulates. It's a very interesting read.
Just to reiterate, I'm not saying that all police officers use these tactics. For those that do, you run the risk of tarnishing your reputation, credibility, and job status.
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Illinois Traffic Stop of Star Trek Fans Raises Concerns About Drug Searches, Police Dogs & Bad Cops
Last December, filmmaker Terrance Huff and
his friend Jon Seaton were returning to Ohio after attending a "Star
Trek" convention in St. Louis. As they passed through a small town in
Illinois, a police officer, Michael Reichert, pulled Huff's red PT
Cruiser over to the side of the road, allegedly for an unsafe lane
change. Over the next hour, Reichert interrogated the two men, employing
a variety of police tactics civil rights attorneys say were aimed at
tricking them into giving up their Fourth Amendment rights. Reichert
conducted a sweep of Huff's car with a K-9 dog, then searched Huff's car
by hand. Ultimately, he sent Huff and Seaton on their way with a
warning.
Earlier this month, Huff posted to YouTube audio and video footage of
the stop taken from Reichert's dashboard camera. No shots were fired in
the incident. No one was beaten, arrested or even handcuffed. Reichert
found no measurable amount of contraband in Huff's car. But Huff's
17-and-a-half minute video raises important questions about law
enforcement and the criminal justice system, including the Fourth and
Fifth Amendments, the drug war, profiling and why it's so difficult to
take problematic cops out of the police force.
THE STOP
The stop itself happened Dec. 4 on Interstate 70 in Collinsville, a
town of 26,000 people just outside of St. Louis. Law enforcement
officials say this stretch of highway is a drug-trafficking corridor.
The account that follows is based on Huff’s video, the unedited
dashboard footage from Reichert's vehicle and a Huffington Post
interview with Huff.
After pulling Huff over, Reichert approaches Huff's car and asks him
for his license, registration and proof of insurance. Huff complies.
Reichert then asks Huff to step out of the car, because he says he can't
hear him over the noise from the highway. Huff complies. Before talking
to Huff, Reichert asks Seaton for ID as well, which Seaton isn't
obligated to produce, but does.
Reichert then tells Huff he pulled him over for weaving across lanes.
Huff says in his video that this is a fabrication. But he didn't
challenge Reichert's claim at the time because, "I was from out of
state, and I didn't want any trouble."
After running a check on Huff's license, Reichert tells Huff he'll
let him off with a warning, and the two men shake hands. Legally, Huff
is now free to go. But just as Huff is set to get back into his car,
Reichert says, "Let me ask you a question real quick." Huff agrees.
It's
here that Reichert adds, seemingly as an afterthought, that Seaton
appeared nervous and apprehensive. He then asks Huff a series of what
law enforcement officers call "rolling no" questions about whether Huff
is transporting any drugs, weapons or cash. Huff says "no" to each.
In his interview with HuffPost, Huff asks, "If he thought Jon was
nervous, and that might indicate drug activity, why did he wait so long
to bring it up? And why did he wait until he had basically told me I
could go?"
"It's a common tactic," says John Rekowski, the public defender for
Madison County, where the stop took place. "[Officer Reichert] thinks
he's doing something legally significant there. He thinks he's
establishing that everything that happens after the handshake is
consensual, because after that, Huff was technically free to go. But of
course he isn't free to go."
If Huff had ignored Reichert's "Let me ask you a question real
quick," gotten into his car and driven off, Rekowski says, there's no
way Reichert would have let him leave. "And in Illinois, the definition
of a detainment is that you aren't free to leave."
Collinsville Police Chief Scott Williams, who has seen the dash cam
video, tells HuffPost "I don't have any reason to doubt the integrity of
any of our officers. But we'll do our due diligence and look into that.
If we find that any of our officers is taking shortcuts or violating
someone's civil rights, that officer will be fired."
HuffPost was unable to reach Reichert for comment.
During the questioning, Reichert tries several times to get Huff to
admit to having marijuana in his car, even if only a small amount for
personal use. Huff says he has none. "I would just like to go on my way
if I could," he tells Reichert. Reichert says that he's going to bring
his K-9 out of the car to do an outside sweep.
Reichert pats down both Huff and Seaton and takes the dog around the
car twice. He tells Huff that on the second trip, the dog has "alerted"
to the presence of drugs, but did so at the front of the car, out of the
view of Reichert's dashboard camera. He explains that because the front
of the car is downwind, the drug scent would most likely register with
the dog at the front of the car.
The dog's alert gives Reichert probable cause for a thorough hand
search of Huff's car, as well as Huff and Seaton's luggage and personal
belongings.
Reichert finds no drugs. He does claim to find "shake" -- marijuana
residue -- beneath the seats of Huff's car. That, Reichert says, must
have been why the dog alerted. Reichert never collected any of the
alleged shake for testing, however, and Huff says now it's nonsense.
After an hour of questioning and searching by Reichert, Huff and Seaton
leave Collinsville with only a warning for an unsafe lane change.
THE FORFEITURE CORRIDOR
Asset forfeiture is the process by which law enforcement agencies can
take possession of property suspected of being tied to illegal
activity. Under these laws, the property itself is presumed to be guilty
of criminal activity. Once the property has been seized, it's up to the
owner to prove he obtained the property legitimately.
In about 80 percent of civil asset forfeiture cases, the property
owner is never charged with a crime. And in Illinois -- like many states
-- the law enforcement agency that makes the seizure gets to keep the
cash or the proceeds of the forfeiture auction (in Illinois, the
prosecutor's office gets 10-12 percent).
Critics say civil asset forfeiture is rife with poor incentives,
and violates the Fifth Amendment’s protection against seizure of
property without due process of law. Police can seize a car, cash, even a
home on the flimsiest of evidence.
Madison County, Ill., where Huff was pulled over, is bisected by I-70
just outside of St. Louis. Interstates are a particularly rich ground
for forfeiture. Law enforcement officials say that's because interstates
are ideal for drug running.
Critics say it's because police can target out-of-state drivers, who
are more likely than local residents to accept a police officer's
baseless accusations and turn over their property, rather than refuse
and face arrest, multiple returns to the state for court dates and
thousands of dollars in legal expenses. Sometimes winning the property
back can exceed the actual value of the property.
Faced with that choice, it isn't difficult to see why innocent people would opt to hand over their cash and head home.
"The joke around our office is that all you need for probable cause
in Madison County is an Arizona, New Mexico, Texas, or Florida license
plate," says Rekowski, the public defender. Collinsville defense
attorney Jessica Koester says she's seen the same thing. "If you're from
out of state, they're simply going to find a reason to pull you over."
Local news reports indicate that Illinois law enforcement agencies
along the I-70 corridor have ramped up their forfeiture efforts in
recent years. Rekowski said one tactic police use is to put up a sign
for a "drug checkpoint" roadblock ahead. In 2000, the U.S. Supreme Court
said such checkpoints are illegal; roadblocks are legal for DWI checks, but not for narcotics checks. But Rekowski says that isn't the point.
"They put the sign up so there's only one exit you can take to avoid
it. Then they pull over and search anyone who tries to exit before the
roadblock."
That tactic too is constitutionally suspect. Police can't pull a
driver over merely for exiting before an announced (and illegal) drug
checkpoint. "But, of course, that isn't why they'll say they've pulled
you over," Rekowski says. "They'll say you crossed two lanes to get to
the exit, or switched lanes without signaling, or that you cut someone
off."
The Edwardsville Intelligencer reported in 2010
that the Madison County State's Attorney's Office has reaped a
half-million dollars from the policy over eight years, which at the
prosecutor's take of 10-12 percent suggests a total bounty of $4.5
million to $5 million. Madison County Assistant State's Attorney
Stephanie Robbins, who handles forfeiture cases for the office, told local paper the Telegraph in 2010, "Law-abiding citizens have nothing to worry about."
But maybe they do. Jerome Chennault, a Nevada resident had the misfortune of driving through Madison County on his way home after visiting his son in Philadelphia.
Chennault said he had withdrawn $22,870 in cash to take with him
before leaving Nevada, which he had intended to use for a downpayment on
a home. After he was pulled over for following another car too closely,
Chennault gave police permission to use a drug dog to sweep his car.
The dog then "alerted" to the bag containing Chennault's cash.
Police found no actual drugs on Chennault or in his car. He was never
charged with a crime. But the dog alert itself was enough to allow
police to seize Chennault's cash. Over the next several months,
Chennault had to travel to Edwardsville, Ill., at his own expense to
fight in court for the return of his property. He had to put up a bond
equal to 10 percent of the value of the property taken from him in order
to secure it.
Cheannault won in court. His money was returned. But he won't be reimbursed for his travel or his legal expenses.
Similar stories have been reported along other forfeiture corridors across the country. In Teneha, Texas,
police reportedly routinely pull over cars from out of state (the
highway is popular for drivers, flush with cash and jewelry, going to
and from casinos). A Nashville TV station recently reported on a stretch in Tennessee where the vast majority of police stops were of suspected drug runners leaving
the city, meaning the police apparently preferred to let the drugs come
into the city so they could seize the cash on the way out.
"When we saw the Huff video in our office, we just laughed," Rekowski
says. "Not because it wasn't outrageous. But because it's the kind of
thing we see all the time. The stop for a so-called 'inappropriate lane
change,' the games they play in the questioning, the claims about
nervousness or inappropriate behavior that can't really be contradicted.
It's all routine."
According to Koester, the defense attorney in private practice, "The
dog alert that happens off-camera isn't unusual either. You see that all
the time."
Koester and Rekowski say the Huff stop has all the markings of a
forfeiture fishing expedition. "You see where he asks if [Huff] is
carrying large amounts of U.S. currency," Rekowski says. "It's pretty
clear what they're after. These kinds of cases put my kids through
college." He laughs, then adds, "I'm only half joking."
THE DRUG DOG
HuffPost showed the video of Huff's stop to two K-9 experts. Gene
Papet is executive director of K9 Resources, a company that trains
detection dogs, including police dogs. Papet found a number of problems
with the way Reichert handled his dog.
"Just before the dog alerts, you can hear a change in the tone of the
handler's voice. That's troubling. I don't know anything about this
particular handler, but that's often an indication of a handler that's
cuing a response." In other words, it's indicative of a handler
instructing the dog to alert, not waiting to see whether the dog will
alert.
"You also hear the handler say at one point that the dog alerted from
the front of the car because the wind is blowing from the back of the
car to the front, so the scent would have carried with the wind," Papet
says. "But the dog was brought around the car twice. If that's the case,
the dog should have alerted the first time he was brought to the front
of the car. The dog only alerted the second time, which corresponded to
what would be consistent with a vocal cue from the handler."
Russ Jones is a former police officer with 10 years in drug
enforcement, including as a K-9 officer. He's now a member of Law
Enforcement Against Prohibition, a group of current and former cops and
prosecutors who favor ending the war on drugs. "That dog was going to do
what ever (Officer Reichert) needed it to do," Jones says. "Throughout
the video, the dog is looking for handler feedback, which isn't how it's
supposed to work."
In the 2005 case Illinois v. Caballes,
the U.S. Supreme Court ruled that having a drug dog sniff the exterior
of a vehicle during a routine traffic stop does not violate the Fourth
Amendment. But in a dissent to that opinion, Justice David Souter
pointed to mounting evidence that drug dogs aren't as infallible as
police departments often claim. Souter noted a study that the state of
Illinois itself used in its briefs showing that in lab tests, drug dogs
fail 12.5 to 60 percent of the time.
Since then, more evidence has emerged to support Souter's concerns.
The problem isn't that the dogs aren't capable of picking up the
scent, it's that dogs have been bred to please and interact with humans.
A dog can easily be manipulated to alert whenever needed. But even with
conscientious cops, a dog without the proper training may pick up on
its handler's body language and alert whenever it detects its handler is
suspicious.
In one study published last year in the journal Animal Cognition,
researchers rigged some tests designed to fool dogs into falsely
alerting and others designed to trick handlers into thinking a package
contained narcotics (it didn't). Of the 144 total searches performed,
the dogs falsely alerted 123 times. More interesting, the dogs were
twice as likely to falsely alert to packages designed to trick their
handlers than those designed to trick the dogs.
In 2011, the Chicago Tribunepublished a review
of drug dog searches conducted over three years by police departments
in the Chicago suburbs. The paper found that just 44 percent of dog
"alerts" led to the discovery of actual contraband. Interestingly, for
Hispanic drivers the success rate dipped to 27 percent, again supporting
the theory that drug dogs tend to confirm the suspicions (and,
consequently, the biases) of their handlers.
A 2006 statistical analysis
(PDF) of police dog tests by University of North Carolina law professor
Richard Myers concluded that the dogs aren't reliable enough to provide
probable cause for a search.
HuffPost obtained the records for one Illinois state police K-9 unit
for an 11-month period in 2007 and 2008. Of the 136 times this
particular dog alerted to the presence of drugs during a traffic stop
over that period, 35 of the subsequent hand searches found measurable
quantities of illegal drugs.
See accompanying article for a more thorough analysis of the K-9 records:
An analysis of the K9 records shows that only 25.7 percent of
the drug dog's "alerts" resulted in police finding a measurable quantity
of illicit drugs. Just 13 percent resulted in the recovery of more than
10 grams of marijuana, generally considered an amount for personal use,
and 10.4 percent turned up enough drugs to charge the motorists or
their passengers with at least one felony. Read more here.
Jones, the former narcotics and K-9 officer, said those sorts of numbers
are why he now opposes the drug war. "Ninety percent of these
dog-handler teams are utter failures. They're just ways to get around
the Fourth Amendment," he says. "When I debate these people around the
country, I always challenge the K-9 officers to a double-blind test to
see how accurate they and their dogs really are.
They always refuse."
These figures strongly suggest that while the Supreme Court has ruled
that there's nothing invasive about an exterior drug dog sniff of a
car, in truth, the dog’s alert may be nothing more than the dog
confirming its handler's hunches -- which is exactly what the Fourth
Amendment is supposed to protect against.
THE BAD COP
If drug dog searches and poorly incentivized forfeiture policies are
bad ideas in general, both can be particularly damaging when utilized by
an unscrupulous police officer. And Michael Reichert has both a
reputation and a documented history of questionable scruples.
"All the departments around here are bad when it comes to these
searches, but he's really the poster boy," says Rekowski, the public
defender. Another defense attorney, who didn't wish to be quoted by
name, went further: "The guy is a menace to society."
In a 2005 case, U.S. v. Zambrana,
U.S. District Judge Michael J. Reagan overturned a federal drug
conviction because he didn't find Reichert's testimony credible.
Reagan's assessment of Reichert's methods and credibility is blunt.
He calls Reichert "polished" and his testimony "rehearsed, coached and
robotic as to be rote." He continues, “It was a generic, almost default
performance not dependent upon the facts of this case, but suitable for
any case in which Reichert might testify to having found reasonable
suspicion."
In that case too, Reichert's stated reason for pulling Zambrana over
was that Zambrana crossed over a lane divider. According to Reagan's
opinion, Reichert also stated that the motorist appeared "nervous," like
Huff, and again nearly let the driver go (he told Zambrano he was "free
to leave.") Then, again nearly as an afterthought, Reichert started in
with the "rolling no" questions. Reichert described Zambrano's refusal
to consent to a search as "suspicious."
Reagan writes that Reichert is so confident in his ability to observe
body language to detect deceit, he appears to be a "human polygraph."
Reichert taught a class on how to conduct roadside searches, which
Reagan wrote could easily have been titled, "How to avoid the warrant
requirement in searching a vehicle."
Reagan's opinion, along with the fact that Reichert was also
convicted on federal charges of selling knockoff designer sunglasses,
led to Reichert's dismissal from the Collinsville Police Department in
2006. But with the help of the police union, Reichert sued to get his
job back.
In subsequent hearings, the local state's attorney's office said it
didn't trust Reichert, as did the U.S. Attorney's Office for the
Southern District of Illinois. Reagan and the state circuit court judge
also made clear that they felt Reichert was untrustworthy.
Despite these concerns, in March 2009, an Illinois appellate court ordered Reichert rehired.
In much of the country, discipline and dismissal of police officers
is governed by union-negotiated contracts. Some states have a “police
officer bill of rights,” which affords police accused of misconduct and
criminal acts more rights than are afforded other citizens. Others send
officer misconduct cases to union-negotiated arbitrators.
Federal law also protects police from being fired for refusing to
answer questions in a misconduct investigation, even if their answers
can’t be used against them in any ensuing criminal case.
In January 2011, Williams gave Reichert the Chief's Award of Merit (PDF), and in April 2011, he was named Officer of the Month.
For the latter, Reichert was cited for making six arrests and seven
citations out of 166 total incidents. According to Williams, "incidents
are dispatched calls for service. They range from traffic crashes to
domestic disputes and everything in between."
Despite Reichert's past, Williams said he sees no reason to question the officer's integrity.
As for Huff, he said he just wants to raise awareness, so fewer
people are subjected to the same sorts of searches he and Seaton were.
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Remember: If you are pulled over, be polite, have your Driver's License and proof of insurance ready for the officer to see, and make sure your hands are visible. Don't forget you have rights though. Do not consent to any search under any circumstance, no matter what the officer promises you.
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.
LEGAL DISCLAIMER:
The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.
The attorneys at Hall & Rustom LLC represent clients throughout the
entire state of Illinois, including, but not limited to, the cities of
Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap,
Metamora, Bartonville, Bloomington, Normal and any legal matter located
in Peoria County, Tazewell County, Woodford County, Marshall County,
Stark County, Henry County, Knox County and McLean County.
Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements. If you have a legal question, email Jeff Hall.
A popular question we are commonly asked involves child support payments: "If I can't afford the monthly child support payments, what are my options?"
This article's purpose is to address changes in the support amount and how important it is for you to consult an attorney to assist you in the support modification process. Now you may wonder how much this process costs, especially if you hire an attorney.
While hiring an attorney could be expensive, it is important to consider the amount of money an attorney could save you by convincing a court to modify your monthly support payments. The fear of paying for an attorney is usually always outweighed by the amount an attorney can save you over the course of many years of lowered child support payments.
Some basic rules in changing child support payment amounts are covered in Section 510 of the Illinois Marriage and Dissolution of Marriage Act, in that:
"Support may be modified as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification." 750 ILCS 5/510
So what does this mean? It simply means that one's child support obligation can be changed after a petition to change child support, called "A Petition to Modify Support," is filed AND proper notice is given to the ex-spouse or recipient of support.
Failure to follow the requirements of this law can have devastating effects on those obligated to pay child support but who are no longer able to pay their original court ordered amount due to a decrease in pay or change in their employment. Those who are making less money, or no money at all, are still obligated to pay the original amount of court ordered support if they fail to correctly file a request for modification in child support.
Example:
John is ordered to pay Susan $100 per week in child support beginning January 1, 2012. John is a responsible father who is always current on his support until April 1, 2013, when the factory he works at shuts down and he is laid off. John quickly obtains part-time employment but only earns a fraction of what he once earned. John does what he can but is only able to pay $75 per week in child support which is over 50% of his income but less than $100 he was ordered to pay. Even though John is paying far more than the percentage of what he should be paying, the fact that he pays less than his court ordered ($100 - $75 = $25) means that John is in violation of the court order and will continue to accrue judgment interest on the outstanding balance until John properly files a petition to modify support.
In other instances, the recipient of child support is cheated if the ex-spouse or obligor received an increase in pay or obtained a large Christmas bonus but failed to provide any portion of that for support. There is a wide variety of compensation that qualifies as "income" for child support purposes and each child receiving support may be entitled to their respective portion. This too may be obtained by either enforcing the current court order for support or filing a modification for support to increase the regularly scheduled support obligation.
You will be entitled to a hearing where a judge will consider the evidence. An experienced attorney will know the important evidence to present to the judge for his/her consideration. The other side will be allowed to present evidence showing they are still entitled to the same amount or even more. Your attorney will be allowed to cross examine the opposing witnesses. In the end, if the hearing is presented properly, you have a high likelihood of convincing the judge to modify the support amount.
The importance of these proceedings cannot be underestimated. You should not try to file these court documents without experienced legal guidance. It commonly is assumed to simply "go it alone" on, what appears to be, simple family matters. You should always consult an attorney to determine what appropriate measures can be taken to protect your best interests. At Hall & Rustom, LLC, we strive to think five moves ahead to protect not only your present interests, but your future interests. To schedule a free consultation, email attorney Michael Fritz or call (309) 699-4691 to set an appointment. If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.
Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses. He also concentrates in Estate Planning & Administration, and School Law.
The
use of the Internet or this form for communication with the firm or
individual member of the firm does not establish an attorney-client
relationship. Confidential or time-sensitive information should not be
sent through this form nor should the reader rely on the information
listed above as true in all circumstances. This information is provided
generally and any similarity between the information listed above and
an individual reader's case is purely coincidental.
The attorneys at Hall & Rustom LLC represent clients throughout the
entire state of Illinois, including, but not limited to, the cities of
Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap,
Metamora, Bartonville, Bloomington, Normal and any legal matter located
in Peoria County, Tazewell County, Woodford County, Marshall County,
Stark County, Henry County, Knox County and McLean County.
As technological advances in communication progress, so too will potential crimes involving electronic and telephone communication. Over the past few years, states like Illinois have enacted laws that criminalize behavior involving threats that create a "reasonable apprehension of receiving some harm" to a person involved in the communication. Simply stated, states like Illinois have criminalized threatening someone through electronic communications.
Throughout the news airwaves, we all heard the horrific story of the mother from Missouri that created a social networking account under a fake profile and proceeded to encourage a young teenage girl to kill herself. This type of irresponsible behavior is deplorable. While it was not considered criminal before, it could be now. This story, as well as other harassment stories, provided an impetus for lawmakers to draft legislation criminalizing a broad range of communication.
Presently, there are two types of electronic harassment statutes in Illinois:
Telephone Harassment or Harassment through Electronic Communications (720 ILCS 135/1/2), and;
Cyberstalking (720 ILCS 5/12-7.5)
So what are the differences between the two? First, Cyberstalking is a class 4 felony and telephone harassment is a Class B misdemeanor. But what are the other differences? Let's look at the statutes:
Sec. 1-2. Harassment through electronic communications.
(a) Harassment through electronic communications is the use of electronic communication for any of the following
purposes:
(1) Making any comment, request, suggestion or proposal which is obscene with an intent to offend;
(2) Interrupting, with the intent to harass, the telephone service or the electronic communication service of any person;
(3) Transmitting to any person, with the intent to harass and
regardless of whether the communication is read in its entirety or at
all, any file, document, or other communication which prevents that
person from using his or her telephone service or electronic
communications device;
(3.1) Transmitting an electronic communication or knowingly inducing a
person to transmit an electronic communication for the purpose of
harassing another person who is under 13 years of age, regardless of
whether the person under 13 years of age consents to the harassment, if
the defendant is at least 16 years of age at the time of the commission
of the offense;
(4) Threatening injury to the person or to the property of the person
to whom an electronic communication is directed or to any of his or her
family or household members; or
(5) Knowingly permitting any electronic communications device to be used
for any of the purposes mentioned in this subsection (a).
(b) As used in this Act:
(1) "Electronic communication" means any transfer of signs, signals,
writings, images, sounds, data or intelligence of any nature transmitted
in whole or in part by a wire, radio, electromagnetic, photoelectric or
photo-optical system. "Electronic communication" includes transmissions
by a computer through the Internet to another computer.
(2) "Family or household member" includes spouses, former spouses,
parents, children, stepchildren and other persons related by blood or by
present or prior marriage, persons who share or formerly shared a
common dwelling, persons who have or allegedly share a blood
relationship through a child, persons who have or have had a dating or
engagement relationship, and persons with disabilities and their
personal assistants. For purposes of this Act, neither a casual
acquaintanceship nor ordinary fraternization between 2 individuals in
business or social contexts shall be deemed to constitute a dating
relationship.
(c) Telecommunications carriers, commercial mobile service providers,
and providers of information services, including, but not limited to,
Internet service providers and hosting service providers, are not
liable under this Section, except for willful and wanton misconduct, by
virtue of the transmission, storage, or caching of electronic
communications or messages of others or by virtue of the provision of
other related telecommunications, commercial mobile services, or
information services used by others in violation of this Section.
This statute could (depending on the totality of the circumstances) criminalize the following actions:
Continuous calling with the intent to harass or interrupt the phone service of any person.
Sending harassing pictures, files, graphics, etc. with the intent to harass. (Don't send a picture of a gun and say, "Bang, you're next." That would likely be a crime under this statute.
Transmitting a communication to a child under 13 years of age for the purpose of harassing them. (Parents: Don't get involved in your children's petty fights with other classmates. You may commit a crime under this statute without knowing it).
Threatening to injure someone in a phone call.
Allowing someone to use your phone to threaten someone via electronic communication.
Violating this statute is a Class B Misdemeanor, punishable up to six (6) months in jail and/or a $1500 fine.
Cyberstalking (720 ILCS 5/12-7.5)
A person commits cyberstalking when he or she engages in
a course of conduct using electronic communication directed at a specific
person, and he or she knows or should know that would cause a reasonable person
to:
(1)fear for his or her safety or the
safety of a third person; or
(2)suffer other emotional distress.
(a-3)
A person commits cyberstalking when
he or she, knowingly and without
lawful justification, on at least 2 separate occasions,
harasses another person through the use of electronic communication and:
(1)at any time transmits a threat of
immediate or future bodily harm, sexual assault, confinement, or restraint and
the threat is directed towards that person or a family member of that person,
or
(2)places that person or a family member
of that person in reasonable apprehension of immediate or future bodily harm,
sexual assault, confinement, or restraint; or
(3)at any time knowingly solicits the
commission of an act by any person which would be a violation of this Code
directed towards that person or a family member of that person.
(a-5)
A person commits cyberstalking when
he or she, knowingly and without lawful justification, creates and maintains an
Internet website or webpage which is accessible to one or more third parties
for a period of at least 24 hours, and which contains statements harassing
another person and:
(1)which communicates a threat of
immediate or future bodily harm, sexual assault, confinement, or restraint,
where the threat is directed towards that person or a family member of that
person, or
(2)which places that person or a family
member of that person in reasonable apprehension of immediate or future bodily
harm, sexual assault, confinement, or restraint, or
(3)which knowingly solicits the
commission of an act by any person which would be a violation of this Code
directed towards that person or a family member of that person.
(b)Sentence. Cyberstalking is a Class 4
felony. A second or subsequent conviction for cyberstalking is a Class 3
felony.
(c)For purposes of this Section:
(1)"Course of conduct" means 2
or more acts, including but not limited to acts in which a defendant directly,
indirectly, or through third parties, by any action, method, device, or means
follows, monitors, observes, surveils, threatens, or communicates to or about,
a person, engages in other non-consensual contact, or interferes with or
damages a person's property or pet. The incarceration in a penal institution of
a person who commits the course of conduct is not a bar to prosecution under
this Section.
(2)"Electronic communication"
means any transfer of signs, signals, writings, sounds, data, or intelligence
of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectric, or photo-optical system. "Electronic
communication" includes transmissions by a computer through the Internet
to another computer.
(3)"Emotional distress" means
significant mental suffering, anxiety or alarm.
(4)"Harass" means to engage in
a knowing and willful course of conduct directed at a specific person that
alarms, torments, or terrorizes that person.
(5)"Non-consensual contact"
means any contact with the victim that is initiated or continued without the
victim's consent, including but not limited to being in the physical presence
of the victim; appearing within the sight of the victim; approaching or
confronting the victim in a public place or on private property; appearing at
the workplace or residence of the victim; entering onto or remaining on
property owned, leased, or occupied by the victim; or placing an object on, or
delivering an object to, property owned, leased, or occupied by the victim.
(6)"Reasonable person" means a
person in the victim's circumstances, with the victim's knowledge of the
defendant and the defendant's prior acts.
(7)"Third party" means any
person other than the person violating these provisions and the person or
persons towards whom the violator's actions are directed.
(d)Telecommunications carriers,
commercial mobile service providers, and providers of information services,
including, but not limited to, Internet service providers and hosting service
providers, are not liable under this Section, except for willful and wanton
misconduct, by virtue of the transmission, storage, or caching of electronic
communications or messages of others or by virtue of the provision of other
related telecommunications, commercial mobile services, or information services
used by others in violation of this Section.
So what does this mean?
First, a violation of this statute is a class 4 felony. So think before you type.
Second, you have to be careful not to use your computer or phone communication abilities when you know or should know that a reasonable person would 1) fear for their safety or 2) suffer emotional distress from your actions.
For example, if you text someone from your phone saying, "I'm going to kill you. I'm on my way over to your home right now," that would likely be a violation of this section. However, it's unclear whether threatening one (1) time would constitute a violation because the next section states that it has to happen on at least 2 separate occasions AND 1) you threaten future bodily harm, sexual assault, confinement, etc., OR 2) your threat places a person or a family member of that person in reasonable apprehension of immediate or future bodily harm.
This statute sounds similar to the telephone harassment statute; however, it goes a step further to require the communication be repeated (more than 2 times) and that it leads to a reasonable apprehension of harm being caused to the recepient.
This law is relatively new so there is not much case law defining what these sections actually mean. Simply use your common sense and try not to threaten with the intent of harassing another person.
It is strongly advised to not create false accounts on social networking sites such as Facebook. Prosecutors could file charges so long as they have probable cause you committed an offense. If they have ample evidence that you created a false profile with the intent to harass or threaten someone, you could open yourself up to criminal charges.
Will I be formally charged with this crime?
Your county's prosecuting authority has the sole discretion in filing these charges against you. The police simply investigate a complaint and then report it to the prosecuting authority. While you should not use your electronic communications to transmit threatening messages, you should use your discretion and understand that you COULD be charged with a crime if it's reported by the police.
I regularly advise my clients with children to monitor their online activity. While you cannot monitor every form of communication, you can play an active role in educating yourself and your child in treating people as you would like to be treated. If you have allowed your children the privilege of a cell phone, there is software that helps you monitor, block, and record certain activity. Further, you should pay attention to what your child is doing because you could be held responsible in some situations.
You have to be aware that some actions lead to greater consequences. Read the above statutes carefully and then make your own decisions.
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.
LEGAL DISCLAIMER
The use of the Internet or this form for communication with the firm
or individual member of the firm does not establish an attorney-client
relationship. Confidential or time-sensitive information should not be
sent through this form nor should the reader rely on the information
listed above as true in all circumstances. This information is provided
generally and any similarity between the information listed above and
an individual reader's case is purely coincidental.
The attorneys at Hall & Rustom LLC represent clients throughout the
entire state of Illinois, including, but not limited to, the cities of
Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap,
Metamora, Bartonville, Bloomington, Normal and any legal matter located
in Peoria County, Tazewell County, Woodford County, Marshall County,
Stark County, Henry County, Knox County and McLean County.
Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements. If you have a legal question, email Jeff Hall.
