Dear Jon:

Help, I got arrested!

Last week, the DEA and Chicago Police set up sting on me and like an idiot, I walked right into it. They say that they received information from an informant that I would be delivering 4 eight-balls of cocaine to a guy at a certain address. They say that they had a description of me and of my car and that they watched me pull into the Citgo station on Armitage. According to the cops, they watched me get out of my car and go into the station. At that time, one undercover guy followed me inside while another undercover went over to my car (my friend was sitting in the passenger's seat). They claim that the cop looked in my window and saw a small bag of weed in the open ash-tray. That one then radioed to the one inside the gas station with me, and then I got arrested. They searched me on the spot and found a small bag of cocaine in my pocket. Then they started asking me all sorts of questions and the next thing I knew we were all back at my house where they found 4 kilos of cocaine in my other car in the garage. Help!

--Ooops

 

Dear Oooops:

Certainly we can help. A large part of our practice is just these kinds of cases. Sit tight; these cases can take a while. Your case seems to break down into two distinct phases. First, did they have a right to arrest and search you at the gas station, and second did they violate your rights when they searched your garage?

It sounds to me like the DEA was working with Chicago to set up a controlled buy. They arrange a meeting and then set up surveillance of the predetermined location. And the informant makes the purchase using pre-marked bills in view of the officers. Once the transaction is complete, the officers break surveillance and move in for an arrest. This way they can charge the suspect with the more serious charge of Delivery of Controlled Substance as opposed to the less serious (although still very serious) of Possession or Possession with Intent to Deliver.

Here, for whatever reason, the officers made the decision to abort the controlled buy and move in for the arrest before the transaction could occur. This I find very curious.

First, it's a bigger feather in the officer's cap to make an arrest for the more serious charge. So why stop the deal before it's finished?

Secondly, an officer must have probable cause to make an arrest or conduct a search. It sounds like the officers are relying on the joint for their probable cause here and not the information they received from the informant. This is also questionable in that for how long was your friend in the car by himself? Certainly the officer didn't see you place the joint in the ashtray. And was the officer able to see what your friend was doing while alone in the car? It is just as likely that your friend put the joint in the ashtray. Was the joint lit so that the officer could claim he smelled pot? Or did it just look like a cigarette? Does this add up to probable cause to arrest you? We would need more information, but it looks fishy so far.

The second question is whether they had the right to search you garage. I'm afraid that with what you have told me, there are really more questions that answers in my mind. For example, did you sign a 'consent to search' form? Did you give them verbal consent? Did they promise or threaten you to get you to consent?

The bottom line in a case like yours is a question of did they violated your Fourth Amendment right to be free of unlawful searches? Without more information we can't really answer that now. However, based on my experience, I'm guessing the answer is yes.

--Jon

Jon Erickson is an attorney at ERICKSON & OPPENHEIMER. He can be reached at
773-875-4646.