CHICAGO, ILLINOIS-First off, motion to suppress evidence and quash arrest GRANTED at Daley Center. Not an everyday occurrence.  Perfect storm of a good judge, good facts and poor officer testimony.

The victory aside, how are cops still getting away with using small cracks in windshields (which they invariably find only after they stop a “suspicious” vehicle) as probable cause to stop motorists?  i can understand a spiderweb crack which is right in the driver’s line of sight, but a horizontal crack that is at the bottom of the windshield is far from the “material obstruction” required for a traffic stop.  As per usual, the Chicago Police and their cronies use the defective windshield excuse to pull over minorities and to justify searching them and checking to make sure that their licenses are not suspended.  This is no surprise.  What surprises me is that some judges, prosecutors and cops still haven’t picked up on the pretextual, racially-based nature of these stops.  For lack of a more politically correct example, many of my Hispanic clients who are unable to get licenses or have suspended licenses get pulled over for minor, often fake traffic infractions in order to get the money from them for towing fees, court costs and fines, and whatever else they can extort.  The police know that this demographic, because of the high number of immigrants, is more likely to be driving without a license or on a suspended license.  They pull over Hispanic, Mexican people at a much higher rate than any other group and make up the reason for the stop afterwards.

The good thing is this, and defense attorneys listen up…All of the case law is in the defendant’s favor.  In Illinois, we have People v. Johnson, People v. Mott and various other cases.  The gist is that the officer has often made a “good faith” (and I use that term liberally) mistake of law.  The law in Illinois prohibits driving with a windshield in such a defective condition that it materially impairs the driver’s view – specifically through the front windshield.  The chances that a police officer/state trooper was in exactly the right place to see the details of the windshield crack and, in a split second, decided that it was a material obstruction are very slim.  Seeing through a front windshield from behind a vehicle which presumably has seats and people in it is very difficult.  When an officer believes that a material obstruction is caused by the crack, they then make the traffic stop.  Unfortunately, these cracks are almost never photographed or even documented in any way by the officers, most likely in a concerted effort to inflate their traffic stop numbers.

But…Johnson and many other cases specifically say that an officer’s subjective mistake of law does not automatically lead to an objectively reasonable belief that a law has been violated.  In these cases, the test is based on the information available to the officer at the time of the stop.  Objectivity is determined by what a “reasonable officer” (how’s that for an oxymoron) would believe given the information known to the officer.  Most “reasonable officers” don’t have any training in the difference between a material and non-material obstruction.  A small crack at the level of the windshield wipers is non-material.

A huge set of fuzzy dice hanging from the rearview mirror may be a material obstruction.  Do the cops know the difference?  No.  Do they care?  Even less.  Once they make the stop, the chances of a defendant challenging it are so low that the officers get away with this behavior all too often.

It’s time we defense attorneys wise up to this scam and start pushing back, through motions to suppress and quash, against the unequal enforcement of the matrial obstruction law and against the fact that these traffic stops are nothing more than mere pretext to go on a fishing expedition for suspicious vehicles.  Granted, the police will find a reason to pull you over if they really want to, but it is not our job to simply assume that their explanations are valid.  Same thing goes for improper lane changes, “swerving within a lane” (don’t get me started on that), and failure to engage a turn signal within 6 miles of a lane change, or whatever the specific law may be in your neck of the woods.

Since prosecutorial discretion in Cook County is all but gone, thanks to Anita Alvarez and her “prosecute first, ask questions later” mandates to assistant state’s attorneys who are fully capable of looking at a case and deciding if it is worth prosecuting, the only way to push back is to fight these stops at every turn.  It may not be glamorous and it may not make you rich, but it will start to show the overzealous State Troopers and Chicago Police officers that at some point in the next 100 years, they will actually need probable cause to stop a vehicle.

Until that day comes, you’ll find me running around the Chicagoland area, filing motions to suppress and using the traffic courts for a real purpose.  And if you can’t find me in court, it’s most likely because I am in custody for having my GPS too close to my ipass…
-JSG 11/15/2011

(Don’t forget to support my effort to impeach or unseat Anita Alvarez for her blatant mandates to her minyons of prosecutors to fill the jails with as many citizens of Cook County as they can. Ironically, her reign of terror has had the worst effect on minorities – since she was touted as the first hispanic woman to ever be the State’s Attorney. She has probably locked up more hispanics than any white State’s Attorney ever could get away with. So with every tweet, let’s #impeachanitaalvarez. You’ll be glad you did!)