What Are the Key Differences Between Aggravated Robbery and Aggravated Burglary?
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What is Considered an Arrest in Illinois?
Per Illinois Statutes, Chapter 725, Section 102-5 (Code of Criminal Procedure), an arrest is the act of taking a person into custody. Arrest happens in the state when the individual being arrested reasonably believes they are not free to leave. However, this does not necessarily require the use of handcuffs. Per 725 ILCS 5/107-2, a law enforcement officer typically can make an arrest when they have a warrant for such an arrest, have reasonable grounds to believe that a warrant has already been issued for the person's arrest, or has reasonable cause to believe that an individual has committed or is committing an offense.
As stipulated in 725 ILCS 5/107-5, an arrest is made in Illinois by an actual restraint of the person being arrested or by the person's submission to custody. A law enforcement officer generally can arrest without a warrant if they witness a crime being committed in their presence. They may also execute an arrest if they have probable cause that a crime was committed and the person being taken into custody committed the criminal offense. Generally, a law enforcement officer may arrest in several situations, including the following:
- Someone commits domestic violence, for instance, when a protection order is violated.
- The officer suspects that a person is driving under the influence (DUI).
- A person commits a criminal offense, which may either be a felony, misdemeanor, or an infraction. For instance, an individual may be arrested in Illinois for murder, robbery, sexual offense, battery, assault, traffic violation, public intoxication, and theft.
Not everyone who is arrested is necessarily charged with a crime. A law enforcement officer may arrest someone, take them into custody, question them, and then release the person without being charged with any offense. Two other things may happen after an arrest is made: The arrestee may be released with a request to the state's attorney to have a look at the case and file charges. On the other hand, the arrestee may be formally charged without having to inform the state's attorney. It is critical to understand the following concerning arrests in Illinois:
- Custody and Control - Custody generally means depriving a person of their freedom of action. It may also mean being interrogated or questioned by law enforcement after an arrest. In Illinois, law enforcement may hold a suspect in custody for up to 48 hours before charging them with suspected criminal charges. A person placed under formal arrest and temporarily detained must be released if law enforcement fails to charge them with a crime after 48 hours. Per 725 ILCS 5/103-3.5, anyone in police custody has the right to communicate free of charge with their family or an attorney no later than 3 hours after being taken into custody.
- Legal Authority - Any law enforcement agent, including a sheriff, a police officer, a deputy sheriff, and a state trooper, may execute an arrest in Illinois, with or without a warrant. Per ILC 5/107-2, a peace officer may also arrest in the state.
- Miranda Rights - Anyone taken into legal custody by law enforcement in Illinois is typically read their Miranda rights, which gives an arrestee the right to remain silent because anything they say can and will be held against them in a court of law. Furthermore, Miranda's rights give the arrestee the right to an attorney. Where an arrestee cannot afford one, the state will appoint one. In most cases, arrestees may find themselves subject to excessive interrogations by law enforcement officers if they fail to invoke their right to hire an attorney. It is a violation of their 5th amendment rights if an arrestee asks for an attorney and has expressed their wish not to answer further questions, but an officer continues to attempt to ask questions.
- Restraint and Transport - Under Illinois law, law enforcement officers are allowed to use some restraints when executing arrests. Per 720 ILCS 5/7-5, based on the totality of the situation, a law enforcement officer is justified in the use of any force that they reasonably believe is necessary to defend themselves or others from bodily harm when making an arrest. After making an arrest, the arresting officer must transport the suspect to the detention facility.
- Booking Process - Booking involves entering a charge against an arrestee in a record known as the arrest book. This process creates an official record of an arrest and typically begins with recording an arrestee's name, address, and any other personal information. Their alleged criminal offense will also be recorded based on the police citation. Following this, the suspect's fingerprints and mugshot are taken, while the arrestee gives up their clothing and other personal items for safekeeping during the time they will spend in custody. In some instances, a suspect may also be required to submit to a full-body search, which is generally conducted to ensure the safety of the holding facility.
One big area of confusion is arrest vs. detainment. Detainment implies temporarily suspending a person's freedom while they are being questioned by law enforcement for suspicion that the person is engaging in criminal activity. For instance, an officer may detain an individual who rushed out of a store with some items while trying to figure out if they paid or not. The detainment process may help law enforcement to find probable cause that links a person to a crime. On the other hand, in an arrest, a law enforcement officer retains a person's freedom of movement due to their possible involvement in crime, which usually involves taking the suspect into custody.
What is Unlawful Arrest in Illinois?
An unlawful arrest in Illinois generally occurs when a person is arrested or detained against their will without probable cause. While law enforcement has the right to arrest people who violate the law, it is illegal for them to make arrests without proper evidence of guilt or arbitrarily. When this happens, it is an unlawful arrest. A legal arrest requires a standard of evidence known as probable cause. For instance, if someone annoyed a law enforcement officer but did not break any law and the officer arrests the person, that is most likely an unlawful arrest. Per 752 ILCS 5/107-4, a court will discharge a person if it determines that the individual was unlawfully arrested in the state by an out-of-state law enforcement officer.
The following are common indicators that an individual has been arrested unlawfully in Illinois:
- There is no Probable Cause - Probable cause is not a mere suspicion that someone has committed a crime. Any legal arrest must be based on probable cause, which is the facts or belief that a person has indeed broken the law. Any arrest made without probable cause, even if it is a warrant arrest, is an unlawful arrest and a violation of a person's right to freedom from unreasonable seizure.
- Arrest Without Warrants - Even though Illinois permits arrest without warrant under 750 ILCS 60/301, a warrantless arrest may become unlawful if it does not follow due process or under state or federal laws on arrest execution.
- The Arrest Violates Constitutional Rights - Generally, state and federal constitutions outline the legal parameters for executing arrests. Hence, any arrest that violates a person's constitutional rights as laid down in the constitution is considered unlawful. For instance, unreasonable search and seizure when making an arrest can make the arrest unlawful in Illinois. Similarly, when an officer fails to read a suspect's Miranda rights to them before interrogation or questioning, it becomes an unlawful arrest.
- Racial Discrimination and Profiling - Racial profiling is a practice used by police officers to levy suspicion of committing crimes against people solely based on their ethnicity, race, religion, or national origin. Arresting anyone in Illinois based on racial profiling is considered a form of discrimination, and it is an unlawful arrest. Any arrest made under this circumstance violates the arrestee's Fourth Amendment right against unreasonable searches/inquiries and confiscations.
- Mistaken Identity - Arresting the wrong person, even when there is probable cause that an offense has been committed, is an unlawful arrest.
- Procedural Violation - Any arrest process that violates the procedures established in 725 ILCS 5 (Code of Criminal Procedure) in Illinois is considered an unlawful arrest.
Unlawful arrests often have major impacts on people's reputation and dignity and, in some situations, may cost them their jobs or employment opportunities. Furthermore, a person arrested unlawfully may suffer some mental and emotional consequences in addition to sustaining physical injury in the process of getting arrested.
There are also legal consequences to unlawful arrests in Illinois. Anyone unlawfully arrested generally has up to one year to file a claim in a state court and up to two years in a federal court for compensation. Such a person may seek compensation for damages such as emotional distress, lost wages, reputational damage, and legal fees. If no criminal case results from an unlawful arrest, the arrestee may exercise their right to hold law enforcement accountable for such an arrest.
Are Arrest Records Public in Illinois?
Per 5 ILCS 140/2.15 (Freedom of Information Act), Illinois public records are generally considered to be accessible to the general public. However, some arrest records are restricted from public disclosure by state law or marked confidential by court order. According to Section 2.15 9(a) of the Illinois Freedom of Information Act, a typical arrest record in the state may include identity information of the record holder (name, address, age, photograph), arrest charges, the date, time, and location of the arrest, and details of the investigating or arresting law enforcement agency.
Generally, details such as an arrestee's name, location of arrest, date and time of arrest, arrest charges, and information about the arresting law enforcement agency are publicly made available in Illinois arrest records. Mugshots in arrest records may generally be accessed by the state public, especially on law enforcement agencies' official websites. However, 5 ILC 140/2.15(e) prohibits law enforcement agencies from publishing mugshots of individuals on their social media websites in connection with petty offenses, civil offenses, business offenses, and Class B and C misdemeanors. The only exception is if a mugshot is posted to social media to assist law enforcement in their search for a person of interest, fugitive, or someone wanted concerning a crime other than a business offense, petty offense, or a Class B or C misdemeanor.
State law exempts certain information in Illinois arrest records from public disclosure. As a result, such information may not be publicly accessed. They typically include juvenile records, victim details/information, driver's license numbers, Social Security numbers, and sealed arrest records. Similarly, any information capable of compromising the privacy or safety of a person, including contact details, is not made publicly accessible unless the disclosure of that information is authorized by court order or law.
What are the Types of Arrest Records in Illinois?
Arrest records are primarily categorized into two types in Illinois: those available at the local (city or county) level and the ones that may be accessed at the state level, which are largely found in criminal records. Generally, most arrests in the state are made at the city/town and county level, and records of these arrests are maintained by the local arresting agencies, including the sheriff's offices and police departments. On the other hand, records of arrests at the state level are primarily held by the Illinois State Police. They typically include arrest records collected from various local law enforcement agencies and records of arrests made by the Illinois State Police Trooper.
Where are Arrest Records Kept in Illinois?
Illinois arrest records are generally maintained by the following local and state agencies:
- Local Law Enforcement Agencies - Local police departments and county sheriff's offices maintain arrest records for arrests made within their jurisdictions.
- The Illinois State Police (ISP) - The Illinois State Police (ISP) maintains records of arrests made by state troopers and those collected from local law enforcement agencies across the state.
- The Illinois Court System - Illinois courts, particularly the Circuit Courts in the state, have records of arrests in court cases/proceedings. They are maintained by the Circuit Court Clerks.
- Federal Agencies - Records of arrests made in Illinois for offenses related to federal crimes are maintained by federal agencies like the Federal Bureau of Investigation (FBI).
- The Illinois Department of Corrections - The record custodian at the state's Department of Corrections (IDOC) maintains certain information about inmates' arrest records.
How To Find Public Arrest Records in Illinois
Illinois arrest records are available online and offline. The state has multiple sources from which members of the public may obtain and access arrest records, and they may do so by mail, online, or in person, depending on the source. Anyone looking to obtain Illinois arrest records may use any of the following available options:
- Local Law Enforcement Agencies - The first point of contact for arrest records in Illinois are the local law enforcement agencies, including the police departments and county sheriff's offices. These agencies make arrests at the local level and keep records of such arrests on file for dissemination to the public upon request. Generally, most sheriff's offices and police departments permit in-person and mail requests, even though the procedure for making those requests may vary. While some may require requesters to complete request forms and provide copies of their IDs, others may only need requesters to submit written letters indicating the record of interest. Some county sheriff's offices and local police departments maintain online databases containing arrest information of individuals arrested within their jurisdictions, where anyone may access the records.
- The Illinois State Police - A person's Illinois arrest record may be obtained by requesting a copy of their criminal record from the State Police using the CriminalHistoryInformationResponseProcess (CHIRP). Arrest records are typicallypart of a person's criminal record. The CHIRP requires users to register a digital ID to enable them to request criminal records through name-based searches. Users are usually charged a nominal fee for using this service.
- The Illinois Department of Corrections (IDOC) - Interested persons may use the IndividualinCustodySearchsystem to find arrest information about inmates incarcerated at the Illinois Department of Corrections facility. Searches may be done using inmates' last names, birthdates, or IDOC numbers. Information on this system may be accessed by public organizations and the general public.
- The Illinois Court System - Members of the public may request copies of criminal records from the clerk of courts for cases heard in their local jurisdictions and extract the arrest reports from such criminal records. Alternatively, the state's court system maintains a court record repository known as re:SearchIL. This site requires users to register and offers a name-based criminal record search.
- Third-Party Record Search Sites - One of the most convenient ways to find Illinois arrest records is generally through independent record service websites like RecordsFinder. In many instances, these websites allow users to search records of interests by name and location. However, it is possible not to obtain the most comprehensive details about an Illinois arrest record using a third-party site as they are not affiliated with the state government.
How Long Do Arrests Stay on the Record in Illinois?
In Illinois, an arrest record may stay on a person's criminal record for life unless it is expunged or sealed. Typically, arrests in which the prosecution chose not to file charges and those that did not lead to convictions may be expunged in the state. Some arrests (not all) that led to conviction may also be expunged in certain instances.
How To Seal or Expunge an Arrest Record in Illinois
There are three options for clearing arrest records and criminal records in Illinois. These are sealing, expungement, and executive clemency. Sealing typically hides a person's arrest records from the larger public but may still be seen by law enforcement agencies. On the other hand, expungement erases arrest records from a person's criminal records, making it look like those arrests never happened. Executive clemency is for individuals who do not qualify for sealing or expungement. It generally involves applying for a pardon from the Governor to forgive criminal convictions. However, the pardon will not hide or erase the person's conviction or arrest record. They will have to apply to have their record expunged once they have obtained a pardon authorizing expungement.
Generally, an individual whose criminal records in Illinois have arrests and charges may apply to have the records expunged. However, they must not have pending criminal charges or uncompleted sentences, including probation, parole, and court supervision. The following types of arrests may be expunged in Illinois:
- Arrests that resulted in convictions for felonies and misdemeanors under any of the following circumstances:
- The offender received a pardon from the Governor for expungement
- The conviction was vacated or reversed
- The offense is an eligible misdemeanor or class 4 cannabis conviction under 410 ILCS 705 (the state's Cannabis Regulation and Tax Act)
- Arrests for felonies and misdemeanors that did not result in any conviction
- Arrests that resulted in sentences for court supervision. These may be expunged if 2 years have passed since the offender finished their court supervision, except for offenses such as criminal sexual abuse (victim at least 18 years old), domestic battery, operating an uninsured vehicle, and display of false insurance card. These are only eligible for expungement after 5 years have passed since the offender completed their court supervision.
To file for an expungement in Illinois, an eligible person must first obtain copies of their arrest or criminal records. They may get them from the local law enforcement agency, the Circuit Clerk, or directly from the Illinois State Police. After obtaining copies of these records, the individual should complete the Request to Expunge & Impound and/or Seal Criminal Records Form and file it with the Circuit Clerk in the county where they were arrested or charged with the offense. The Illinois Courts provide all other approved forms for expungement and sealing, depending on a person's situation. Some counties may require attaching copies of criminal records while filing an expungement application with the Circuit Clerk.
Illinois allows anyone requesting arrest expungement to file their application in person, by mail, or electronically. For mail requests, applicants must attach self-addressed stamped envelopes to enable the Circuit Clerk to mail copies of the files stamped copies. Any person who chooses to file their request electronically should use Odyssey e-filing and follow the prompts. Once a request to expunge an arrest record is filled in Illinois, the prosecutors, police departments, and other law enforcement agencies listed in the Notice of Filing for Expungement and/or Sealing Form generally have 60 days from the day they receive the request to file a written objection.
If there is an objection, the court will schedule a hearing, and if, after the hearing, the judge approves the request, the Circuit Clerk will send copies of the Order to all the applicable law enforcement agencies and prosecutors. These agencies usually have up to 60 days to seal or expunge the records listed in the court Order.
