For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.legaldefenderspc.com or call us anytime at 1-800-228-7295.
Monday, June 16, 2014
Wednesday, June 11, 2014
Back in February, Freddy Martinez, a 27 year old resident of Chicago who works in the software industry, attended a rally in Chicago and noticed what appeared to him to be newly installed cell phone equipment next to unmarked Chicago Police vehicles. He immediately suspected that these were the fabled stingray fake cell phone towers which are being used around the country by law enforcement agencies to secretly intercept cell phone calls and text messages. We have been reporting on the expanding use of these devices nationally. This is the first time that we are reporting that they may be in use in Chicago. In March Martinez filed a Freedom of Information request asking the Chicago Police to provide information regarding whether they are using these stingray devices. He was told that he would be receiving a response within a few days. When he did not receive a response he kept following up without any success. The Chicago Police have not responded to his request. Last Friday Martinez filed a lawsuit alleging that the Chicago Police have willfully disregarded a Freedom of Information request and that they must comply to his lawful request. It is customary for the vendor to include language in sales contracts with cities and law enforcement agencies that they are to keep all information about these devices secret.
We will monitor this case to see if these devices are being used in Chicago.
Friday, June 6, 2014
recently reported that the Illinois Supreme Court heard oral arguments on a case challenging the constitutionality of red light camera tickets. The California case was closely watched because of the significance of policy decisions in California. Opponents of red light camera tickets suffered a significant let down because the court struck down all the arguments raised by the driver. Her first argument was that the officer had no personal knowledge of how the automated data was collected or whether the camera was working properly at the time of the alleged offense. The Court dismissed that argument by finding that the evidence offered, a picture of the red light and the car going through the intersection was substantive evidence not demonstrative evidence which would require testimony of someone having the direct knowledge that the driver claimed the officer did not have. The driver argued that the evidence constituted hearsay but the court dismissed that argument by holding that what the camera is recording is something that a machine does and is not making a statement. The Court struck down the driver's argument based on the technician who prepared the photo did not show up at trial and that she was not given the right to confront her accuser. The final argument centered around the vendor, the company operating the red light camera for the city. Redflex Technology Systems has been in the news lately, and not for good reasons. Redflex operated cameras in Chicago until recently when it was discovered that employees had been involved in bribery schemes. An executive or Redflex has recently been indicted in Federal Court and Chicago has stopped doing business with Redflex. All of these issues were raised by the driver in this case and the California court dismissed those arguments as well holding that linking these issues with the case would be pure conjecture.
We will wait to see if the Illinois Supreme Court rules differently.
Thursday, June 5, 2014
The testimony regarding the use of the stingray device was testimony given at the trial. This is the first time this level of detail about stingray has ever been made public. The officer providing the testimony also stated that he had used this device "200 or more times" and that the device had been "100% percent" accurate. After this news became public, the vice president of the Florida ACLU sent a Freedom of Information request to the local police requesting all the documentation regarding the use of the stingray device. After communicating with the police officer who had custody of this information that he would be allowing the ACLU vice president access to the documents, the door was suddenly shut closed. The ACLU was informed that the officer had been deputized by the United States Marshall's Office and since he was now a federal law enforcement officer a state Freedom of Information request did not apply to him. The ACLU then filed a an emergency motion asking a Florida court to order the release of the requested information. It now turns out that apparently the requested information has been moved hundreds of miles away further thwarting the ACLU's effort to obtain the requested documents. There is clearly a frantic effort by state and federal officials to do everything they can to keep this information secret. It will be interesting to see if the courts step in and stop the government from taking deliberate acts to thwart the public's right to know to what extent the government will go to track us.
Friday, May 30, 2014
I want to bring our readers attention to one of the most troubling 4th Amendment decisions that I have ever run into. Keep in mind that I have been practicing law for over 20 years so I have seen it all. But this case might be the most outrageous violation of the 4th Amendment's protection from unreasonable searches and seizures. The case is United States of America v. Cindy Lee Westhoven, No. 13-2065. The case is out of the 10th Circuit. On April 18, 2012, a Border Patrol Agent was patrolling Highway 80 in New Mexico, which is about 45 miles from the Mexico border. He observed Westhoven drive her Ford F-150 in the opposite direction of the highway he was travelling on. The agent testified that this highway is frequently used to transport illegal aliens. As Westhoven drove past him, the agent testified that Westhoven had a "stiff posture" and her arms were "straight and locked out" at a "ten-and-two position on the steering wheel." The truck had tinted windows and an Arizona license plate. The agent turned his vehicle around and started following her vehicle. At some point Westhoven hit her brakes to slow down when she noticed the agent was following her. The agent checked the registration of the vehicle, which was from Arizona, became suspicious that the vehicle was transporting illegal aliens, turned on his lights and pulled over the vehicle. When he first approached Westhoven he noticed that she had scarring and acne on her right cheek and became suspicious that she was a methamphetamine user. The officer asked her where she was going and noticed that she appeared nervous by stuttering and taking long pauses. He became suspicious of her claims to be shopping in the area and noticed that she had 2 cell phones, which is common, in his opinion, of people engaged in illegal activity. He ran her license, found no warrants, but a prior conviction for retail theft. When the agent returned to Westhoven's vehicle she asked him if she would be allowed to leave and if the officer suspected she was "hauling illegal aliens." The officer asked her to roll down her window so she could see and Westhoven refused. The officer then asked to search the vehicle and Westhoven refused once again. At that point the agent asked Westhoven to exit the vehicle and called for a canine unit to arrive to sniff the vehicle for drugs. Five to ten minutes later, the canine unit arrived, and less than 20 minutes after the vehicle was pulled over, the canine smelled the truck, and detected the presence of marijuana. Westhoven was charged with one count of Possession with Intent to Distribute Marijuana. She filed a Motion to Suppress the stop and search of her vehicle and the trial court denied her petition. Westhoven then entered a conditional guilty plea allowing her to withdraw her guilty plea if she was successful in her appeal.
The Court of Appeals affirmed the decision of the trial court and found that the police had probable cause to stop Westhoven's vehicle and to conduct the search of her vehicle. I have a direct link to the opinion above so you can read it yourself. I fail to see "specific, articulable facts" which would convince a judge that the officer had probable cause to believe that Westhoven was up to no good. I refuse to believe acne or scarring on her cheek, or the way she was holding her steering wheel, or the fact that she was nervous could ever have been considered by the framers of our Constitution as justification for the police to stop a citizen, detain them and then search their vehicle. This case is an absolute outrage and should be reviewed by the United States Supreme Court. To allow a ruling like this to stand would be an insult to our Constitution.
Earlier this week the United States Supreme Court struck down a Florida IQ standard which determined whether an IQ test score determined if an inmate was mentally retarded for purposes of imposing the death penalty. We first reported on this case on March 2, 2014. We had reported about the oral arguments and the details about the case. The case involved the case of Florida death row inmate Freddie Lee Hall who had been convicted of the kidnapping and murder of a pregnant 21 year old woman who he had driven to a remote location and raped and killed her. Hall, and an accomplice, had also killed a Sheriff's Deputy. Hall was sentenced to death while is accomplice was sentenced to life in prison. Hall had taken several IQ tests throughout his life and the scores averaged in the low 70's. In 2002 the Supreme Court ruled that executing "mentally retarded" individuals is unconstitutional. However, the Supreme Court left the question of what is considered "mentally retarded" unanswered. In response, Florida imposed a strict IQ standard which held that anyone with an IQ above 70 was not considered "mentally retarded." This case caused the Supreme Court to determine whether Florida's strict IQ standard was constitutional. In a 5 to 4 decision, the United States Supreme Court found that Florida's IQ standard was unconstitutional because it did not give enough protections to ensure that "mentally retarded" defendants would not be executed. The majority opinion was written by Justice Anthony Kennedy. He held that Florida's strict IQ standard that if an inmate is found to have an IQ above 70, "all further exploration of intellectual disability" is cut off. He went on to state that "this rigid rule . . . creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional." In the present case, Hall has short term memory loss, significant speech impairment, cannot perform basic arithmetic, can't cook for himself and has significant difficulty comprehending adult conversations. Florida's IQ standard cuts off considering any of these factors once it is proven that his IQ scores are above 70 and does not take into consideration the margin of error in IQ tests.
Friday, May 23, 2014
In a bill pending before the Illinois Legislature, would give DUI offenders with four more more DUI convictions who have had their licenses revoked and are unable to drive, a chance to obtain a Restrictive Driving Permit which would allow them to drive back and forth from work. The bill is being sponsored by Democratic Representative Elaine Nekritz who was moved to propose the legislation after meeting with a constituent who had related his story to her and she attended Alcoholics Anonymous Meetings with him and realized that an injustice was being done to a man who had turned his life around. The proposed legislation would still not make it easy for a repeat DUI offender to get their partial driving privileges restored. The driver would still be required to jump through several difficult hoops but would at least give them a chance. The driver would have to wait five years since their last DUI conviction, have completed rehabilitation successfully, been clean and sober for at least three years and appeal to the Illinois Secretary of State for a Restrictive Driving Program. If the Restrictive Driving Permit is granted the driver would be required to obtain, and pay for, a breath device which would require that they breathe into the device prior to starting the vehicle which would lock the vehicle if it detects alcohol. The proposed legislation has created lots of controversy with different groups going in different directions. Both Legislators and DUI groups are split on the measure. The Secretary of State and Illinois Governor Pat Quinn have not taken a position on the proposed legislation.