Wednesday, January 7, 2015

Supreme Court To Hear Case Involving Removal of Green Card Holder Involving Conviction for Minor Offense

On January 14, the United States Supreme Court will hear oral arguments on Mellouli v. Holder.  This case is significant because it will help clarify which criminal convictions could lead to deportation for lawful permanent residents.  The past few years, the federal government has stepped up efforts to deport lawful permanent residents for criminal convictions and this case could help clarify which crimes could lead to deportation from the United States.  The Supreme Court's decision could have serious implications for people who are, or who have, faced criminal prosecution.  So let's look at the facts of the case and the legal issues presented.


Moones Mellouli came to the United States in 2004 on a student visa from Tunisia.  He later became a lawful permanent resident.  He ended up pleading guilty to a misdemeanor in Kansas for possessing drug paraphernalia.  In particular he possessed a sock which he was using to store drugs that he would eventually use. So the paraphernalia was actually a sock.  The federal government then instituted removal proceedings based on his conviction based on a conviction of a state law related to the violation of a law involving a controlled substance.  The immigration court ordered Mellouli's removal from the United States and the Board of Immigration Appeals agreed with the immigration court and dismissed Mellouli's appeal.  The Court of Appeals agreed with the Board of Immigration Appeals and Mellouli appealed to the United States Supreme Court.  Mellouli is engaged to a United States Citizen and has since been removed from the United States.  If Mellouli loses, he could possibly never be able to get married to his U.S. Citizen fiance.


The removal statute, the statute that provides for the removal of legal permanent residents for criminal convictions, is complex.  Mellouli is arguing that the removal statute clearly states that the conviction must be directly tied to a controlled substance.  The Board of Immigration Appeals ruled that he may be removed if the conviction is based on paraphernalia that may be used in connection with a controlled substance.  Mellouli is arguing that the Board of Immigration Appeals decision should be set aside because it is contrary to the plain language of the statute and that the Board of Immigration Appeals has been inconsistent in the past when it comes to applying and interpreting the language of the statute in other cases.  The government is arguing that the Supreme Court should apply the statute broadly while Mellouli is arguing that the court should strictly apply the statute.


In the past, the Supreme Court has been unwilling to side with the removal of lawful permanent residents for convictions that involve minor criminal offenses.  If the court finds that the statute is ambiguous, it may refuse to apply it to uphold Mellouli's removal.  The hope is that this decision will help clarify a confusing area of law that makes it difficult for lawyers to provide accurate advice to criminal defendants who are not U.S. citizens and have to consider the immigration consequences of a criminal conviction.

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Monday, June 16, 2014

Federal Law Banning Firearm Straw Purchasers Upheld by Supreme Court

A divided Supreme Court upheld a federal law which prohibits people from buying a gun for another person, even though the person they are buying the gun for is legally allowed to own the gun.  In 2009, Bruce James Adamski, Jr. was arrested for a suspected bank robbery in Rocky Mountain Virginia.  Adamski was never charged for the bank robbery but during the course of investigating the robbery, police discovered that a few months earlier, Adamski had purchased a firearm which he had transferred to his uncle who lived in Easton Pennsylvania.  About three days before he purchased the firearm, Adamski's uncle had written him a check and had written "Glock 19 handgun" in the memo section of the check. It turns out that Adamski, a former police officer, had used his police discount to buy the gun for his uncle.  His uncle was legally allowed to own the firearm.  On the form which had to be filled out when the gun was purchased Adamski had failed to disclose that he was not going to be the actual owner of the gun even though he was warned on the form that lying in response that question was against the law and would subject him to criminal prosecution.  Adamski argued that he was not a straw purchaser because his uncle was legally allowed to own the gun.  The trial court rejected Adamski's argument and the Court of Appeals agreed with the trial court.  In a 5 to 4 decision, the United States Supreme Court agreed with the Court of Appeals and upheld Adamski's conviction.  Adamski had argued that the law in question was intended to prevent guns from getting into the hands of people that had no right to own a gun. Since his uncle was legally allowed to own a gun, he did not commit a crime.  The government argued that allowing Adamski to get away with lying would defeat their efforts to try to keep track of guns and prevent them from getting into the hands of people who should not own firearms.

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Wednesday, June 11, 2014

Stingray Related Lawsuit Filed Against Chicago Police

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.  

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Friday, June 6, 2014

California High Court Upholds Red Light Camera Tickets

A long running legal fight in California has ended and red light camera tickets are legal in California.  The case involved a woman who drove her BMW through a red light in a suburb of  Los Angeles.  A red light camera snapped a picture of her vehicle and she received a red light ticket in the mail.  She fought the ticket by going all the way to court and lost.  She was fined $436. California has the highest fines for red light tickets.  Most states have fines of $100, but California's fines are substantially higher.  26 states do not have red light cameras and some legal challenges are pending.  We 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.

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Thursday, June 5, 2014

Florida Case Shines Unprecedented Spotlight on "Stingray" Surveillance Technology

In an interesting case out of Florida, the public is getting detailed information about the secretive stingray fake cell phone tower which is being used by law enforcement officials to track particular cell phones.  Up until now, we have had general information about how these devices work.  However, a transcript released in a Florida case has provided us with the most detailed description of how this device works. On September 13, 2008, a Tallahassee woman was raped, and her purse, which contained her Verizon cell phone, was stolen.  Detectives contacted Verizon and obtained real time ping information from Verizon.  That information gave the police general information about where that phone was located but the police needed detailed location information. The thinking was that if they found the phone, they would find the rapist.  The police obtained the unique IMSI identifier of the victim's phone and started cruising the streets of the general area in which Verizon's real time ping data suggested the phone was located.  The stingray device scans all the cell phones in an area and tries to identify a particular phone through the phone's unique IMSI number. Once it identifies the phone it forces that particular phone to transmit data at full strength to the stingray tower, which is a fake cell phone tower, greatly depleting the battery of the phone.  This allows them to pinpoint the exact location of the cell phone.  Just like a cell phone registers with a carrier's cell phone tower, the stingray device forces the phone to register with the stingray tower.  This allows the police to pinpoint the exact location of the cell phone.  The stingray device was able to determine that the cell phone was located in a particular apartment building but could not tell the police the exact apartment in the building.  Officers then went door to door with a hand held stingray device and stood outside each door holding the device.  The officers located the phone inside apartment number 251, knocked on the door, and when the door was opened stuck a foot in the door and entered the apartment.  The police conducted a "protective sweep" of the apartment and forced everyone to wait until the police were able to obtain a search warrant allowing them to search the apartment.  The search resulted in the recovery of the purse and cell phone leading the police to make an arrest.  The defendant challenged the police action based on a lack of probable cause. The trial court denied the motion ruling that an "exigent circumstances" exception to the probable cause requirement of the 4th Amendment applied to the case because of the risk of the destruction of evidence. However, the Court of Appeals disagreed with the trial court and overturned the denial of the motion and ordered a new trial. 

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.

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Friday, May 30, 2014

Extremely Troubling 4th Amendment Case Out of Federal Court

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.

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Supreme Court Strikes Down Florida IQ Death Penalty Standard

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.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at or call us anytime at 1-800-228-7295.