Articles Posted in Drug Crimes

Stingray Cell TowerOn Friday, Illinois Governor Bruce Rauner signed a bill into law which requires law enforcement officials to obtain a warrant before deploying a stingray device to intercept a person’s cell phone communications to determine their location.

A stingray device is basically a cell phone simulator which intercepts the transmission from cell phones without anyone’s knowledge or consent.  In some cases the stingray can intercept actual phone calls and text messages.  The stingray tower will fool the cell phone into thinking it is communicating with the cell phone carrier’s cell phone tower when it is actually communicating with a tower that is being run and monitored by law enforcement agents.  The stingray tower doesn’t just target one device.  It will intercept the cell phone transmission of all the cell phones in a particular location.  Unknown to anyone, law enforcement officials are listening to the conversations and intercepting text messages and other data communications.  Law enforcement agencies have been using stingray towers for several years without any scrutiny.  A few years ago in a federal drug case in California, federal agents claimed that they had received a tip from a confidential informant about the drug dealing activity of a defendant charged with dealing drugs.  During the discovery phase, prosecutors mistakenly turned over documents to the defense which revealed the use of these stingray devices.  Before this case, nobody had ever heard of such devices.   The federal government sought to block the defense from obtaining any discovery about these devices claiming that national security would be compromised.  The Court eventually ordered the government to turn over the stingray discovery to the defense but ultimately admitted the evidence obtained by the stingray device.  In response to this case, the State of California passed legislation requiring that the police obtain a warrant before deploying a stingray. Several states, such as Washington, Virginia, Minnesota and Utah joined California and enacted a similar warrant requirement.  Last year, the Department of Homeland Security and the Justice Department imposed rules which require that federal agents obtain a warrant before deploying a stingray.

Last month, for the first time, a federal judge, in a drug case, suppressed evidence that had been obtained by a stingray that had been used without a warrant.  U.S. Drug Enforcement agents had used a stingray to locate a cell phone that had been used in a drug investigation.  The agents used the stingray to track the cell phone to the Defendant’s apartment.  U.S. District Judge William Pauley ruled that “absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device.”  The Judge suppressed all of the evidence obtained by the use of the stingray device.  This marks the first time that any court has suppressed any evidence obtained by the use of a stingray.

unnamedIn April of this year, the United States Supreme Court handed down a decision in Rodriguez v. United States which places serious limitations on traffic stops conducted by the police. In Rodriguez the Supreme Court ruled that the police cannot extend the duration of a traffic stop, even for a “de-minimis” amount of time, without reasonable suspicion for reasons unrelated to vehicle and driver safety.  A police officer stopped Rodriguez for driving on the shoulder in Nebraska.  After the officer did everything related to the stop, including checking his license, insurance and issuing a warning, he asked Rodriguez if he would give him permission to walk his dog around his vehicle to check for the presence of drugs.  When Rodriguez refused, the officer told him to wait until a second squad car arrived with the dog.  After the second officer arrived, the officer walked the dog around Rodriguez’s vehicle and notified the officer that it had detected drugs.  The officer searched the vehicle and discovered methamphetamine.  Rodriguez was arrested and charged with various federal drug offenses.  Rodriguez filed a Motion to Suppress claiming that the officer unreasonable delayed the stop to investigate other crimes without reasonable suspicion.  The Federal Magistrate, who conducted the hearing on the motion, agreed that there was no suspicion to support detaining Rodriguez but that since the detention only took 7 to 8 minutes, it was “de minimis” and did not infringe on his personal liberty.  The Magistrate recommended denial of the motion and the Federal Judge agreed and denied Rodriguez’s motion.  Rodriguez entered a conditional guilty plea and was sentenced to 5 years in Federal Prison.  The Circuit Court of Appeals agreed with the District Court and Rodriguez appealed to the United States Supreme Court.  The Supreme Court held “absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.  The police authority for a traffic stop seizure ends as soon as soon as the tasks necessary for the traffic stop are completed, or should reasonably have been completed.  So once the officer checks the license, insurance, checks for warrants and issues the ticket, the police officer’s authority to detain someone ends.  The case was sent back to the District Court to address the issue of whether the officer had any reasonable suspicion to call for the dog because this issue was never explored by the trial court.

This case is important because this stuff happens all the time.  The police will pull over a vehicle and once the ticket is issued start asking questions and delay the driver to come up with more evidence. What started as a simple traffic stop quickly evolves into a gun case or a drug case.

In case you think that this doesn’t happen often, there is a similar allegation in a drug case currently pending in Kane County.  On August 13, 2005, a Utah woman was pulled over on I-90 near Hampshire by a Kane County Sheriff’s Deputy.  According to her attorney, after she was issued a warning, the Deputy started asking the woman questions that had nothing to do with the traffic stop. The Deputy repeatedly asked for consent to search her vehicle and was repeatedly denied permission. The Deputy called for a drug sniffing dog. The vehicle was eventually searched and heroin was found.  The driver claims that the dog never signaled the presence of drugs but her vehicle was searched anyway.  This case has focused attention on the Kane County Sheriff’s Office.  Judges have ruled against the Kane County Sheriff’s Office on 3 cases in the past year.  One case involved the strip search of a Minnesota man who was illegally strip searched, a traffic stop of a retired Oregon deputy that was improperly prolonged in 2014, and the stop of 3 Minnesota residents that was improperly prolonged. The Minnesota man who was improperly strip searched and the retired Oregon deputy have filed Federal lawsuits against Kane County and the Sheriff.   The case involving the 3 Minnesota residents has been appealed by prosecutors.

MarijuanaLast week the United States Supreme Court rejected the appeal of a 76 year old Alabama man who had been sentenced to life in prison for possession of less than 3 pounds of marijuana that he had grown for personal use.  Lee Carroll Brooker had been convicted of possessing less than three pounds of marijuana that he had grown for personal use. Brooker is a disabled veteran who claimed that he had grown the marijuana to treat chronic pain.  Police discovered the marijuana when they visited a home he shared with his son while they were searching for stolen property.  The police discovered 37 marijuana plants growing in the back yard but had no evidence that he was selling marijuana.  But because of an Alabama statute which allows him to be charged with trafficking if the weight of the marijuana is more than 2.2 pounds, he was convicted of trafficking.  The statute also provides for a mandatory life sentence for anyone convicted of this crime who has a prior criminal record.  Brooker was sentenced to life in prison.  The trial judge told Brooker that he would sentence him to a lesser sentence but that his hands were tied because of the mandatory sentencing provision of the statute.  The Alabama Supreme Court upheld the life sentence with a powerful dissenting opinion by the Chief Justice of the Alabama Supreme Court.  The Alabama Attorney General argued that the life sentence was also based on Carroll’s background which includes convictions for Drug Smuggling and Armed Robbery.  Carroll appealed to the United States Supreme Court arguing that the life sentence for marijuana possession violated the Constitution’s prohibition against Cruel and Unusual Punishment.  Last week, the Supreme Court rejected his appeal.  By rejecting his appeal, the Supreme Court allowed the Alabama Supreme Court decision stand which allows for a life sentence to be imposed on a man convicted of Marijuana Possession.

This case is significant because it highlights the flaws inherent to mandatory sentencing statutes which take away the discretion from judges to do the right thing.  Mandatory minimum sentencing statutes are laws which require a minimum and maximum sentence for a conviction.  Such sentencing laws prohibit a judge from imposing a sentence other than what is required by the legislature.  The criticism of such statutes is that it prohibits a judge from taking a particular individual’s case into consideration when it comes to imposing a just and effective sentence.  Mandatory minimum sentences started being enacted in the 80’s when legislators wanted to take a more strict approach to crime and take away the ability of judges to be lenient when it came to punishing criminal defendants.  The prison populations throughout the country is credited with the rise of prison populations.  Mandatory minimum sentencing has become part of the current political debate with people from both political parties arguing that such sentences are unjust and need to be reformed in order to fix a broken criminal justice system.  The fact that we are seeing people from both sides of the political sides agreeing that mandatory minimum sentencing needs to be addressed is an encouraging sign.  It is very rare to see people agreeing to much in Washington lately.

James Dimeas is an award winning criminal defense attorney and author with more than 23 years of experience aggressively representing his clients in criminal cases.  If you have a criminal case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.

DUIThe Illinois Supreme Court has ruled that the police can pull over a vehicle just for trying to avoid a police roadblock. Jacob Timmsen was driving down US Highway 31 when he saw bright orange warning signs that he was about to enter a police checkpoint. Timmsen activated his turn single and made a U-turn at a railroad crossing about 50 feet away from the roadblock. There was nothing improper about the maneuver. He properly used his turn signal and made an otherwise legal and proper driving maneuver. In spite of the fact that he was driving legally, a County Deputy working the police roadblock checkpoint pulled over Timmsen merely because he suspected that he was trying to avoid the police roadblock. After Timmsen was detained and interrogated by the deputy, it was determined that he was driving on a suspended license and placed under arrest. After he was arrested, the deputy searched Timmsen’s vehicle and found less than a gram of marijuana inside his vehicle. Timmsen was subsequently convicted and sentenced to 90 days in county jail. After the conviction, Timmsen appealed the case and the Court of Appeals ruled in his favor finding that the maneuver made by Timmsen did not provide reasonable articulable suspicion that Timmsen had committed any crime and that exercising one’s constitutional rights should not be used as evidence against them in a criminal prosecution. The State appealed to the Illinois Supreme Court and the Supreme Court overturned the ruling of the Appellate Court and ruled that the deputy had reasonable suspicion to make the stop and upheld the conviction of Timmsen. In ruling the way it did, the court looked at the totality of the circumstances, mainly that the maneuver occurred at 1:15 a.m. on a Saturday morning approximately 50 feet from a checkpoint roadblock. The court found that this indicated a high degree of probability that the driver was operating his vehicle under the influence of alcohol and by attempting to avoid detection by the police, Timpson had created reasonable suspicion and probable cause to pull him over.  Timmsen had argued that the police had no right to pull him over because he was merely minding his own business. But the Supreme Court did not agree with him. The court found that even though he made a legal maneuver, it raised the suspicion that he was attempting to avoid contact with the police. The court found that there was nothing about the facts of the case to suggest that he was merely going about his own business. The court found that his U-turn was just as suspicious and evasive as running away from a police officer in a high-crime area. As a matter of fact, the majority found that Timmsen was doing the opposite of going about his own business.

The lone dissent was by Judge Anne M. Burke. Judge Burke argue that the 4th Amendment gives individuals the right to ignore a police officer if that police officer has no reason to believe that they had done anything wrong. She believes that the roadblock in the early morning hours was irrelevant to the case. Judge Burke held that you cannot be convicted of doing something that you have a right to do. Since you have a right to avoid the police and not cooperate with them, how can that be a sufficient basis for pulling over a motorist?

This case is troubling precisely for the reasons stated by Judge Burke in her dissent. Timmsen was arrested because he was exercising his constitutional rights. It’s important to keep in mind that when it comes to the constitution, the ends should not justify the means. Sure, Timmsen was driving a vehicle without a license and had marijuana in his vehicle. But the police did not discover this until after he was pulled over. But the reason he was pulled over was because he tried to avoid contact with the police. The 4th Amendment grants citizens the right to not talk to the police when they don’t want to. So what this case does is impose criminal penalties upon a citizen who is exercising a constitutional right. This is troubling and should not be allowed. Why have a constitutional right if citizens know that exercising their constitutional right could put them in legal jeopardy? I suppose that this defeats the purpose of giving people that constitutional right. We should cherish the rights afforded to us by our constitution. By imposing criminal penalties upon people who exercise those constitutional rights, we are watering down and dismissing the importance of those constitutional rights. People should not be afraid to exercise their constitutional rights.

Possession of Controlled SubstanceHow Illinois Classifies Illegal Drugs

In Illinois, it is against the law to possess any amount of cocaine.   Cocaine is a powerful stimulant that is derived from the South American coca plant.  Illinois classifies illegal drugs according to schedules.  The penalties for possession of drugs vary based on what schedule those drugs are in.  Here’s a breakdown of the drug schedules in Illinois:

Schedule I – This is for the common street drugs like cocaine, heroin, marijuana, crack.  These are drugs that have a high potential for abuse, no accepted medical use, or are unsafe for medical use even under medical supervision.

Controlled SubstanceWhat is Possession of a Controlled Substance?

In Illinois it is illegal to be in the possession of illegal drugs.  Cases like this are commonly referred to as a PCS.  Illinois classifies drugs according to Schedules from Class 1  to Class 5.  Which class a particular drug is placed depends on who addictive the drug is and whether it has any medical value. Generally, the common street drugs like Cocaine, Crack, Heroin, Ecstasy and Marijuana are considered highly addictive and have no medical value.  Those drugs are classified as Class 1 drugs and the Possession of Schedule 1 drugs is treated more severely than the possession of lower class drugs.  People that are charged with the Possession of Schedule 2 to 5 drugs are usually facing Prescription Drug Fraud charges.  Even when it comes to the Possession of Schedule 1 drugs, the Possession of Marijuana is treated differently than the Possession of other Schedule 1 drugs.  What you can be charged with can also depend on your criminal background, the specific facts of the case and the way the arrest happened.  That is why that it is very important that you speak to an experienced criminal defense attorney who can evaluate your case from the beginning so he knows how to begin putting together an effective defense.

What Are the Penalties for Possession of a Controlled Substance?

Ioakimidis_100x100My client’s felony drug case was dismissed after a finding of no probable cause at the preliminary hearing at the Cook County Court Brach 50 (Grand & Central). My client is an armed security guard and a criminal conviction would have had serious consequences on his life, his FOID card and his Conceal and Carry License. He was pulled over for a traffic violation but was driving on a suspended driver’s license. He was arrested and the police found two zip lock baggies of marijuana and one pill of Ecstacy on him. 

The Cook County States Attorney dismissed the marijuana charges per the recent change in policy of not prosecuting  marijuana possession cases for under 30 grams in most cases. However, the police officer was present and the State proceeded to preliminary hearing on the Ecstasy pill (.03 grams). Wisely, the Judge did not see fit that the felony drug case proceed any further. In other words, the Cook County State”s Attorneys Office is continuing to prosecute low-level drug possession cases. 

Not prosecuting marijuana possession cases but prosecuting other drug possession cases is a policy that can be surely replaced by a better one. Wouldn’t be better to treat people who are arrested for drug possession in a non-criminal matter? For possession of marijuana, the Cook County State’s Attorney has answered that question in the affirmative. I believe justice will be better served if the States Attorney’s policy of not prosecuting marijuana cases be extended to all low-level drug possession cases. I’m sure there is a better way to treat people with addiction issues than to spend valuable and scarce resources trying to brand them as criminals.

ImmigrationOn 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 arguments.

FACTS

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 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.  The consequences of his possession of a sock had consequences that Mellouli never dreamed of.  If Mellouli loses, he could possibly never be able to get married to his U.S. Citizen fiance.

Drug ChargesI want to bring your 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 below 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.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients facing drug charges.  If you have a drug case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.

In an 8 to 1 rulDUIing, the United States Supreme Court ruled that police should try to obtain a warrant from a Judge before forcing a citizen to submit to a blood test when it comes to a DUI.  This is a case that could have national implications that go beyond just DUI cases.  The case involved Tyler McNeeley, who was pulled over by a Missouri police officer who suspected that he had been operating his vehicle while under the influence of alcohol.  McNeeley, who had two previous DUI cases, refused to submit to a breath test when the request was made by the arresting police officer.  The Missouri officer, who was a Missouri State Trooper, took McNeeley to a local hospital, instead of first obtaining a warrant from a judge, and had McNeeley’s blood drawn.  The blood draw indicated that McNeeley blood alcohol level was nearly twice the legal limit.  The Missouri Supreme Court had previously ruled that the blood draw violated the Missouri State Constitution.  On Wednesday, 8 Justices on the United States Supreme Court found that there was no sufficient reason to dispense with the requirement that police first obtain a warrant before having a blood sample forcibly drawn from a driver’s arm.  The Court seemed to leave open the possibility that the police could draw blood without a warrant if a true emergency was present. But absent a showing of a true emergency, either the driver will consent or the police need to get a warrant.  In Illinois a refusal to submit to a blood alcohol test will subject the driver to a one year suspension of their driver’s license.

This decision leaves unanswered what affect this will have on state laws which have been enacted to deal with driver’s who are pulled over for suspicion of driving under the influence of cannabis.  The only way to determine whether they are high on cannabis is to take a blood test.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients in DUI and Cannabis cases.  If you have a DUI or Cannabis case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.