Articles Posted in Burglary/Theft/Retail Theft

522344117-1-300x200In a recent Illinois appellate case, the court considered a burglary conviction. The defendant was sentenced to an eight-year Class X sentence due to his criminal record. On appeal, he argued that he wasn’t proven guilty beyond a reasonable doubt because the prosecution hadn’t established that he was not allowed to be in the building or that he planned to steal.

The case arose when a university employee who worked in the telephone operating department came to work early one morning. She worked in a building that had telecommunications equipment and was only accessible by using a key or key card. She used her key card to go inside the building, and only two other employees were there. Almost two hours after arriving, she saw on the video security monitor that the defendant was in the basement hallway. She knew he wasn’t an employee. He was checking to see if doorknobs were open and looking at equipment in boxes.

The employee asked a coworker to call the police, and she kept watching the monitor. The defendant disappeared from the monitor and then appeared on the other side of the divider from the employee. The employee told him to leave and asked what he was doing there. He said he was just looking. However, surveillance later showed that he’d been in the garage looking into the windows of different cars.

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social-imageKim Foxx was sworn in as the new Cook County State’s Attorney last week. Yesterday, she made her first major announcement.  She announced that her office will not be charging Retail Theft cases as felonies unless the amount that is involved is more than $1,000 or if the defendant does not have anything less than 10 prior Felony Retail Theft convictions.   This announcement represents a dramatic shift in policy at the Cook County State’s Attorney’s office.  Under current state law, you can be charged with a Class 4 Felony Retail Theft if the amount of the goods involved is more than $300 or if you have one prior felony retail theft conviction.  If you have one prior felony conviction you can be charged with a felony even if the amount is under $300.  If the amount is over $500, you can be charged with a class 3 felony.  Foxx’s announcement drastically raises the bar for what constitutes a Felony Retail Theft in Cook County.  Anita Alvarez, Foxx’s predecessor, had been trying to get the State Legislature to raise the bar for charging a felony up to $1,000 for many years now.  However, the state legislature has resisted.  As a result, the statewide threshold for charging someone with a felony retail theft, as opposed to a misdemeanor, remains at $300.  Compared to the other states around Illinois, the Illinois threshold is very low.  In Wisconsin the threshold is $500.  In Indiana, the threshold is $750.

Foxx’s announcement follows news from last week that Cook County is actively looking at ways of limiting the population at Cook County Jail. There is an understanding that the cost of housing inmates at the Cook County Jail is putting significant stress upon the limited budget resources of Cook County.  Last year, approximately 76 defendants who had been charged with Felony Retail Theft, spent more time in jail than what they were eventually sentenced to.  The total amount of the excess days served was 4,159.  The extra cost to the Cook County taxpayers was about $675,000.  Almost 80% of all Felony Retail Theft cases charged in Illinois between 2010 and 2012 were for less than $1,000.  As of today, about 101 people are housed at Cook County Jail on Felony Retail Theft charges.  The majority of the people that are locked up in Cook County Jail are there because they simply lack the financial resources to post bond.  As a result, Cook County taxpayers are footing the bill for their incarceration in the jail.

It remains to be seen what the impact of this announcement will be on retail theft cases. Looking at the reader comments in the local papers today they clearly indicate that this is a controversial decision.  What’s disturbing is that some of the comments are clearly racist in nature.  Some people will wonder whether the announcement will discourage storekeepers from calling the police if they know that the person they caught stealing from their store will not be charged with a felony. Others are going to argue that this announcement will just encourage people to steal because they know that they will not be facing felonies in Cook County. While prosecutors have always had the discretion to decide when and what to charge someone with, some people will argue that this is more than just an exercise of discretion.  It can be argued that the prosecutor is doing an end run around the will of the State Legislature.  The same prosecutor’s office that has been unsuccessful in lobbying the legislature to change the law, changes it on its own by exercising its discretion without legislative approval.  I would not be surprised to see someone charged with a Felony Retail Theft outside of Cook County argue an Equal Protection violation because the law is not being applied uniformly throughout the State of Illinois.

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.

StingrayIn 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.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients facing criminal charges.  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.

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.

As we wake up this morning to news of a botched execution in Oklahoma last night, maybe we can start a discussion over whether the death penalty works and whether we need to rethink whether we should execute inmates.  The Oklahoma execution in question involves Clayton Lockett who was convicted in 2000 of first degree murder, first degree rape, kidnapping and robbery as a result of a 1999 crime spree in Oklahoma.   Last night the State of Oklahoma executed Clayton Lockett.  It appears as if something went wrong during the execution process resulting in Lockett convulsing in pain and muttering words indicating he was alive and suffering.  When it became obvious that something was wrong, the prison officials closed the curtain and continued with the execution.  A while later the spectators were informed that Lockett had died of a heart attack. Now Lockett may not be the most sympathetic example of what is wrong with the death penalty but they way this execution was carried out should spur a discussion about whether we still need the Death Penalty in this country.  The details of Lockett’s crimes are pretty horrific.  An argument can be made that Lockett’s suffering was nothing compared to the suffering of his victims, especially the woman that was murdered when she was buried alive by Lockett and his friends.  But what if innocent people are on death row and innocent people have been executed?

This week, a group of researchers from the University of Michigan, released a study which should concern everyone about whether innocent people are being executed.  The authors of the study reviewed the 7,482 death sentences imposed from 1973 to 2004.  Of those death sentences, 117 of those sentences have been reversed because the defendants were exonerated.  That number represents 1.6 percent of those sentenced to death from 1973 to 2004 were wrongfully convicted.  The authors then take that number and apply a formula called “Survival Analysis” which is a formula used in medicine to determine the effectiveness of new medical treatments.  Based on that analysis, the researches of this study conclude that 4.1 percent of those sentenced to death from 1973 to 2004 were wrongfully convicted.  That would be 200 more inmates than the 117 that have been officially exonerated.  The authors then reach several conclusions based on these figures that cannot be proven. For instance, they argue that one reason more inmates are not exonerated is that many of them win appeals which end up reducing their death sentence to life in prison which means that the effort to exonerate them slows down. While that may or may not be true there are some things about this article which should cause great concern to everyone.  Even if you assume that their 4.1% figure is faulty, then the 1.6 percent figure of inmates that have actually been exonerated is alarming in and of itself. While we cannot solve this issue in this article, maybe we can spur a debate which would lead to a more equitable and just way of dealing with the death penalty.

James Dimeas is an award winning criminal defense attorney and author with more than 24 years of experience aggressively representing his clients in criminal cases, including murder 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.

Robbery ChargesThis week the United States Supreme Court issued a ruling in a case which expands the ability of the police to search a residence even though they had originally been denied consent. The case started when police arrived at the Los Angeles home of Walter Fernandez for a suspected Robbery.  When the police first arrived at Fernandez’s home, they asked for his consent to enter and search and he did not grant them consent to search.  The police then determined that he had committed a domestic battery on his girlfriend and arrested him.  An hour later, while Fernandez was under arrest at the police station, the police returned to his residence and obtained consent to search from his girlfriend.  When they searched his residence, they recovered weapons and other evidence which connected him to the Robbery.  He was eventually convicted of Robbery, gun and Domestic Battery charges and sentenced to 14 years in prison.  He appealed his conviction arguing that the police did not have the right to search his residence since he had denied them consent.

The question facing the Supreme Court was whether the police had to obtain a warrant to search his residence in light of his denial of a consent to search?  In a 6-3 decision the Supreme Court ruled that a warrant was not required and upheld the search of the home and the subsequent conviction of Fernandez.  In 2006, in Georgia v. Randolph, the Supreme Court ruled that the objection of a consent to search of one occupant was valid to bar a search without a warrant even if one occupant consented so long as the occupant denying consent remained at the location.  The Court held that since Fernandez was not present when the police returned, his denial was no longer in effect and when his girlfriend consented, that was all the police needed.  A notable development in this case is that Justice Steven Breyer, a noted liberal on the Court, joined the majority conservative Justices in limiting the 4th Amendment’s prohibition against unreasonable searches and seizures.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients against robbery, and weapons charges.  If you have a robbery or weapons 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.

Last week the United States Supreme Court considered a case which will decide whether a federal judge has the authority to indefinitely stay a criminal defendant’s appeal pending a determination that the inmate is mentally competent to assist their attorney in the appeal.  A defendant appealing a death sentence in federal court has a legal right to an attorney but there has never been a determination that the defendant has to be mentally fit to pursue that appeal.  This case involves Sean Carter, who was convicted in Ohio of the murder of his grandmother after he had been released from prison in 1997 and was sentenced to death.  The other case involves Ernest Gonzalez, who was convicted of first degree murder during a burglary in Arizona in 1999 and sentenced to death. The federal judge handling Carter’s appeal stayed the appeal until he was mentally competent but the Court of Appeals changed the ruling to allow the part of the appeal that did not require his cooperation to proceed.  In Gonzalez’s case the trial judge ruled that his appeal would not be delayed while the Court of Appeals stayed the appeal until he was ruled mentally competent.  The United States Supreme Court heard oral arguments on these cases, which involve a common question of whether a defendant must be mentally competent while an appeal is pursued on their behalf.  Court observers who were at the oral arguments seem to think that the majority of the Court is leaning towards ruling against the proposition that an inmate has to be mentally competent. The Court is expected to issue its ruling later this year.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients facing criminal charges.  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.

imagesqtbnANd9GcQqR4Dz_uJGafmoHScPDeNzYZcWF8nOZr5yYXTErMMwySXKQFF9The Cook County State’s Attorney Deferred Prosecution Program is a diversion program for adult felony defendants without a prior felony conviction that have been arrested for non-violent crimes. Participation to the program is at the sole discretion of the State’s attorney.

The program placed the defendant into a 12 month intensive  program. Upon completion of the program, the State will then dismiss the case. The Defendant can then file to have the arrest record expunged upon dismissal. In Cook County, due to delays, it takes 6  to 12 months to have the arrest record expunged after the Petition to Expunge is filed.

However, only probationable  offences of  Theft, Retail Theft, Forgery, Possession of a Stolen Motor Vehicle, Burglary, Possession  of Burglary Tools, Possession of Cannabis, Possession of a Controlled Substance, and Possession of Methamphetamine are eligible for the program.

The Chicago Police Department now posts online the picture and the approximate address of the people who were arrested in Chicago for prostitution related charges – the pictures are removed 30 days after the arrest. See: In the last 30 days, 53 people have been arrested for paying or being paid for “love.” The ancient Greeks gave the definition of love four meanings to capture the different “love” relationships we have among us. They are: 1) Agápe; 2) Phillia; 3) Storge and 4) Eros.

Agape refers to true love, such as the love a husband has for his wife. Phillia refers to the love one has for a friend. Storge refers to the love of affections. And last but not least, Eros means erotic or sensual love after the Greek God Eros of love – thus the term, erotic.

Almost all of the folks posted online were looking for the God Eros and could only find him if they paid for it – an unfortunate situation. To think of it, not something you would put past a Greek God. The remainder of those arrested were the few prostitutes who were willing to go along with the journey. In essence, almost all of these guys were trying to fulfill an undeniable basic human need. Unfortunately, as a society, we have decided to criminalize their behavior and threaten them with prison time. Further, upon arrest, the police will impound the given person’s car if it was used in the process and the City will return it only if fees in excess of $1,000.00 are paid. If the fees are not paid to the City, it will junk it. If there are lien holder(s) on the car, they may or may not get proper notice. The public humiliation is the icing on the cake.