Articles Posted in Drug Crimes

pipeThe 4th amendment of the U. S. Consitution protects us from unreasonable searches and arrests. Searches and arrests without a warrant or probable cause are unconstitutional.  Evidence obtained by the police by an illegal search or arrest is not admissible in Court. Since no two people are alike and our perceptions of the world differ from person to person, the meaning of what constitutes a reasonable search or arrest varies from judge to judge.

In a recent Illinois appellate case, the defendant appealed his criminal conviction. The jury convicted the defendant of possessing a controlled substance and possessing drug paraphernalia. The case arose in the middle of the night in July 2013 when the defendant was walking down the street. An officer was sent to respond to a possible burglary and saw him. He got out of his car and asked whether the defendant had seen anybody running. The defendant said he’d seen nothing and claimed he’d left a friend’s house. The officer knew the friend, who trafficked narcotics.

The defendant put his hands in his pockets during the conversation. The officer told him to take out his hands. The defendant obeyed but then put his hands back into his pockets. Again, the officer asked him to take his hands out of his pockets. They repeated this behavior a few times during the conversation, and the defendant finally asked the officer why he had to take his hands out of his pockets. The officer told him he was going to pat him down for weapons and then conducted a frisk search.

While frisking the defendant, the officer felt a smoking pipe in the defendant’s pockets. He knew what it was because he had experience with narcotics investigation. He arrested the defendant for possession of drug paraphernalia in his pocket. He took the pipe out and tried to go into the defendant’s other pocket, but the defendant started struggling.

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chapelIn a recent Illinois appellate decision, the defendant appealed after being convicted of aggravated participation in methamphetamine manufacturing. He was charged with seven counts related to methamphetamine manufacturing. At trial, the judge asked the jurors not to conduct independent research on the case. A prosecutor told the jury she anticipated testimony from a police officer that the offenses happened within 1,000 feet from a church.

The prosecution put forward a police officer as a witness. He testified he was trying to serve a warrant on someone else in a nearby apartment building when he smelled a chemical odor that he thought might be connected to methamphetamine manufacturing. The church was nearby. The officer testified about how the defendant became a suspect and what they found when searching the premises. The house where the materials for manufacturing meth were found was right behind the church.

A sheriff testified about how close the courthouse was to the area where the manufacturing happened, and the judge again reminded the jury they shouldn’t do independent research. The sheriff said he was sent to help the police department with what they thought was a meth manufacturing lab.

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cannabisA recent Illinois appeal involved a Domestic Battery. The defendant was acquitted of Aggravated Domestic Battery and unlawfully interfering with a report of Domestic Violence, but he was convicted of Domestic Battery under 720 ILCS 5/12-3.2(a)(1). The trial court denied his post-trial motion, and he was sentenced to 30 months in prison. He appealed on the grounds that the court had made a mistake in permitting the prosecution to impeach him with his felony Cannabis conviction.

The case arose from allegations that the defendant knowingly caused harm to a woman by choking her after previously being convicted of a Domestic Battery. In addition to applying pressure to her throat, it was alleged that he stopped her normal breathing or blood circulation, and he knowingly stopped her from calling the police by taking her phone.

Before trial, the defendant tried to stop the State from impeaching him by showing he had a prior Domestic Battery conviction and a felony Marijuana conviction. At the hearing, the prosecution argued that the Marijuana conviction could be admitted because the charge was not similar to the defendant’s current charges, and it had impeachment value because it was a crime against society.

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parking-space-1441053-1-300x225In a recent Illinois appellate case, the defendant was convicted of unlawful delivery of a controlled substance under 720 ILCS 570/401(a)(1)(D). He appealed on the grounds that the prosecution hadn’t proven beyond a reasonable doubt that he knowingly participated in the drug transaction.

The detective testified that he’d investigated narcotics and money laundering cases in the past. Most of his cases involved surveillance. Often traffickers conduct heat runs to determine if police are watching. A heat run is an effort to take an out-of-the-way route to go to the transaction destination, such as making multiple turns or U-turns and going down back alleys.

On the day in question, the detective found that a prior investigation target was stopped with more than $100,000 on him. The detective went to the address where the car was registered. There they saw a car registered to the defendant at a Texas address. They saw a woman and boy leave the house and drive away to breakfast at a restaurant. When they came back to the address the defendant’s car was gone. It returned in the afternoon, with the defendant driving.

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Veterans CourtThe recent wars in Iraq and Afghanistan have seen a dramatic rise in the number of mental health and substance abuse issues involving military veterans returning from serving in those wars.  Some of these soldiers are returning home with mental health issues and are using drugs to deal with the mental health issues which such wars have caused.  Those issues have spilled into the criminal justice system when these military veterans are getting arrested for crimes caused by substance abuse and mental health issues arising out of their military service.  In an effort to address the specific needs of returning veterans, the Illinois Legislature passed legislation in 2009 establishing Veterans Courts in Illinois.  The 2009 legislation did not require that counties establish such courts.  Nevertheless, Cook County and Lake County did establish such courts. Veterans Courts are specific courts which are designed to steer military veterans out of the criminal punishment aspect of the court system and towards the treatment aspect of the court system.  Specific courts have been established at 26th and California, Skokie, Rolling Meadows, Maywood, Bridgeview and Markham. The Veterans Courts in Cook County have been very successful and have been used as a model by court systems throughout the United States to help them establish their own Veterans Courts.  The Illinois Legislature recently passed legislation requiring that each county in Illinois establish such a court by January 1, 2018.  In anticipation of this new law taking effect, counties throughout Illinois are beginning to make plans to establish these courts.  Kane County officials are aware of the new law and are beginning to make plans to start the process of establishing these courts.

In order for a veteran to be eligible for Veterans Court in Cook County, enrollment has to be agreed to by the Court, Prosecutor and the Defendant.  The crime that the veteran is charged with cannot be a crime of violence. The veteran will not be eligible unless they have demonstrated a willingness to undergo treatment in the program.  They will also be ineligible if they have been convicted of a crime of violence within the past 10 years or if they have been discharged from a similar program within the past 3 years.

Lake County’s Veterans Court is similar with minor changes to the eligibility requirements.  To be eligible for Veterans Court in Lake County the veteran must have been honorably discharged from the military, must have a service related disability or currently be in the military, must be charged with a felony or misdemeanor in which probation or supervision is available, and must be willing to participate in the program before and after they enter the program.  They prefer that the veteran be eligible for VA benefits but is not a requirement.  For any crime involving a crime against an individual, the victim must agree to allowing the veteran to enter such a program.

MarijuanaOn July 27 we reported that the DEA was considering reclassifying marijuana from a Class 1 Drug to something less.  Advocates for the legalization of marijuana were looking at this possibility as an important step to the possible legalization of marijuana.  On Wednesday the DEA made it’s decision public, and the decision did not make marijuana legalization advocates happy.  The DEA decided to keep marijuana in Class 1, which is the most serious classification of illegal drugs.  But what is especially troubling was the reason given by the DEA for denying the application to remove marijuana from the Class 1 category.  The DEA found that there is no accepted medical benefit for the use of marijuana and that it is highly vulnerable to abuse.  The DEA found that marijuana is not a safe and effective medicine.  This decision flies in the face of 42 states, and the District of Columbia, which allow for some form of medical marijuana use.

Today, sources are reporting that as early as today, the Obama Administration will issue new regulations which will make it easier for researchers to obtain the marijuana needed to conduct medical research. Currently, marijuana grown at the University of Mississippi has been the only source of medical marijuana available to medical researchers.  Currently, in order to obtain permission from the federal government to grow marijuana for medical research purposes, the process is so restrictive that it could take years to obtain it and is virtually impossible to get.  The new regulations will make it much easier to obtain permission to grow a supply of research grade marijuana.  The details are unclear but people who have seen the regulations believe that these changes could signal a major step towards the eventual legalization of marijuana.

Recently, Illinois has joined a growing group of states that are moving towards a more accepting treatment of marijuana.  Illinois allows for the use of Medical Marijuana.  The Illinois Legislature has accepted that there are medical benefits to the use of marijuana and they have set up a highly regulated process by which people who suffer from certain medical conditions can legally buy, possess and use medical marijuana as long as they have a valid prescription and obtain permission from the State of Illinois.  While the Illinois medical marijuana program is one of the most strict in the country, it is the product of a long and difficult fight in Springfield that took many twists and turns.

MarijuanaOn Friday, Illinois Governor Bruce Rauner signed legislation into law which makes possession of small amounts of marijuana a civil matter and not a criminal matter.  This new law makes Illinois the 17th state to decriminalize the possession of small amounts of marijuana.  This means that if you are caught with the possession of 10 grams of marijuana or less, you will be issued a ticket charging you with a civil offense which carries a fine of up to $200.  However, individual towns are allowed to add additional penalties to the tickets, such as drug treatment or classes.  The new law also makes two more changes to Illinois law.  First, anyone charged under this new law will have the case expunged from their record automatically 6 months after the offense occurs. Expungements for these citations will happen automatically twice a year, January 1 and July 1.  This was added to the statute to make sure that such a case would not limit the ability of people, especially young people, to be able to obtain a job. The second change has to do with DUI’s. Under the old law, Illinois had a “no tolerance” policy when it came to driving a motor vehicle with the presence of any trace of marijuana in their blood system.Under the old law, if you had ingested marijuana a few weeks ago and were driving a motor vehicle, you could be charged with a DUI even if there were no signs of impairment.  Under the new law you cannot be charged with a DUI unless you have 5 nano-grams of THC (the active ingredient of marijuana) in your blood, or 10 nano-grams or more in your saliva.

This new law is pretty similar to a measure enacted in Chicago in 2012.  This measure allows police officers to issue tickets for possession of less than 15 grams of marijuana that carries fines of $250 to $500. The new law would not change what is happening in Chicago but would apply to any towns in Illinois that have no such measure so that there’s some uniformity in Illinois.

Similar legislation was passed last year.  But when it reached Rauner’s desk, he vetoed the legislation because he believed that it allowed for the possession of too much marijuana and the fines were too low. The legislature amended the legislation to satisfy Governor Rauner’s objections and he signed the bill on Friday. This measure goes into immediate effect in Illinois.

marijuana-Schedule 1The DEA has announced that they are considering reclassifying Marijuana from a Schedule 1 Drug to something less.  The implications could have enormous consequences which could drastically change the way we deal with marijuana in the criminal justice system.  Under current federal law, Marijuana is classified as a Schedule 1 Drug.  This is the highest classification for the ranking of drugs.  This classification includes Heroin and Cocaine.  The current classification of marijuana makes it illegal under federal law to prescribe marijuana for medical purposes since Class 1 drugs have no current accepted medical use.  24 states currently permit medical marijuana in violation of federal law.  If the federal government reclassified marijuana to something less than a Schedule 1 drug, this would allow researchers to work with the plant to explore possible medical uses.  Since Marijuana is classified a Schedule 1 drug, researches can only legally obtain the plant through a single federal government garden that has strict restrictions on the ability to obtain the plant for research purposes.  Marijuana was added to schedule 1 in 1970. The DEA regularly considers reclassifying drugs.  They have previously considered reclassifying marijuana in the past and have always refused.  In a letter to Congress, the DEA informed them that they will be conducting a review of marijuana but did not include a date by which they will decide.  It is expected that a decision will be coming down sometime this summer.  There is a growing belief among medical professionals that marijuana may have medical benefits that could provide a viable alternative to prescription drugs.  The belief is not universal but there is a growing consensus that the medical benefits do deserve to be explored and that research needs to be conducted.  Unlike prescription medication, marijuana comes in different strains and potency which could affect different conditions in unique ways.  Classifying marijuana a Schedule 1 drug has made it very difficult for medical research to conduct the necessary research to explore any possible benefits.

It seems like the political climate is moving towards easing the prohibition on marijuana.  In addition to the legalization of medical marijuana, a couple of months ago, the Republican led House of Representatives passed a measure which would allow VA doctors to legally recommend, and prescribe, medical marijuana to veterans, the same way doctors can in the 24 states that have allowed for medical marijuana.  The Senate has passed a similar measure, but since there’s slight differences in the legislation, the bills need to be reconciled. It is believed that President Obama would sign such legislation if it were sent to his desk.  The fact that Congress would pass such legislation is further proof of the momentum that has been building towards becoming more tolerant and accepting of marijuana.

While nobody thinks that marijuana is going to be legalized anytime soon, reclassifying marijuana from a Schedule 1 drug to something less is clearly a necessary first step to the beginning of this process.  In preparation for the possible legalization of marijuana in the future, people are already looking at the possible financial benefits that could arise.  According to a recent report from NerdWallet, states could stand to gain $3.1 billion per year in tax revenue if marijuana were to be legalized.  The Federal Government is seen as the biggest obstacle to legalizing marijuana.  The Federal Government classifying marijuana a Schedule 1 drug means that businesses engaging in the marijuana business cannot take tax deductions like normal business can.  In addition, financial institutions are unwilling to do business with business that do business with marijuana out of fear of criminal prosecution.  For that reason, reclassifying marijuana to something other than a Schedule 1 drug may be the beginning of a movement that could eventually lead to legalizing marijuana.

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.