Chicago Criminal Defense Lawyers Blog

I 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 licen...

In an interesting story, a Massachusetts woman was arrested by the police and charged with illegal wiretapping after she was caught secretly recording her own arrest. Under Massachusetts law, it is illegal to record the police unless if it’s in a public place and only if the police know of the recording.  In this case the police were called to a building for a tenant who was loud and causing a disturbance. The police encountered this woman and arrested her. As they were arresting her they discovered that she had placed her phone in her purse and it was recording the arrest.  After the cell phone was discovered the woman admitted that she placed it in her purse to record her arrest.  In 2011 a court in Massachusetts who filmed someone else’s arrest in public had her constitutional rights violated because it was obvious to the police that they were being filmed. Before you criticize Massachusetts, Illinois had a similar law on the books until March 20, 2014, when the Illinois Supreme ...

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 executio...

This 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...

For the first time ever, federal prosecutors have disclosed that they intend to use evidence obtained through a wireless wiretap of a criminal defendant that they intend to use at trial. The disclosure of such evidence allows the attorneys for the defendant to file a motion in court to challenge the introduction of the evidence at trial.  This sets up a potential legal challenge to wireless wiretaps that could make it all the way up to the United States Supreme Court.  The case involves Jamshid Muhtorov who is charged with providing material support to the Islamic Jihad Union, a terrorist organization based in Uzbekistan.  Muhtorov is accused of travelling abroad and joined this organization.  How the disclosure came to be public is interesting.  In June, Solicitor General Donald Verrilli, discovered that defendants in criminal cases had not been informed that communications they had were intercepted by authorities.  This was a big problem because last year, in a case before the Uni...

Yesterday, the Illinois Supreme Court issued one of the most important decisions to come down from this court in a long time.  The Illinois Supreme Court ruled that the main part of the Illinois gun law, also known as the Aggravated Unlawful Use of a Weapon statute, is unconstitutional and can no longer be enforced by judges, prosecutors and police officers.  Yet this news has gone largely unreported by the media.  This is a major story.  The implications are truly significant.  For one thing, for defendants currently facing criminal charges for Aggravated UUW, who had a valid FOID card, this means that their cases will be dismissed. This decision opens the door to litigation in which arguments will be made by criminal defendants that their cases should be dismissed even if they did not have an FOID card.  My reading of this case makes me think that if you have a valid FOID card you can legally conceal and carry a firearm in public.  If my reading of the case is correct, as of yeste...

In an 8 to 1 ruling, 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 t...

In the case of Moore v. Madigan, a three judge panel of the Seventh Circuit Court of Appeals ruled unconstitutional the Illinois gun law which prohibits ordinary citizens from carrying firearms in public. The panel reasoned that the Second Amendment of the United States Constitution allows citizens to carry a firearm in public for self defense, and thus, enjoined the State of Illinois from enforcing the current Illinois gun law. Although the panel made its decision on December 11, 2012, it delayed enforcement until June 9, 2013 for the Illinois State Legislature to draft a new gun law that allows for reasonable restrictions.  The right to carry a firearm in public is not absolute – the State of Illinois and other municipalities can pass laws that place reasonable restrictions on who can own a firearm and at what places firearms are allowed.So what are reasonable restrictions? The panel noted that obvious restrictions, such as not allowing the mentally ill and felons to carry gu...

In a 5 to 4 decision, strictly along ideological lines, the United States Supreme Court threw out a challenge to the FISA law which allows for warrant-less wiretapping by the government of our phone calls.  On January 2, 2013, we reported that the United States Senate agreed to extend this law for another 4 years.  The law specifically allows the United States government to intercept international phone calls without a warrant.  Today the Supreme Court ruled that U.S. based journalists, attorneys and human rights groups lack the standing to challenge this law since they cannot show that they had suffered any injury as a result of the law.  Warrant-less wiretapping was started by President George W. Bush after the terrorist attacks on September 11, 2011.  The program was ended in 2007 but the next year Congress reinstated the warrant-less wiretapping program by enacting the FISA law.  At the beginning of this year Congress extended the law for ...

This week the United States Supreme Court heard oral arguments on a Missouri DUI case which raises some interesting issues.  Two years ago, in the early morning hours, Tyler McNeely was pulled over by a Missouri State Trooper.  The Officer suspected that McNeely had been drinking so he performed the usual field sobriety tests and requested that McNeely take a blood alcohol test.  McNeely refused so the Officer placed handcuffs on McNeely, placed him in the back of his squad car, took him to a local hospital and had a nurse draw blood from McNeely while McNeely was restrained.  The blood draw revealed that McNeely’s blood alcohol level was nearly two times the legal limit and McNeely was charged with Driving Under the Influence (DUI).  At trial McNeely challenged the blood draw on the basis that it violated his Fourth Amendment right to be free from unreasonable searches and seizures.  The trial court sided with McNeely and the state appealed to the Miss...