The Seventh Circuit Court of Appeal held that Illinois Eavesdropping Act which makes it a felony to record a police officer in public unless all parties to the conversation consent to the audiotaping “likely violates” he First Amendment and granted a preliminary injunction against Cook County State’s Attorney preventing them from enforcing the act.

The Illinois eavesdropping statute makes it a felony to record any voice without the permission of everyone being recorded, If the person being recorded is a police officer performing his/her duty it becomes a first degree felony punishable with imprisonment up to fifteen years.

The ACLU challenged the Eavesdropping Act. As part of its “police accountability project” it wants to make audiovisual tapes of on duty police officers. The audiovisual tapes will include police officers who speak in public places in a manner audible to bystanders.

The First Amendment guarantees not only the right to express oneself by the use of audio or visual recordings but also the right to make such recordings. While people generally have a right to have private conversation, conversations held in public places in a manner that bystanders can hear them are not private.

The right of freedom of speech is not absolute. The Supreme Court has developed different criteria for legislative impingements on the right. To prevent the audiotaping of police officers in a public place by bystanders who can hear them it is necessary that the legislation be content neutral, be justified by an important public interest and be no more restricting than necessary to further that public interest. Privacy is an important public interest but when the conversation is held in public, with no effort to prevent them from being heard by bystanders, efforts to audiotape the conversations do not further any interest in privacy and when the legislation prohibits taping of all unconsented conversations any interest in privacy is not protected.

Therefore the Seventh Circuit overruled the trial court’s dismissal of the case and issued a temporary restraining order prohibiting the state attorney from enforcing the act against the ACLU. This should also prevent prosecution of citizens participating in activities similar to those of the ACLU.

Jimmy Brown was placed in a squad car on a firearms charge. He was then given his Miranda rights. When asked if he understood them. his response was “pshh.” He then answered several questions and asked for a “deal.” ¹ He was later given the Miranda warnings again as the station house. This time he responded, “Yeah.”

Prior to his trial Brown moved to suppress his answers to the questions. The District Court denied the motion and the Seventh Circuit Court of Appeals affirmed the conviction. It held that his request for a “deal” and his selective answering of questions was sufficient evidence that he voluntarily waived his Miranda rights.

To me, it sounds as if it is, at most, a conditional waiver. He may be saying, if you give me a “deal,” I will talk. For that matter is the continued questioning of Brown after he asks for a deal an agreement by the officer to give Brown a deal?

The Supreme Court reinstated an Illinois conviction for two counts of sexual assault. Irving L. Cross was tried on charges of kidnapping and sexual assault. The victim, though afraid, testified. Hardy was found not guilty of kidnapping and the jury hung on the sexual assault charge. The district attorney wanted to retry the case. Despite the victim’s alleged readiness to testify at the second trial she disappeared prior to the trial.

The victim’s mother, brother, and father told investigators that they did not know where she was. A week after talking to the mother, investigators had a second conversation with her. Apparently the victim had returned home between the two conversation but she ran away the day before the second interview. Investigators made numerous trips to both of her parents’ houses. They also checked at the Office of the Medical Examiner, her school, the Department of Public Aid, the jail, and local hospitals. They interviewed the parents of a former boy friend. All to know avail. Cross argued that investigators should have interviewed her current boy friend and her friends. They should have contacted the cosmetology school that had once attended and that she should have been subpoenaed before she disappeared. But the Supreme Court found that the district attorney made a good faith effort. Investigators can always do more work but all that is needed is a good faith effort.

At the retrial, the district attorney put into evidence the victim’s testimony at the prior trial. Under Crawford v. Washington an out of court testimonial statement can ony be placed into evidence if the the defendant has had a chance to cross examine the witness at an earlier stage in the proceedings and the witness is unavailable at the trial. Here there is no question the defendant had a chance to cross examine the victim at the first trial. The only question is whether the victim was unavailable at the second trial. The victim is considered unavailable if the prosecutor made a good faith effort to find the victim and procure testimony her for trial.

After Cross was convicted in the second trial he filed a writ of habeas corpus challenging the conviction and alleging that his right of confrontation had been violated under Crawford. The District Court denied the writ but the Seventh Circuit upheld it. The Supreme Court reversed, finding that the Cook County District Attorney’s office had made a good faith effort to procure the witness.

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) . . . imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Prior to defendant’s petition for habeas corpus the state courts of Illinois had turned down his claims of a violation of the Sixth Amendment right of confrontation. Since the state court decisions were reasonable the AEDPA requires the Federal courts to uphold the state’s decision.

The procedural rules regarding writs of habeas corpus found in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) are complicated and complying with them are often difficult. Many appellate decisions have been written regarding the rules. Yesterday, the Seventh Circuit Court of Appeals issued a decision interpreting several issues.

Reginald D. Purvis was convicted in the United States District Court for the Northern District of Illinois of conspiracy to sell crack cocaine. Since he had two prior state court convictions for drug offenses he was sentenced as a career offender.

After his appeals were denied he filed a Federal writ of habeas corpus challenging the conviction on incompetence of counsel grounds. He also filed a motion in state court to vacate one of the convictions used to make the Federal court action a career offender action. In his petition for a writ of habeas corpus he noted that he had the motion to vacate the prior conviction pending in the Illinois state courts.

While the petition was pending he moved to stay the action to allow him to amend it after the motion to vacate the prior was decided. The District court denied his motion to stay the petition and denied the petition itself. Shortly thereafter the motion to vacate the prior conviction was granted in state court. Purvis then filed a motion requesting permission to file a “second or successive” petition for habeas corpus on the grounds that he was no longer a career offender. The motion was also denied.

Purvis appealed the denial of the stay. The Seventh Circuit remanded the matter to the District Court with instructions to determine whether vacating the prior conviction was a “new fact” allowing the one year statute of limitations under the AEDPA to restart and to determine what effect Purvis’ informing the court that he had filed a motion to vacate the sentence had on the motion for a stay. The District Court again denied his petition.

Purvis again appealed to the Seventh Circuit. This time the Court granted his appeal. It held that his career offender claim was timely. He was under no obligation to move to vacate the prior until he was sentenced in the Federal case and he could allocate his time in such a way that he first dealt with the appeals and then filed his motion in state court to vacate the prior sentence.

The Court remarked that Purvis was faced with a Catch 22 situation. If he waited to file his habeas until his career offender issue was ripe (after the prior was vacated) his incompetence of counsel issue would no longer be timely. On the other hand if he filed his habeas prior to the granting of the motion to vacate the prior was granted he’d be in the position where he would be filing two petitions for habeas corpus and that would violate AEDPA. As a result the court held that the proper tactic was the “stay and abeyance” procedure As a result the court found that the District Court erred when it denied Purvis’ motion for a stay and it remanded the matter for resentencing.

Purvis won . . . right? Well maybe. He’s going to be retried on the state matter. It will not be a “prior” for career offender status since the conviction will be after the Federal crime occurred. However, Chief Judge Easterbrook pointed out in a concurring opinion that the trial judge can wait until after the state trial is over and then resentence Purvis above the guidelines to a sentence similar to what he received as a career offender to effectively show his criminal history.

Jeremy T. Greene a Wisconsin state inmate was fired from his job working in the prison library by John Doruff, the education director at the prison. The firing happened the day after Greene filed a complaint against Doruff. The alleged reason was that he stole a case from the library and that he highlighted a photocopy in the library. Furthermore he was confined to his cell for fourteen days and the photocopies were destroyed as punishment. After he showed that he checked out the case out from the library and that it was common for inmates to highlight library photocopies all charges were dismissed.

Greene sued Doruff and others. The Seventh Circuit reinstated his suit after the district court dismissed it. Greene alleged that he was fired for exercising his First Amendment freedom of speech. The District Court granted a motion for summary judgement for Doruff since Greene failed to show that “the challenged action would not have occurred but for the constitutionally protected conduct.”

But the Seventh Circuit held that the correct test in First Amendment tort cases is that the plaintiff only has to show that there was a “sufficient condition,” not “a but for” condition of the plaintiff’s injury. A sufficient condition is one that can cause something to happen but is not necessary for it to happen. For example, according to Seventh Circuit Judge Richard A. Posner who wrote the opinion dropping a match into a bucket of gasoline is a sufficient reason to start a fire but it is not a necessary reason since a fire can be started in any number of ways. A “but for” condition is necessary to create a particular condition that cannot be created any other way.

Thus the Seventh Circuit remanded the case to the District Court for reconsideration using a “sufficient cause” test.

Jose Alvarado-Tizoc, Antonio Duran, and Noe Duran, were convicted of conspiracy to distribute more than 400 grams of substances containing
a detectable amount of fentanyl and more than a kilogram of substances containing a detectable amount of heroin. Fentanyl is a prescription synthetic narcotic sold on the streets in a diluted form as a substitute for heroin.

Sentences ranged between 121 and 200 months.

The defendants obtained significant quantities of the drugs and wholesaled them to street vendors who diluted them to usable strengths by adding neutral substances.

One of the factors considered under the Federal Guidelines the in drug cases is the weight of the substances possessed or sold. When it came time to sentence the defendants the judge determined the weight of the drugs as sold on the street to determine the sentence. The defendants appealed claiming the weight of the Fentanyl that they sold to the street dealers was a lot less than the weight of the substances combined with the fillers sold on the street. The Seventh Circuit Court of Appeals agreed and remanded for resentencing.

Defendants won–right? Well not exactly.The court ruled that the sentencing judge could augment the sentence due to the additional potency of fentanyl as compared to heroin. I’m willing to bet that by the time of the resentencing the defendants get approximately the same sentence they got on they initial sentencing. It doesn’t pay for winning!

The Department of Justice is urging the Supreme Court to take up the Fourth Amendment issue of Global Positioning Systems (GPS). Various courts have ruled on the constitutionality of the use of GPS without getting a warrant and rulings have come down on both sides of the issue,

The Ninth and the Seventh Circuits have ruled it constitutional while the D. C. Circuit found it unconstitutional. Courts in New York, Massachusetts, Washington and Delaware have found it unconstitutional while courts in Ohio and Virginia have approved of the practice.

The Justice Department is challenging a D. C. Circuit opinion that overturned the conviction of Antoine Jones on cocaine trafficking charges after GPS evidence played a mayor role in his conviction. The DOJ argues that since law enforcement officers could have followed Jones as he traveled on the public roads he could not have had a legitimate expectation of privacy. The Fourth Amendment only applies to individuals who have an expectation of privacy that is recognized by society.

However his attorneys argue that using a GPS device on Jones’ Jeep Cherokee for over a month and reporting his whereabouts every seven seconds was a tremendous invasion of his privacy and is prohibited by the Fourth Amendment.

The Courts that have upheld warrantless GPS searches have cited the 1983 Supreme Court decision, United States v. Knotts in which the Supreme Court upheld the conviction of a man in a methamphetamine case after the wholesaler of necessary chemicals placed a beeper in a barrel of chemicals. The barrel was placed in a codefendant’s vehicle and followed by agents to the suspect’s residence.

Knotts has been cited by the courts in upholding warrantless GPS decisions. Most of the Courts have said that if it was constitutional to follow a car with a beeper, it is constitutional to keep track of a vehicle with a GPS deviced placed under the car’s carriage while it is either parked on the street or in the defendant’s driveway.

But while the lower courts do not have the power to reconsider Knotts the Supreme Court does. It is a decision that may have had some validity 30 years ago but with the technological advances in the last 30 years allowing greater and greater invasions into citizen’s privacy it is time for the Supreme Court to reconsider the decision.

Last year the Supreme Court held in Arizona v. Gant that law enforcement officials cannot search a vehicle, pursuant to a legal arrest when the suspect is out of the vehicle and is not within hand’s reach of the passenger compartment of the automobile.

Prior to the decision in Gant,Indianapolis police detained Dewayne Cartwright for driving a vehicle without a light illuminating the automobile license. He stopped his car in a grocery store parking lot but not in a legal spot. Cartwright was unable to produce a driver’s license and the police were unable to confirm the name he provided. They arrested him for driving without a license and providing a false name. After the arrest and following, then current, Seventh Circuit procedure, prior to Gant, the officers searched the car pursuant to a legal arrest. ¹ A gun was found in the back seat and Cartwright was charged with possession of a firearm by a convicted felon. He plead guilty, preserving his right to appeal the search of the vehicle, and he was sentenced to 84 months in prison.

Of course under Gant the search would be illegal. But the Seventh Circuit Court of Appeals upheld the search on inevitable discovery grounds. The Fourth Amendment does not ban all searches occurring without a search warrant. It states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . ” Thus it only prohibits “unreasonable” searches and seizures. As a result the courts have developed a number of exceptions to the warrant requirement. One of those exceptions allows for inventory searches of vehicles prior to their seizure. In order to protect the police from claims of theft of the contents of a vehicle, a city may develop procedures to permit the search and inventory of a vehicle prior to storing a towed vehicle. Indianapolis had a well developed written policy providing for inventory searches. It allowed a vehicle to be searched if the driver was driving without a license and no passenger in the car had a license and is capable of driving the car. Cartwright’s passenger, Ciera Golliday, did not have a license even though she owned the car.

Another approved exception to the warrant requirement is the eventual discovery rule. It provides that evidence is admissible at trial even if it was seized illegally.if law enforcement officers, using their normal procedures, would eventually discover the evidence legally. The Seventh Circuit upheld the search since even though the search was illegal as a search pursuant to an arrest under Gant the gun would have eventually been discovered when the car was inventoried.

Andrew B. Sallenger lived with his mother, sister, and her four children in Springfield, Illinois. He was schizophrenic and suffered from bipolar disorder.

Shortly after midnight on April 30, 2002 he had a major psychotic break. His sister, Kim Nolan, called the police. They arrived shortly after 2:00 am. Sallenger, a large man was running around the house nude, and out of control. The police eventually subdued him, placed him in handcuffs and hobbled him. A hobble is a cord that is looped around the lower legs and connected to the handcuffs. If the hobble is not properly applied it can result in death. ¹ Shortly after the hobble was applied Salenger stopped breathing. The question before the court is whether the officers acted reasonably, as is required by the Fourth Amendment, after discovering that Salenger stopped breathing. The officers testified that they immediately applied CPR and summoned an ambulance. However both the officers and Sallenger’s estate, which was suing the officers and the town of Springfield for violating his Fourth Amendment rights, agreed that police Lieutenant Mark Bridges arrived at the residence shortly before the officers initiated CPR and called the ambulance. But there was a seven minute gap between the original radio transmission saying that Sallenger was not breathing and Bridges’ transmission saying he was on the scene. The implication is that the police waited seven minutes before they removed the hobble, initiated CPR and called the ambulance. But Bridges testified that with the chaos at the residence he may not have radioed in his location until seven minutes after he arrived. During that period he helped to provide emergency care to Sallenger. Therefore the Seventh Circuit upheld the trial court’s finding of summary judgement on the Estate’s claim that the officers failed to provide proper medical care to Sallenger after applying the hobble.

A second claim before the Seventh Circuit was the Estate’s claim that the trial court wrongly granted summary judgement on the count alleging that the City of Springfield failed to train its officers on the proper use of the hobble. But since the jury found in two trials that the officers did not improperly use the hobble, the city could not be held liable for failing to train the officers in the proper use of the hobble.

Mahmoud “Mike” Shamah and Richard Doroniuk were two dirty Chicago cops. With the help of a snitch they found drug dealers, or people they thought were selling drugs, arranged for their arrest and stole their money and drugs. The drugs would be used to plant on the next person.

Eventually they were caught and Shamah was convicted while Doroniuk plead guilty to Rico (Racketeer Influenced and Corrupt Organizations Act) offenses. Specifically Shamah was charged with:

violating the substantive RICO statute. The RICO conspiracy provision makes it unlawful ‘to conspire to violate any of the provisions . . . of the RICO statute. Shamah was charged with conspiring to violate subsection (c), which makes it “unlawful for any person employed by or associated with [an] enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity of collection of unlawful debt.’

Two issues were raised on appeal about the sufficiency of the evidence. “To prove a violation of § 1962(c), the government must prove the following elements: (1) conduct (2) of an enterprise (3) through a pattern of racketeering activity.” Shamah claimed that a street cop he did not exercise any control over the enterprise i.e. Chicago Police Department. But the court found that he had sufficient discretionary power over the core duties of the department: arresting people that he met the enterprise element. As the Seventh Circuit stated: “[T]he ‘prototypical’ RICO case is one where a person seizes control of an enterprise and uses it to commit criminal acts he could not do himself. . . .Only ‘a step away’ from the prototypical case is one where a criminal uses an enterprise to engage in criminal activities but is generally ‘content to allow it to conduct its normal, lawful business.” This is the latter case where the officers used the Police Department to commit robberies.

Second, Shamah claimed that as a police officer he had the right to use force to arrest people. Therefore, the use of force could not be used to prove a robbery, one of the predicate crimes of a RICO offense. But the court said their was sufficient evidence before the jury that they could find that the arrests and the use of force was merely a pretext for the taking of money and drugs. As a result the officers committed robberies. Five incidents were charged before the jury and three more were raised at sentencing. Only two predicate crimes need to be shown to convict for a RICO offense and there was more than sufficient evidence according to the Court.