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Drug War bill cuts judges from wiretap process

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Illinois

* Oh, no, our civil liberties will be fine while the government conducts its endless war on drugs…

Illinois Gov. Pat Quinn sparked frustration among civil rights advocates by signing a new police wiretap law Tuesday.

Illinois police currently need a court order to secretly record conversations of drug criminals, but under the new law that goes into effect Jan. 1, a state’s attorney could give that go ahead.

Quinn said the change will allow faster arrests. […]

But Ed Yohnka, director of communications and public policy with the American Civil Liberties Union, wished Quinn and the legislature would have left things alone. Yohnka said judges act as a neutral third party and they can already act fast enough.

* From the synopsis…

Provides that it is an exception to an eavesdropping violation, with prior request to and verbal approval of the State’s Attorney of the county in which the conversation is anticipated to occur, recording or listening with the aid of an eavesdropping device to a conversation in which a law enforcement officer, or any person acting at the direction of a law enforcement officer, is a party to the conversation and has consented to the conversation being intercepted or recorded in the course of an investigation of a drug offense.

* From a Quinn press release…

This legislation will strengthen the justice system by allowing more credible evidence into criminal proceedings. Judges and juries will be able to hear the actual conversations of those suspected of committing drug crimes, rather than relying on witness testimony that can be unreliable. Prosecutors and defense attorneys will also have more evidence to consider while negotiating plea agreements, which reduce the burden upon the criminal justice system. This new process allows Illinois law enforcement the same flexibility in crime situations as the Federal Bureau of Investigation, the Drug Enforcement Administration and law enforcement in surrounding states.

And, yet, the police still oppose a bill that would allow citizens to record their public comments without facing a felony and years behind bars.

Discuss.

posted by Rich Miller
Wednesday, Jul 25, 12 @ 10:37 am

Comments

Orwellian.

Comment by Jade Rabbit Wednesday, Jul 25, 12 @ 10:46 am
Sure, because what we really need right now is to lock up more non-violent offenders. Right. Good plan.

Comment by Skeeter Wednesday, Jul 25, 12 @ 10:51 am
It’s part of PQ’s jobs bill. Fill the prisons, hire patronage workers.

Polish up your “Who sent ya” letters

Comment by plut Wednesday, Jul 25, 12 @ 10:55 am
“You know the score, pal. You’re not cop, you’re little people!” — Bryant, “Blade Runner (1882)

– MrJM

Comment by MrJM Wednesday, Jul 25, 12 @ 11:08 am
This isn’t new - there are other examples where judges are not involved in the initial process and law enforcement can record without consent. The process established in the bill is similar to other current laws, but it has some added protections.

Any evidence collected has to be reviewed by a judge before it is admissible in court.

Comment by Anon Wednesday, Jul 25, 12 @ 11:15 am
MrJM- Blade Runner was one of my favorite kine-scopes at the nickelodeon.

I’m still in shock that the courts are so obtuse as to exclude wiretaps from the concept of unreasonable search and seizure.

Comment by Anonymous Wednesday, Jul 25, 12 @ 11:16 am
Warrantless search should be unconstitutional. I’m guessing that a cellphone can be monitored directly through the carrier. What’s to stop an aggressive prosecutor from blanketing a carrier with hundreds of demands for wiretaps, without the requirement for probable cause or judicial review. Further, if the content off wireless searches can be filtered for keywords, why not monitor everybody? Totalitarianism.

Comment by chefjeff Wednesday, Jul 25, 12 @ 11:17 am
– Blade Runner (1882) –

What musical score would the theater organist be playing during that scene, to accompany the on-screen dialog?

Comment by cover Wednesday, Jul 25, 12 @ 11:18 am
can this authority be delegated? in other words, can an asst state’s atty authorize these taps?

haine was the chief sen sponsor, which gives me some faith it might be decently drafted.

Comment by langhorne Wednesday, Jul 25, 12 @ 11:24 am
I wish the folks who so strongly support and defend the 2nd Amendment would spend a little time supporting and defending the 4th Amendment.

Comment by 47th Ward Wednesday, Jul 25, 12 @ 11:36 am
Illinois keeps creeping (although at a glacial pace) toward one party consent on eavesdropping. Most states and the feds have operated under this for decades. The union hasn’t collapsed yet.

How do you folks think the feds got Rep. Smith on tape accepting a bribe? They didn’t seek his permission to record the conversation first. However, I know they had plenty of DOJ approvals to go through before it happened.

Comment by Leave a Light on George Wednesday, Jul 25, 12 @ 11:38 am
Anon- It may not be new, but it sure is shady.

Comment by b Wednesday, Jul 25, 12 @ 11:38 am
===However, I know they had plenty of DOJ approvals to go through before it happened.===

And a judge.

Comment by Rich Miller Wednesday, Jul 25, 12 @ 11:42 am
People, read the bill before criticizing it. The state’s attorney has to find reasonable cause (the state version of probable cause) before he or she can authorize the overhear. That standard does not exist in other eavesdropping exceptions. Also, a judge will still have to independently find reasonable cause existed before that evidence can be used at trial. And did anyone notice that this legislation has a SUNSET of January 1, 2015? So if this bill unleashes the horrors that some fear, the bill will die in a couple of years unless the legislature re-ups it.
So there are multiple protections built in. This is, far and away, the most specific and narrow exception to the eavesdropping law on the books. Just read the bill; the other exceptions are also right there, so you can see how much narrower this one is.

Comment by View from the Cheap Seats Wednesday, Jul 25, 12 @ 11:44 am
What’s the problem of going before a judge? Most targeted drug busts are multiple buys over a long period. There’s no homeland security time factor involved.

We have separation of powers for a reason.

Comment by wordslinger Wednesday, Jul 25, 12 @ 11:45 am
Rich and Leave a Light on George:

Sorry, you’re incorrect, the recordings of Rep. Smith did not require DOJ approval or judicial approval. You’re thinking of Blago, which required both of those—because those weren’t one-party consent overhears, they were overhears where NO party consented, because there were taps on phones and bugs planted in an office. For one-party consent in federal law, all that is necessary was the sign-off of an Assistant U.S. Attorney; they don’t even have to show probable cause. But HB 4081 requires a “reasonable cause” standard, so it’s stricter than how the feds do it.

Comment by View from the Cheap Seats Wednesday, Jul 25, 12 @ 11:48 am
Sen. Noland should be happy with expanding police authority to eavesdrop, while keeping it a felony to record police in public.

Comment by reformer Wednesday, Jul 25, 12 @ 11:49 am
Illinois is stricter than most in its requirements but this is odd. First, does it actually require only “verbal” approval? When is anything allowed without at least written approval? Second, are drug cases really the top priority of the justice system? For an overhear in a sex assault, a court order is needed but for drug cases the standard is lowered? Also, a couple of people have commented that the judge reviews all the evidence before it is admitted. Have you people ever tried a case or did you learn your law from TV? Certainly, an attorney can move to suppress evidence if he believes it was illegally obtained but judges absolutely do not review any of the evidence except where a specific motion is made.

Comment by girlawyer Wednesday, Jul 25, 12 @ 12:17 pm
Cheap Seats is correct. The US Supreme Court has permitted eavesdropping with one party consent (and without a judge’s approval) since 1971. (The case was US v. White.) That’s the way federal agents have been operating for 40 years.

Comment by Anonymous Wednesday, Jul 25, 12 @ 12:18 pm
Girlawyer, I’m sorry to tell you that you don’t know what you’re talking about.

First, do you really think a lawyer wouldn’t move to suppress these recorded statements? Of course they would, if they had any reason at all to believe the motion would succeed. That’s the real world, not TV. Suppression motions are the rule, not the exception.

And I don’t think drug cases should be the top priority of law enforcement, either, but drug cases are unique with regard to eavesdropping, because they involve undercover transactions. You mention sex assaults, but you don’t set up sting operations for sex assaults. You send in an undercover looking to buy drugs based on reasonable cause that someone is going to sell you those drugs. But sex assault cases? You don’t send in an undercover looking to get sexually assaulted. It is nonsensical to compare the two offenses.

And written approval? You want the undercover agents to carry around fax machines to receive a piece of paper before they enter the house to buy drugs? Nonsense.

Look, if the cops record these transactions and try to use them in court, 9 times out of 10 the defense lawyer will move to suppress, and the State’s Attorney will have to justify their reasonable cause for recording the deal. They will have to paper their file anyway in preparation for the criminal prosecution. I’m not a fan of the war on drugs in all its glory, either—some drugs should be outlawed, some should not—but that’s not the question here.

Comment by View from the Cheap Seats Wednesday, Jul 25, 12 @ 12:31 pm
“And a judge.”

Rep. Smith was a case of one party consent. CS1 was the party who consented to his conversation being recorded. I don’t believe judicial authority was needed before doing so.

“because those weren’t one-party consent overhears, they were overhears where NO party consented”

I understand the difference between an over hear and one party consent. Unless Illinois statutes have changed since I was in LE it is not possible to get over hear authority in this state.

“he recordings of Rep. Smith did not require DOJ approval ”

“For one-party consent in federal law, all that is necessary was the sign-off of an Assistant U.S. Attorney;”

Asst. US Attorney’s are DOJ employees. Trust me DOJ has lots of internal policies to be followed before the field investigators record their first word. Lots of reviews by DOJ lawyers working in the US attorney’s office.

Comment by Leave a Light on George Wednesday, Jul 25, 12 @ 12:47 pm
Girlawyer, read the bill and the current law.

First, many of the current exceptions do not require written permission prior to recording. Under this bill, you can get written or verbal approval. If you get verbal, you have a few additional hurdles to get through - things that aren’t required for the other exemptions.

Second, proving compliance with the section is a prerequisite to admissibility, which means a judge had to determine if law enforcement complied with this section PRIOR to admitting any evidence. This is in addition to other rules of evidence and motion practice that allow an attorney to challenge admissibility. This exemption includes the following language: “Compliance with the provisions of this subsection is a prerequisite to the admissibility in evidence of any part of the contents of any wire, electronic or oral communication that has been intercepted as a result of this exception, but nothing in this subsection shall be deemed to prevent a court from otherwise excluding the evidence on any other ground, nor shall anything in this subsection be deemed to prevent a court from independently reviewing the admissibility of the evidence for compliance with the Fourth Amendment to the U.S. Constitution or with Article I, Section 6 of the Illinois Constitution.”

Comment by Anon Wednesday, Jul 25, 12 @ 1:13 pm
Yet another example of the War on (some) Drugs destroying our civil rights, and more evidence Democrats are awful on privacy and civil rights.

Next thing you know Illinois Democrats will let the DEA put license-plate reading cameras on our roads that records plate numbers and stores them in a database to monitor everyone’s travel in case they might be running drugs. Oh wait, that’s already happening in Illinois.

Comment by Jeff Trigg Wednesday, Jul 25, 12 @ 2:22 pm
Feds already have this power- with no documented abuses. Judges are often unavailable - I had to track the Duty Judge down to his bimbo’s apartment once to find him to read and sign my handwritten search warrant application!

Comment by Nohopeforillinois Wednesday, Jul 25, 12 @ 2:28 pm
Conversations on this subject always crack me up.

Illinois is one of if not the most difficult state in the union for Law Enforcement Officers to legally record a suspects conversation without their (the suspect’s) consent. We make one little move in the direction of the other state’s in the union and you’d think somebody proposed burning the constitution.

Comment by Leave a Light on George Wednesday, Jul 25, 12 @ 2:38 pm
As we can see in the comments above- the lawyers like this bill because it is bills like these that help keep them employed. Which leads me to another interest group that is against seeing the Drug War end. It is more than just the prison and law enforcement community, it is the dawg-gone lawyers too!

Comment by b Wednesday, Jul 25, 12 @ 2:49 pm
http://arstechnica.com/tech-policy/2012/07/dc-police-chief-announces-shockingly-reasonable-cell-camera-policy/

Maybe Illinois can follow in these footsteps…

Comment by RetiredStateEmployee Thursday, Jul 26, 12 @ 7:21 am