April, 2017

Illinois:  Appeals Court Reverses Denial of Motion to uppress and to Quash Arrest Where Defense Counsel Was Ineffective for Failing to Challenge Cell Phone Surveillance Evidence

Defendant was convicted of armed robbery after he was arrested without a warrant through the use of advanced cell phone surveillance technology that pinpointed his location by his cell phone.  When the prosecutor sought to bar testimony about the surveillance technology used, trial defense counsel stated he did not intend to elicit the information, and the court granted the prosecution’s motion.  The court then denied defendant’s motion to admit evidence about the man defendant alleged he bought the subject cell phone from as an alternate suspect.  On appeal, the court found that the officers’ testimony about the technology was sparse, vague, obfuscating, and at times incoherent and did not lay an adequate foundation for admission.  Specifically, defendant took issue with the testifying officers’ description of the technology as a “pen register” (which can only provide information about incoming and outgoing calls), despite describing the devices capabilities as similar to those of a Stingray (which can pinpoint a person’s exact location).  The court found that trial counsel was ineffective for failing to object to the introduction of the lay testimony and that defendant was prejudiced because all inculpatory evidence originated from defendant’s warrantless arrest and remanded for a rehearing on the motion to quash.   People v. Smith, 2017 BL 63479, Ill. App. Ct., 1st Dist., No. 1-14-1814, 3/1/17; full text at
http://www.illinoiscourts.gov/R23_Orders/AppellateCourt/2017/1stDistrict/1141814_R23.pdf

Indiana: Video Recording of an Alleged Drug Buy Was Improperly Withheld From Defendant

The Indiana Supreme Court unanimously held that the prosecutor failed to meet the burden required to show that the informer’s privilege applied where it was unclear whether the video recording of the alleged marijuana buy between defendant and a confidential informant actually revealed the informant’s identity.  The court noted that the Indiana informer’s privilege allowed access to the video by defendant’s attorney but not by defendant in order to prevent retaliation against informants and to ensure individuals come forward with information to help law enforcement but that defendant may demonstrate an exception to the privilege as defendant did here by showing that his review of the video was relevant and helpful to his case.  Beville v. State, Ind., No. 84S01-1606-CR-347, 3/17/17; full text at
http://scholar.google.com/scholar_case?case=746967454356503606&q=84S01-1606-CR-347&hl=en&as_sdt=80000006