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No Warrant Needed for Illinois Drug Audio Recordings [FEATURE]

Submitted by David Borden on (Issue #747)
Drug War Issues

special to Drug War Chronicle by Clarence Walker, [email protected]

No warrant needed for listening in on drug suspects (
In Illinois, the war on drugs has delivered yet another blow to citizens' privacy rights. In the Land of Lincoln, it is illegal for citizens to record or videotape Illinois police in public, yet the Illinois legislature last month gave police the right to engage in those very same activities -- without a warrant -- during drug investigations.

On July 24, citing police safety and the need for quicker drug arrests, Gov. Pat Quinn (D) signed into law House Bill 4081, which exempts police doing drug investigations from the provisions of the state's eavesdropping law. It also allows them to audio or videotape drug suspects without having to get a warrant.

Under the bill, sponsored by state Reps. Jehan Gordon (D-Peoria) and William Haine (D-Alton), the normal requirement of a warrant based on probable cause is replaced by the lower and constitutionally-suspect requirement of only reasonable cause. In a further victory for the imperatives of the drug law enforcement, police will be able to bypass judicial scrutiny of their need to record someone and instead will merely have to obtain prior approval from a prosecutor to listen in on suspected drug conversations.

"The world of illicit drugs moves very quickly," explained Terry Lemming, an Illinois State Police commander, during a May hearing on the bill. "It's very difficult to find a judge in the middle of the night. I didn't see the sense in spending all these hours drafting a court order when I could have already gone out and arrested a guy selling on the corner -- and that's the feeling of many narcotic officers."

Riverside, Illinois, Police Chief Tom Weitzel told the Chronicle the new law was desperately needed. Weitzel is a member of the Illinois Association of Chiefs of Police, who, along with his comrades, fought for 14 years to get the law passed.

"The law is critical to undercover narcotic officers for several reasons," he wrote in an email. "First, it's an officer safety issue because many times backup teams are blocks away when drug transactions either take place in cars, within homes or apartments, or just on the streets."

Weitzel even went as far as to say the law would benefit defendants, too.

"The legislation will help secure better evidence for prosecutors and protect suspects from police misconduct, including the fact the same audio recordings made by police can be used by defendants who claim entrapment," he argued.

But while the bill is now law, not everyone is happy about it. Rumblings of discontent have been heard from civil rights advocates, legal experts, and opposing lawmakers.

State Sen. Dan Kotowski (D-Park Ridge) argued during hearings on the bill that if judicial responsiveness is a problem for police, then the fix would be to make judges more available for warrant requests -- not to take them out of the loop.

"I'm struggling with taking away where you'd go to get a judge's approval to have a wiretap," he said.

Under the new law, judges are not completely frozen out of the process, but their role is limited to determining whether evidence gained from a wiretap can be admitted at trial.

"I understand the desire to enhance law enforcement tools to deal with crime, and I am certainly on the side of law enforcement, but it's a very slippery slope we go down when we start removing safeguards that has historically exist to make sure certain tools not be used inappropriately," state Sen. Kwame Raoul (D-Chicago) told the Chicago Tribune.

State Sen. Michael Nolan (D-Elgin) also weighed in on the matter. Nolan's dissatisfaction with the bill is the fact the new law deals with reasonable cause as the standard for having private conversations recorded, as opposed to probable cause, which is the standard bearer for the integrity of the law.

"This legislation does not base that determination of admissibility on 'probable cause,'" he said. "This is basically upending the Fourth Amendment."

ACLU of Illinois' Ed
The ACLU of Illinois had a similar reading. Its spokesman, director of communications and public policy Ed Yohnka, told the Chronicle the new law was not only constitutionally suspect but also unnecessary.

"In all the years that Illinois law enforcement worked for this change, they never been able to point to a particular need for this new power. In many years, we have seen drug related arrests in Illinois rise over a yearly period without this new authority -- which begs the question: is this power really necessary?" he asked.

"The legislature should have left things alone because judges act as a neutral third party and they can already act fast enough," Yohnka continued. "Our personal conversations are the most intimate we have and government should make certain it is necessary to intrude before engaging in eavesdropping."

For Yohnka, the new law doesn't pass the smell test. He noted that current law already allows police to wiretap or do audio recording in an emergency and suggested the real intent is to allow police to more easily listen in on targets not directly involved with drug trafficking, targets merely associated with a prime suspect.

"The current law permits an officer to conduct warrantless wiretapping or audio-recording if police or citizens were in imminent danger," Yohnka said. "The creation of this new authority suggests this is not about protecting police officers."

What makes the new law all the more galling to some is that police, who can now wiretap drug suspects without a warrant, have a habit of arresting members of the public who do the same thing to them. Under current Illinois eavesdropping law, citizens have the right to video a police officer making a public arrest, but a person cannot record an audio of police without permission.

That law is now under review by the state's appellate courts in a case arising from the 2009 arrest of self-employed artist Christopher Drew. When police arrested him for selling art on the street without a proper permit, they discovered him recording the encounter. They then charged him with felony eavesdropping for recording them without their permission.

Drew went public and fought to have the law declared illegal and earlier this year he won a partial victory when Circuit Court Judge Stanley Sacks declared it unconstitutional. Sacks ruled that the law criminalized innocent conduct and violated due process. But state prosecutors appealed the ruling and vowed to keep it on the books.

One standard for police, another for citizens. Police can record private conversations without a warrant, but citizens face years in prison if they record police in the line of duty -- at least until the Illinois courts definitively rule that portion of the eavesdropping law unconstitutional. Meanwhile, look for legal challenges to the new law allowing police to bypass judges and the warrant process in their never-ending war on drugs.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


sicntired (not verified)

This is just the latest in a long line of amendments aimed at making it easier for police to throw people in prison for drugs.If there was a shortage of drug convictions one may think it was needed but with the current stats on prison populations and drug convictions it seems this is just another reach around of the constitution for the sake of the drug war.Like so many laws before it,this is just one more effort at winning a war on drugs that has done nothing positive and much negative since it's inception.I guess like everything else they do it will probably make no one happy but the private prison industry.It makes you wonder just who is making the money from this failed war on drugs?Someone is working very hard to keep this insanity moving in the same useless direction.Including the President of the USA.Who we all know ,knows better but is doing it anyway.

Mon, 08/20/2012 - 11:44pm Permalink
Publius (not verified)

Seig hiel, Amerikaner! The Fuhrer didn't think your Constitutional liberty would last very long. How's living in the Fourth Reich?

Tue, 08/21/2012 - 12:09pm Permalink
Publius (not verified)

Seig hiel, Amerikaner!

The Fuhrer didn't think your Constitutional liberty would last very long. How's living in the Fourth Reich?

Tue, 08/21/2012 - 12:10pm Permalink
Malc (not verified)


* In 2010, 52.1% of the 1,638,846 total arrests for prohibition violations were for marijuana -- making a calculated total of 853,839. 

* Of those, an estimated 750,591 people (45.8%) were arrested for marijuana possession alone. 

* By contrast, in 2000, a total of 734,497 Americans were arrested for marijuana "violations", of which 646,042 (40.9%) were for possession alone. 

* From 1996-2010, there were 10.1 million arrests for marijuana possession and 1.4 million arrests for the sales and distribution of marijuana, equaling a total of 11.5 million marijuana arrests during that fifteen year time frame.

* Marijuana "violation" arrests were 39.9% of total prohibition arrests in 1995 increasing to 52.1% of such arrests in 2010. 

* During this same period, arrests for marijuana sales and distribution fluctuated between 5-6% of total prohibition arrests, while those for simple possession increased from 34.1% in 1995 to 45.8% in 2010. 

* Arrests for marijuana possession have risen from about a third to about a half of all prohibition violation arrests over the fifteen year 1995-2010 period.

"Drug Policy and the incarceration of low-level drug offenders is the primary cause of mass incarceration in the United States.  40% of drug arrests are for simple possession of marijuana. There is also evidence that drug enforcement has diverted resources from law enforcement of violent crimes and other threats to public safety" - page 2

"Criminalization has resulted in increased use of harsh punitive sanctions imposed on drug offenders and dramatic increases in rates of incarceration. These policies have had limited impact on eliminating or reducing illegal drug use and may have resulted in adverse consequences for social and community health" - page 2

"Criminalization of possession and illegal use of drugs compounded by mandatory sentencing and lengthy prison sanctions for low-level drug use has become the primary cause of mass incarceration. The global prison population has skyrocketed in the last three decades with ten million people worldwide now in jails and prisons. The extraordinary increase in the number of people now incarcerated has had tremendous implications for state and national governments dealing with global recession and a range of economic, social and political challenges. Research indicates that resources that would otherwise be spent on development, infrastructure, education and health care have been redirected over the last two decades to incarcerating drug offenders, many of whom are low-level users." - page 3

"Sociologists have also recently observed that the widespread incarceration of men in low-income communities has had a profound negative impact on social and cultural norms relating to family and opportunity.  Increases in the imprisonment of poor and minority women with children have now been linked with rising numbers of displaced children and dependents. Drug policy and the over-reliance on incarceration is seen by many experts as contributing to increased rates of chronic unemployment, destabilization of families and increased risk of reincarceration for the formerly incarcerated." - page 3

"In the United States, drug arrests have tripled in the last 25 years, however most of these arrests have been for simple possession of low-level drugs. In 2005, nearly 43% of all drug arrests were for marijuana offenses.  Marijuana possession arrests accounted for 79% of the growth in drug arrests in the 1990s. Nearly a half million people are in state or federal prisons or a local jail for a drug offense, compared to 41,000 in 1980. Most of these people have no history of violence or high-level drug selling activity" - page 4


***** "With over 5 million people on probation or parole in the United States, drug use on parole or probation has become the primary basis by which thousands of people are returned to prison. These technical violations of parole or probation account for as many as 40% of new prison admissions in some jurisdictions." - page 6

Tue, 08/21/2012 - 4:44pm Permalink
Annapurna1 (not verified)

at least at first glance.. the IL law appears to be in direct conflict with federal law requiring a court order for wiretapping domestic land-line calls.. and the courts have consistently and unambiguously upheld the warrant requirement on such while a court might not accept a challenge based on the 4th amendment..the IL law still runs afoul of the supremacy clause...

Wed, 08/22/2012 - 5:45pm Permalink
joebanana (not verified)

Article 6 of the constitution basically say's that law is null and void, as if it never existed. And those who supported it can start packing, because they no longer represent the US government. Or, the people

Thu, 08/23/2012 - 1:57pm Permalink
socrates2 (not verified)

"Weitzel even went as far as to say the law would benefit defendants, too.

'The legislation will help secure better evidence for prosecutors and protect suspects from police misconduct, including the fact the same audio recordings made by police can be used by defendants who claim entrapment,' he argued."

Chief Weitzel, the patent unconstitutional invasion of privacy aside, I can practically guarantee you that said electronic recordings will NOT be made available to the defense. Been around the block a few times to buy into that political talking point. The reality is, when the recordings help the police and their best friend, the police department's personal law firm, the local elected District Attorney, they certainly exist, in all formats, in loving close-ups and absolute clarity! When the defense asks for them to prove false arrest/police brutality/perjury/false confessions/misquotes, etc., "the equipment was not operating properly," so "no recordings exist." 

If you want the Hooverian excuse to pry and have access to people's secrets for future use, just say so. The Stasi ("Schild und Schwert der Partei") did as much. Sanctimoniousness does not become a human being who feels he needs a uniform, a badge and a gun before he heads for the office.

Amazing what rights our elected and appointed officials feel free to nullify once they invent a war on this or that enemy-of-the-month, be it "communism," "drugs" or "terror." I suppose it must always be so with insecure bureaucrats hungry to expand their fiefdoms, their power and their budgets. What's all that "needed" surveillance and equipment going to cost the already over-burdened taxpayer? Is the highly profitable Prison-Industrial complex, always eager for "clients" at taxpayer expense, behind this law, too? For shame on the legislators who forgot their oath to the Constitution and voted for this ill-conceived and un-American piece of legislation. 

Enough! WW2 was lost, as was the mad ideology which fueled it. Why bring back the specter of the Gestapo and the SS? Where are the sane, adult legislators hiding?

Thu, 08/23/2012 - 2:07pm Permalink
misty richard (not verified)

This is a blatant disregard for our rights. When and where does this end? Think about it. There is something seriously wrong with our country. Since when did we become communists in totalarian communities where the government can invade our privacy as they choose? What comes next? Does anyone remember Auschwitz?
Fri, 08/24/2012 - 10:36am Permalink
dogbreth (not verified)

The city of Black River Falls, WI recently passed a civic ordinance that 'certifies' all of the members of the city police force to be Building Inspectors.  Building Inspectors do not need warrants to look around for "potentially harmful situations" in residences, businesses or other structures.  The city claimed it needed to do this because of the fiscal environment in which they are unable to afford the full services of competent building inspectors, and that the police are the 'first line of defense' since they are 'boots on the ground' and are more likely to see building code violations than the part time inspector.  After giving a small notice in a weekly published newspaper the council made a quick vote at their next meeting and made an end-run on the constitutional rights of citizens regarding warrantless searches.  The police are not receiving additional training for these duties - because they really aren't inspecting buildings, they are conducting warrantless searches.  If the ACLU or other civics watchdog organizations have noticed this city ordinance they certainly haven't said anything. 

Sun, 08/26/2012 - 9:09pm Permalink
MoparCzy (not verified)

If you live in Illinois, register to vote if you aren't already.  Then make sure that you vote no on everyone of the people who voted for this BS that you legally can.  If there is an initiative system to allow the people to put initiatives on the state ballot then get busy and get one on there to repeal this law.  If you are busted for drugs and they used this law to be able to arrest you then sue them on the grounds that it violates the US Constitution.

Also while we are talking about voting, vote no on everyone who is currently in office and vote in someone who is not running as a Democrat or Republican.  They have had enough time to really screw this country up, time for a REAL change.

Tue, 08/28/2012 - 11:46pm Permalink

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