Justia Lawyer Rating
Top 100 lawyers
Elite Lawyer
AVVO Rating
Chicago Bar Associati
Illinois State Bar Association
10 Best - Criminal Law
10 Best - Personal Injury
10 Best - DUI/DWI
illinois Trial lawyers
Cook County Bar Association
Will County Bar Association
National Association of Criminal Defense Lawyers

How the “Surveillance Location Privilege” can Compromise a Criminal Defendant's Rights

Drug Conviction Reversed After Improper Invocation of PrivilegeThe Constitution affords all criminal defendants, such as those facing drug charges, the right to “confront” the witnesses against them. This means that if you are arrested and charged with a crime, you have the right to cross-examine the arresting officer and any other prosecution witnesses at trial. However, law enforcement often tries to undermine a defendant's right to confrontation by withholding information that might benefit the defense and undermine the prosecution.

Drug Conviction Reversed After Improper Invocation of Privilege

Some Illinois courts recognize what is known as a “surveillance location privilege.” This often comes up in the context of drug cases where a police officer on stake out claims to observe illegal activity. At trial, the prosecution then argues that the officer should not be required to disclose his or her “secret” surveillance location.

Although the Illinois Supreme Court has never expressly approved of the surveillance location privilege, the state's intermediate appellate courts do. The privilege itself is not unlimited but rather must be assessed on a case-by-case basis.

Consider a recent example. In this case, the defendant was arrested, tried, and convicted of possession of a controlled substance and sentenced to nine years in prison. During pre-trial discovery, the defendant asked the prosecution to disclose the exact surveillance locations of the police officers who allegedly observed him engaging in a narcotics transaction. The state refused, citing the privilege, and the judge agreed that disclosure of the police officer's surveillance location “would harm the public interest.”

The Illinois First District Appellate Court disagreed and reversed the defendant's conviction. The burden is on the prosecution to justify the invocation of the privilege, the appeals court noted, which is generally done in a closed hearing in the trial judge's chambers. The trial judge here did conduct such a hearing, but no transcript was made. The Appellate Court was therefore unable to review exactly “what evidence was presented” to determine if the prosecution, in fact, met its burden.

Beyond that, the First District also said the trial judge erred by not affording the defendant a chance to rebut the prosecution's evidence in support of its privilege claim. A trial court is required to “balance the public interest in keeping the [surveillance] location secret against the defendant's interest in preparing a defense.” Here, the Appellate Court said the trial court “abused its discretion” by failing to perform this constitutionally necessary balancing test.

Have You Been Charged With a Crime?

If you are facing a criminal charge and the possibility of spending several years in prison, it is essential that you have qualified representation. Speak with an experienced Orland Park criminal defense attorney. Contact the Fotopoulos Law Office, today.


Illinois Official Reports

Client Reviews
John Fotopoulos is a very knowledgeable and professional attorney. I am a client and have referred him many close friends and family to John. I would recommend John Fotopoulos to anyone who needs help with personal Injury and criminal justice. I have know John Fotopoulos for over 15 years and he has always put his clients first. Colette G.
John is one in the most professional attorneys out there. His personal approach to his clients is amazing. He does whats best for you, even if its not what you want to hear. This approach and his availability to be reached whenever you need him, makes John the only attorney youll ever need. Mark
John is very dedicated to his clients and his work. He is extremely knowledgeable, responsive and thorough. It is hard to find a lawyer that you can trust and depend on, John is that lawyer. He goes above and beyond to make the most difficult times less difficult. Kris T.