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Illinois State Police are Conducting Traffic Stops Based Upon Confidential Informant Tips - These Stops are Called "Walled Off Stops" or "Whisper Stops"

The Illinois State Police working in conjunction with the DEA are actively receiving confidential informant tips relevant to drug trafficking and money laundering cases.  The information is passed along from the CI to the DEA.  The DEA in turn advises the Illinois State Police of a potential travel area and give a description of the vehicle they should be on the lookout for.  The vehicle is identified with make, model, state of licensure, and sometimes a driver description.  The Illinois State Police are told to "manufacture" a reason to stop the vehicle.  They conduct a traffic stop when the vehicle is identified. 

The term "Walled Off Stop" was coined was to describe the effort police expend in these stops by attempting to prevent legal defense counsel from identifying this stop as stemming from a confidential informant.  If defense counsel can identify the stop as stemming from a CI sometimes their identity can be forced to be divulged through discovery motions.  If the police actually have reasonable suspicion separate and apart from the CI's claims, the stop will be deemed legitimate.  If the stop is conducted solely based upon a CI's claims, the police may have to disclose the identity, CI packet, and other items before being able to justify the stop.  The stops are also referred to as "Whisper Stops."  Oftentimes a GPS unit will be affixed to the subject vehicle without the knowledge of the owner or operator.  The device is tracked by police who then conduct a traffic stop when the vehicle enters their jurisdiction.

Defense attorneys should attempt to determine if their client was subjected to this type of traffic stop.  Determining such fact is not easy since there is absolutely no mention of the CI or the fact it was a "walled off stop" in their reports.  Paper discovery will not reveal any proof of a "walled off stop."  The best way to develop whether the individual stop is a "walled off stop" can be determined through live testimony from the trooper.  The trooper must be asked on the record and under oath how the stop developed.  This can be accomplished through a live-testimony motion for discovery hearing.  It can also be garnered at a motion to suppress hearing.  The problem with conducting the inquiry during the MTS is that you may not be able to present all relevant evidence if you first discover this information during a MTS.  Your option at this point will be to request a continuance to follow up at a later date due to the recently discovered evidence that a CI existed. 

The fact that no written proof of such a stop exists makes it difficult to pry facts from the arresting troopers.  Almost 200 such stops were conducted in Coconino County, Arizona from 2006-2008.  The district attorney for that county stated: “Because of their nature, walled-off stops often do not include written information,” said Chief Deputy Coconino County Attorney Mike Lessler. “It’s sensitive intelligence information that flows between federal and state and local law enforcement agencies, and if they were to put that information in writing, it could compromise their intelligence.”

In these types of traffic stops the Illinois State Police almost always never have video tape evidence of the suspect vehicle that proves a violation of the traffic code.  The ISP dashcams are subject to "malfunctions".  They also don't show any alleged traffic violations if the trooper is sitting in the median at a 90 degree angle to the traffic lane.  It is rare to actually see any violation that the trooper claims is the basis for the traffic stop.  Troopers almost always claim a violation of the "Fatal Five" leads to the traffic stop.  The term "Fatal Five" is not a legal term.  It is a term used by various police agencies in and outside the US.  The Fatal Five violations are: DUI, Improper Lane Use, Following Too Closely, Speeding, and Cell Phone Use.  I have seen a variety of offenses that makeup the Fatal Five that are different from one another.  It appears that either statistics change from year to year or the data is manipulated by police to advance their causes. 

Court cases have determined "Walled Off Stops" are not illegal pretextual stops as long as the government can establish a legitimate basis to stop the vehicle aside from the CI's claims.  U.S. v. Andres, 703 F.3d 828 (2013).  See also United States v. Benard, 680 F.3d 1206 (10th Cir., 2012)(Justice Gorsuch authored) approving of wall stop.  There are other cases that have determined such stops are valid.  See also, The Court finds no merit to the Defendant's argument that because the investigators wanted to conduct a "walled-off" traffic stop, they were then required to develop independent probable cause to initiate the traffic stop. Just because the officers did not want to rely solely on their drug investigation, does not mean that they were not "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonable suspicion is based on the totality of the circumstances "known to the officer" when they make the stop. United States v. Uribe, 709 F.3d 646, 650 (7th Cir. 2013). "[S]ubjective motivations for stopping and detaining a suspect are not relevant to the reasonableness inquiry." United States v. Bullock, 632 F.3d 1004, 1012 (7th Cir. 2011). When officers are in communication regarding a suspect or are working together at a scene, the knowledge of one officer may be imputed to the other officers under the collective knowledge doctrine. United States v. Sawyer, 224 F.3d 675, 680 (7th Cir. 2000); United States v. Williams, 627 F.3d 247, 252 (7th Cir. 2010) ("The collective knowledge doctrine permits an officer to stop, search, or arrest a suspect at the direction of another officer or police agency, even if the officer himself does not have firsthand knowledge of facts that amount to the necessary level of suspicion to permit the given action.")


See. http://www.patc.com/weeklyarticles/print/2013_5th_us_andres.pdf

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The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.

Today, much of the SOD’s work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked “Law Enforcement Sensitive,” a government categorization that is meant to keep them confidential.

“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.”

A spokesman with the Department of Justice, which oversees the DEA, declined to comment.

But two senior DEA officials defended the program, and said trying to “recreate” an investigative trail is not only legal but a technique that is used almost daily.



Brian L. Polinske
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