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Posted on in Search Warrant

b2ap3_thumbnail_warrant.jpgIllinois police will be authorized to perform a search and seizure for a number of different crimes, including suspicion of drug possession and/or sale. However, there are rules that officers must follow in order to legally perform their duties.

Officers are not permitted to simply enter a private home without a warrant for the search and seizure. The Fourth Amendment of the United States Constitution protects a person in their own home from unreasonable searches.

What Is an Illegal Search and Seizure?

The Fourth Amendment says that a person is safe in the privacy of their home, documents, and effects from seizure and that no warrants will be issued unless there is probable cause for the search. This differs from the early days of the amendment when “general warrants” were issued and homes could be searched with no evidence at all.

Now, if the authorities have enough evidence to warrant a reasonable search, they are allowed to do so with the proper documentation.

A search becomes illegal if:

  • The properly documented warrant is not gathered and given to the homeowner prior to the search.
  • The police search personal areas of an apartment with only permission from a landlord or roommates. Legally, the police can search common areas of an apartment with only the landlord’s permission, but they cannot search bedrooms.
  • The police have no probable cause for entering the home or property.

What Can You Do to Defend After an Illegal Seizure?

The first thing to do after an illegal search and seizure is to hire a lawyer to build a case against the law enforcement officers who conducted the search. The victim of the search cannot sue the officers involved because of the “qualified immunity” doctrine which protects government officials while they perform their duties.

A victim can utilize the exclusionary rule which would prevent the government from using evidence obtained in illegal search and seizures. This strategy can protect the victim from criminal charges that would not have been discovered without an illegal search.

Contact an Elgin, IL Criminal Defense Attorney

If you or someone you know is a victim of an illegal search and seizure and are now facing criminal charges, as a result, hire a lawyer from the Law Offices of Brian J. Mirandola to defend your Fourth Amendment rights. To schedule a free consultation with a Kane County search and seizure lawyer, call 847-488-0889.

 

Sources:

https://constitutioncenter.org/interactive-constitution/amendments/amendment-iv

https://www.law.cornell.edu/wex/exclusionary_rule

 

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drugs, Kane County drug crimes attorneyAs per the Fourth Amendment to the United States Constitution, police cannot search a person’s private residence without a search warrant issued by a judge. So, if police believe you have illegal items in your home, that suspicion alone is usually not enough to merit a legal search. However, the laws which protect citizens’ privacy are quite different when it comes to motor vehicles. Because we operate vehicles on public roads, police have much more freedom when it comes to searching a person’s car or truck. If police have searched your vehicle and discovered marijuana, amphetamines, opioids, or other illegal drugs, you may be facing harsh criminal consequences.

When Can Police Legally Search a Vehicle?

Although police have more authority to search motor vehicles than homes, they are still required to follow certain rules regarding vehicle searches. An officer cannot stop and search a vehicle without a reasonable cause for doing so.

There are five main ways a police officer is authorized to search someone’s vehicle. Firstly, if the driver of the vehicle gives the officer consent, the officer may search the vehicle. It is important to always politely decline police vehicle searches if given the chance. A search is also permitted If the officer has probable cause to believe evidence of criminal activity such as stolen items, drugs, or illegal weapons is in the car. Furthermore, police may search a car if they believe doing so is necessary for their own protection. For example, if police have stopped a vehicle but worry the drivers are armed and dangerous, they may be permitted to search the car for weapons. Police may also search a vehicle after a person is arrested. Lastly, police can search a vehicle if they have a search warrant.

Unwarranted Searches Can Result in Dropped Charges

If police searched your vehicle and discovered illegal drugs in it, make sure to discuss the legality of the search with a qualified criminal attorney. If it can be demonstrated that police did not have a valid reason to search the car, truck, motorcycle, or other vehicle, the evidence obtained from that search can be thrown out. If the evidence against you is dismissed, the criminal charges will most likely be dropped.

Do Not Face Drug Charges Alone

Illinois law says that those found transporting drugs in their car may face fines, probation, loss of driving privileges, and jail time. Possession of small amounts of marijuana has been decriminalized in Illinois, but possessing more than 10 grams of cannabis or having drugs like heroin, cocaine, morphine, amphetamine, and barbituric acid/salts can result in much more severe criminal penalties.

If you have been arrested on drug charges, speak to an experienced Kane County criminal defense attorney as soon as possible. Call 847-488-0889 today to schedule your free initial consultation at The The Law Office of Brian J. Mirandola.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=1941&ChapterID=53

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1937&ChapterID=53

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Elgin criminal defense attorneyIt can be hard to know exactly what your rights are when it comes to police searches. Under federal law, police may only search homes and vehicles under certain circumstances. If a police officer wishes to search your home, he or she will usually need to acquire a search warrant before entering the property. Cars, trucks, motorcycles, and other motor vehicles do not always necessitate a search warrant. One way police may legally search a person’s vehicle is if the driver gives them permission to do so. Most legal experts believe that citizens should never give police permission to search their vehicle—even if they have nothing to hide.

When Police May Search Your Car

The Fourth Amendment to the United States Constitution protects American citizens from unreasonable searches and seizure of personal property. In order to legally search a vehicle, police must have a valid reason, a search warrant, or the driver’s permission. More specifically, police may lawfully search a vehicle only if:

  • The driver or owner of the vehicle gives the officer permission to search the vehicle;
  • The police officer has probable cause to believe there is evidence related to a crime in the vehicle;
  • The vehicle was towed and impounded by police;
  • The officer believes a search is necessary to protect his or her own safety; or
  • The driver has been arrested.

Agreeing to a Vehicle Search

If police suspect that a vehicle contains illegal drugs, contraband, hidden weapons, or other evidence of a crime, they may wish to search the vehicle. If there is no probable cause or other reason they may legally search the vehicle, the police may simply ask the driver for permission to search the vehicle. Police often use indirect language to ask permission and may say something like, "You don’t mind if I take a look around, do you?" They may even imply that you do not have a choice in the matter. However, you always have the option to calmly respond, "I do not consent to a search."

Why You Should Not Consent

Even if you have nothing to hide, you should exercise your constitutional right to be free from unnecessary searches because refusing a search protects you if you end up in court. If you decline a search and the officer searches the vehicle anyway, the officer will have to prove in court that there was a good reason, or probable cause, to do so without a warrant. Sometimes, refusing can prevent the search altogether.

Call Us for Help

If you have been accused of a crime based on evidence found during a warrantless search of your car, speak with an experienced Kane County criminal defense lawyer. Call The The Law Office of Brian J. Mirandola at 847-488-0889 to schedule your confidential consultation today.

Sources:

https://www.huffingtonpost.com/scott-morgan/5-reasons-you-should-neve_b_1292554.html

https://www.law.cornell.edu/constitution/fourth_amendment

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marijuana, Kane County drug crimes attorneyAn Illinois woman is facing possible felony drug charges after police officers found a bottle of the painkiller tramadol in her coat pocket. The 59-year-old woman does actually have a prescription for the type of pills found by police, but she has been charged with possession of a controlled substance that had been prescribed to one of her relatives. What makes this story unique is the way in which the pills were discovered.

Unreasonable Searches and Seizures

The pills were only discovered after police searched the woman’s car. The Fourth Amendment to the U.S. Constitution protects gives citizens the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Usually, police must have a warrant to search a home, but motor vehicles are different. A police office must only have "probable cause" to search a vehicle. Probably cause means that the officers must have reason to believe that evidence of a crime or illegal items will be found in the car. However, there are not clear answers as to what counts as probable cause. Of course, illegal items such as drugs, drug paraphernalia, stolen goods, or weapons in plain sight usually constitute probable cause, but officers do not have to physically see contraband in order to be authorized to search the vehicle. In 1985, the Illinois Supreme Court approved car searches if the police officer claimed to be able to smell marijuana in the car.

What Constitutes Probable Cause?

The issue with which the accused woman’s lawyer is concerned, is how the police gained access to the car. Police only discovered the illegal pills because they claim they say marijuana in the vehicle. What was allegedly drugs turned out to be pistachio shells. The suspect’s attorney believes that the shells were a false pretext to search the entire vehicle because pistachio shells look nothing like marijuana. Even those police officers who have never used or seen cannabis in real life applications have seen it on television or during training. This led the woman’s attorney to claim that the police illegally searched the defendant’s vehicle. Police never found any actual marijuana in the woman’s car, but she was still arrested for possession of the tramadol. Luckily for the defendant, her attorney doubts that the charges will stick. He told reporters "I think we are a motion to suppress and a bag of pistachio nuts away from resolving this matter."

Facing Criminal Charges?

At The The Law Office of Brian J. Mirandola, we are dedicated to protecting the rights of those who are facing criminal charges. To learn more about how we can help with your case, contact an experienced Elgin criminal defense attorney today. Call 847-488-0889 for a free, confidential consultation.

Sources:

https://illinoiscaselaw.com/police-car-search-legal-in-illinois-if-they-smell-marijuana/

https://www.alternet.org/drugs/illinois-woman-felony-drug-charges-cops-mistake-pistachio-shells-marijuana

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US Supreme Court, cell phone, Illinois Criminal Defense AttorneySeveral years ago, a California man was pulled over for expired registration tags and, when it was realized the man was driving on a suspended license, his vehicle was impounded. When law enforcement officers conducted an inventory search of the car, they found illegal firearms, and the man was arrested on weapons charges. Incident to the arrest, officers accessed the man’s smartphone and as a result of pictures found on the phone, charged the man with additional crimes, including in connection with a shooting from a few weeks prior. The photos were admitted as evidence during the man’s trial and he was convicted.

SCOTUS Decision

Ultimately, the case, along with a similar one from Massachusetts, found its way to the United States Supreme Court. In a decision sure to have a far-reaching impact on mobile technology and the right to privacy, the high court ruled in favor of the man, agreeing that the evidence against him had been obtained in violation of his Fourth Amendment rights.

More importantly, Chief Justice John Roberts, in writing the unanimous opinion noted that mobile devices such as cell phones are different "in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person." He also acknowledged the ubiquity of cell phones in modern culture, "which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."

No Imminent Danger

When a person is arrested, he or she is typically searched for items that pose a physical threat to the arresting officer. Digital data stored on a cellular device, Roberts wrote, presents no such danger. Thus, there is little reason to seek an exemption to Fourth Amendment warrant requirement. The phone may be seized and steps may be taken to prevent remote wiping of data (such as the use of cell signal blocking devices called Faraday bags), but law enforcement officers must secure a warrant based on probable cause before conducting a search of the phone’s contents.

A trial court may consider isolated exceptions to the Supreme Court’s ruling, based on the existence of "fact specific threats [that] may justify a warrantless search of cell phone data." Chief Justice Roberts specifically mentions suspected child abductors and the potential use of a cell phone to detonate a bomb as examples of "extreme hypotheticals" that may be considered.

If an illegal search and seizure has led to criminal charges against you, you need an attorney committed to protecting your rights. Contact an experienced Kane County criminal defense lawyer at the The Law Office of Brian J. Mirandola today.  We will review your case and help you understand your options under the law. Call 847-488-0889 to schedule your free consultation.

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