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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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warrant, Kane County criminal defense attorneyIn today’s digitally connected world, information is everywhere. If you need an answer to a question, a few taps on your smartphone can allow you to run a Google search. If you want to contact your friend, you can send him or her an instant message or even connect through video chat instantaneously. The stream of data, however, goes in both directions. Any time that your phone is turned on, it is sending signals to nearby cell towers about your location and whether you are available to receive a call.

Over the last few years, law enforcement agencies have been able to gather information from these signals with little more than a request to the wireless service providers, but a new ruling by the U.S. Supreme Court says that a warrant must be obtained first.

The Case in Question

In 2013, a Detroit man was convicted on several charges related to armed robberies that had taken place in and around the city. The prosecution’s case was helped by cell phone evidence gathered by the Federal Bureau of Investigation (FBI) from the defendant’s cell phone service carrier. Using the Stored Communication Act, government agents needed only to show the wireless carrier that the information they were requesting was relevant to an ongoing investigation. The government did not believe that a warrant was necessary because they were not pulling the content of calls or messages. Instead, they were looking for location points.

The FBI was able to effectively track the man’s location at any given time over a stretch of more than four months—a task that included more than 13,000 individual points of location. Every time the man’s phone sent or received a location signal from a nearby cell tower, a record was made, and the government obtained access to those records.

At trial and on appeal, the courts refused to suppress the evidence, holding that the man did not have a reasonable expectation of privacy as it pertains his cell phone location records. The man continued his appeal and the U.S. Supreme Court heard the case earlier this year.

A Landmark Ruling

Last month, the Supreme Court reached a 5-4 decision to overturn the man’s conviction. The high court held that gathering cell-site location information (CSLI) is considered a search under the Fourth Amendment to the U.S. Constitution. As such, a warrant is required before such data can be obtained by investigators.

Hundreds, if not thousands, of criminal cases have included CSLI evidence over the last two decades. Legal experts believe that the Supreme Court’s ruling will open the door to motions by defendants whose cases included such information. The decision also means that investigators will need more than a simple request letter to obtain CSLI in the future.

We Can Help

If you have been charged with any type of crime and you believe that your Fourth Amendment rights have been compromised, contact a skilled Kane County criminal defense attorney. Call 847-488-0889 to schedule a free, confidential consultation today.

Sources:

https://www.wired.com/story/carpenter-v-united-states-supreme-court-digital-privacy/

https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf

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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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search, Kane County criminal law attorneyMany drivers have had the sickening feeling of seeing flashing lights in their rearview mirror and knowing that they were being pulled over. There is much confusion surrounding what police officers are and are not allowed to do. This confusion has not been lessened by the recent events regarding the shooting of unarmed citizens by police officers and the following media frenzy. The right to be free from unreasonable governmental searches is guaranteed by the Constitution’s Fourth Amendment, and it is important for you to understand your rights as a driver.

Probable Cause

The short answer to the question "Can the police search my car during a traffic stop?" is that it depends. Generally, a police officer needs a warrant in order to search someone’s property, but cars are different. A police officer cannot legally search someone’s car as a normal part of a traffic stop for a minor infraction such as speeding or a broken taillight. However, an officer can search a car if he or she has probable cause to do so.

Probable cause can include when illegal substances are in "plain view." Plain view means that an officer can search your vehicle if he or she sees an illegal substance (such as drugs) through the windows of the car. The officer may also be able to search the car if he or she smells drugs, including marijuana smoke. If an officer has reason to arrest a driver, he or she has the right to search the car after the arrest. This is called "search incident to arrest." Police officers may also search a driver’s car if they have reason to suspect that the driver has been involved in a crime. This could include seeing blood in the car or on the driver, or other evidence of a likely crime.

"Exigent circumstances," also allow an officer to search a vehicle. Exigent circumstances are "circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts."

Contact a Kane County Criminal Defense Lawyer

If you or someone you love is facing criminal charges any evidence obtained in an illegal search may be inadmissible in court. That is why it is important for you to seek quality legal assistance. Contact an Elgin criminal defense attorney for a free consultation today.

Sources:

https://openjurist.org/728/f2d/1195/united-states-v-mcconney

http://www.businessinsider.com/what-rights-do-you-have-when-pulled-over-2013-11

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