The Law Office of Brian J. Mirandola

CALL FOR A FREE CONSULTATION

47 DuPage Court, Elgin, IL 60120

847-488-0889
Subscribe to this list via RSS Blog posts tagged in warrantless search

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

Last modified on

warrantless, Kane County DUI defense attorneyAs we have previously discussed on this blog, refusing to comply with a law enforcement’s officers request for a blood-alcohol content (BAC) test subsequent to a DUI arrest will result in administrative penalties for the arrested driver. Illinois law makes it very clear that these consequences are not criminal charges but are administrative in nature and affect only state-issued driving privileges. In 13 other states, however, including neighboring Indiana, a refusal to submit to BAC chemical test is a crime and may be prosecuted. While the laws may be well-intentioned—reducing drunk driving is a good thing—they are being challenged in a matter now before the United States Supreme Court. Specifically, the Court must decide if refusing a warrantless chemical test should be punishable with criminal consequences.

Search and Seizure Laws

In virtually every other situation that involves collecting evidence, law enforcement must obtain a warrant prior to conducting a lawful search. There are two general exceptions: searches conducted for safety of the responding officer and those done to preserve evidence may proceed without a warrant. The United States Supreme Court has even ruled that such protections apply to an arrested suspect’s cell phone, holding that warrantless searches of electronic devices violate the Fourth Amendment. In 2013, the Supreme Court clarified that a warrant was also needed to mandate blood testing for BAC in DUI cases, a ruling that has become the basis for the current case.

Criminal Penalties and Warrantless BAC Tests

The major question at issue concerns criminal penalties for refusing a BAC test. Legal experts, along with lower courts, have identified that such penalties are necessarily linked with whether warrantless searches are permitted. If law enforcement is required to obtain a warrant, do so, and the suspect still refuses, criminal penalties are much more understandable. If an officer proceeds without a warrant, the suspect’s rights are much less clear.

Breath Test Options?

Several justices of the Supreme Court have expressed skepticism over the states’ claims that getting a warrant for a BAC test is too burdensome. With available technology, many believe that a warrant, in most cases, could be available very quickly. The Supreme Court also seems hesitant to lift the warrant requirement for a blood test, given the invasive nature of such testing and vast amount of other information that can be taken from a suspect’s blood sample.

Justices appear more open to the idea of allowing breath tests to continue without a warrant, as they are much less invasive. The data gathered by a breath test is also more directly applicable to the DUI investigation. The question that remains to be answered in that scenario, however, is whether refusing a breath test should subject a person to additional criminal prosecution.

DUI Representation

Here in Illinois, refusing a BAC test is not a crime but it can cause you problems in addition to those created by charges of DUI. If you are facing drunk driving charges, contact an experienced Kane County DUI defense lawyer. Call 847-488-0889 to schedule your free consultation at the The Law Office of Brian J. Mirandola today.

Sources:

http://www.usatoday.com/story/news/politics/2016/04/20/supreme-court-drunk-driving-breath-test-warrant/83286598/

http://www.scotusblog.com/case-files/cases/birchfield-v-north-dakota/

http://www.fox23.com/news/us-supreme-court-tackles-dui-laws_/230521771

Last modified on
Avvo Illinois State Bar Association Kane COunty Bar Association
Back to Top