Tuesday, January 11, 2011

CAN THEY SEARCH MY CAR? YOUR RIGHTS DURING A TRAFFIC STOP (BEFORE AN ARREST)

You were a little preoccupied while driving home late one night and missed a stop sign. Unfortunately, a police officer spotted you and pulled you over. After taking your license, the officer asked you to step out of the car. Suddenly, he began questioning you and searching your car. At this point, he turned up some marijuana seeds, and you are now on your way to police lock up.

Can the officer do that? What are your rights?

Generally, police can search your car without a warrant and before an arrest as long as they have probable cause to believe your car contains illegal articles such as drugs, weapons or burglary tools. Police can search anywhere in your vehicle, even by opening containers. Be advised that making “furtive”movements may be enough to trigger that probable cause, particularly if you look like you’re trying to hide something.

Unfortunately, recent U.S. Supreme Court decisions have chipped away at the rights of drivers to guard against police searches. The Supreme Court recently held that you do not have a legitimate expectation of privacy in contraband. For example, police are now allowed to have a trained dog sniff your car for narcotics during a traffic stop without your consent because you have no privacy right in possessing illegal substances.

Furthermore, under recent Supreme Court law, police do not need a reasonable suspicion of criminal activity in order to question you about topics unrelated to your traffic stop as long as this questioning does not unduly prolong the time you are stopped. Before this decision, police could not change the fundamental nature of a traffic stop by questioning you on unrelated matters without this reasonable suspicion, but this protection was overturned.

If you are stopped by police, an officer should, but may not always, ask if he or she can search your car. You should always refuse any request to search. The officer may continue the search even without your consent. Your refusal, however, may later help your attorney bring a motion to quash the evidence turned up by the search.

You should also refrain from speaking to the police or answering any questions except about your name and address.

Once you have been arrested, the police may search the parts of your car that you could access if they reasonably believe they may find evidence related to the crime. If you are arrested for speeding, the police may lack the justification they need to search your passenger compartment, but if you are arrested for DUI, the police can search for alcohol.
If you have questions about this or another criminal law matter, please do not hesitate to contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com

See our related post on our DUI blog at Can the Police Search My Car? Your Rights During a Traffic Stop?".

(Besides Skokie, Matt Keenan also serves clients in the communities of Arlington Heights, Buffalo Grove, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Highland Park, Kenilworth, Morton Grove, Mount Prospect, Niles, Northbrook, Palatine, Park Ridge, Rolling Meadows, Schaumburg, Wilmette and Winnetka.)

Wednesday, January 5, 2011

“THE POLICE ARE AT MY DOOR!”: WHEN THE POLICE HAVE A SEARCH WARRANT

You have just settled down to watch your favorite TV show, when there is a knock at the door. You ask who it is, and hear “Open up, police!”

Do the police need a warrant? What are your rights?

Under Illinois law, the police must request a search warrant from a judge to search your home for evidence except under certain circumstances. The police do not need a warrant if they have probable cause, and there are exigent circumstances, such as an emergency or the reasonable belief that someone inside needs aid. Other exigent circumstances include how recently the crime was committed, whether the suspect is armed or whether the suspect might escape if not quickly apprehended.

After police obtain a warrant, they must “knock and announce” their presence, unless they reasonably believe that doing so would be dangerous to themselves or others or would allow evidence to be destroyed.

Once the police knock at your door, you may ask to see the warrant. Any warrant must be particular and describe exactly what the police are looking for. The police are not allowed to go on a fishing expedition. Look to see what type of evidence they are seeking. For example, if they are looking for a stolen car or a suspect, they may not search your medicine cabinet, since the items they are seeking are too large to fit that small a space. The warrant must describe your premises reasonably correctly. If they have a warrant for your house and you have an unattached shed, they may not search the unattached shed.

The police, however, may take what they see in plain view. If they see drugs lying on the table, they can seize that evidence even if they were looking for a stolen TV or a person. One California case even held that police may look for marijuana plants growing in a fenced-in yard by flying over in an airplane!

If you have questions about a search warrant or other criminal matters, please contact Matt Keenan at matt@mattkeenanlaw.com or 847-568-0160.

(Besides Skokie, Matt Keenan also serves clients in the communities of Arlington Heights, Buffalo Grove, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Highland Park, Kenilworth, Morton Grove, Mount Prospect, Niles, Northbrook, Palatine, Park Ridge, Rolling Meadows, Schaumburg, Wilmette and Winnetka.)