How Do Search and Seizure Laws Apply in Drug Possession Cases?

 Posted on June 25, 2021 in Criminal Law

In order to secure a conviction on charges of drug possession, the State of Illinois generally needs evidence of the drugs in question. In most cases, this evidence is obtained through a search of the offender’s person or property. However, these searches are not permitted under just any circumstances. If you are facing drug possession charges, you should understand when Illinois law enforcement is—or is not—justified in executing a search.

When Can Law Enforcement Get a Search Warrant?

The Fourth Amendment to the U.S. Constitution provides protection from unreasonable search and seizure. In effect, this means that law enforcement cannot legally search you or your property on a whim. They must have a reason to do so, and in most cases, they must also have a warrant issued by a judge. A judge will only grant a warrant if law enforcement can produce a written statement given under oath that shows probable cause of finding evidence of a crime. In order to obtain a warrant, law enforcement also must be specific as to the person or property to be searched, as well the types of evidence that may be seized.

There are also rules for how Illinois law enforcement must execute a search warrant. For example, the warrant must be executed within 96 hours of its issuance, with the officers making note of the specific time of execution. Usually, officers must make an attempt to announce themselves to any occupants of a property before carrying out the warrant, but the issuing judge may waive this requirement under certain circumstances. In any case, law enforcement is authorized to use force to execute a warrant if necessary.

Searches Without a Warrant

There are certain situations in which an officer can execute a search and seizure of property without a warrant, including:

• A search incident to arrest - An officer is permitted to search the immediate area for dangerous weapons or evidence when making an arrest.

• A consent search - An officer can search a person or their property if the person gives permission.

• Seizure of property in plain view - If officers see obviously incriminating evidence in a place where they have a legal right to be—for example, if illegal drugs are visible in the passenger seat during a traffic stop—the officer can lawfully seize it.

• A search under exigent circumstances - With probable cause, an officer can make a search without a warrant if there is reason to believe that there is an immediate risk of harm to a person or the destruction of evidence.

Contact a DuPage County Criminal Defense Attorney

If you have been arrested for drug possession and the prosecution has evidence against you, an experienced Wheaton, IL criminal defense lawyer can help you determine whether that evidence may have been obtained through an unlawful search or seizure. If so, we can help you suppress that evidence to prevent it from being used against you. Contact Davi Law Group, LLC today at 630-580-6373 for a free consultation and learn how we can assist with your defense.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072500050HArt%2E+108&ActID=1966&ChapterID=54&SeqStart=11400000&SeqEnd=13000000

https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does-0

https://www2.illinois.gov/osad/Publications/DigestbyChapter/CH%2043%20Search%20and%20Seizure.pdf