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Can’t Search This

July 8th, 2013 at 4:45 pm

The fourth amendment to the U.S. Constitution is one of the most important protections against governmental intrusion. It guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In other words, the fourth amendment requires that searches or seizures be reasonable. “So, what is reasonable?” one may ask. Courts have interpreted reasonableness to require a warrant supported by probable cause.  Thus, before law enforcement officials can search something or someone, or arrest someone, they need to go in front of a judge with enough evidence and obtain a warrant.

RigsHowever, the Supreme Court of the United States has recognized certain exceptions to the warrant based on probable cause requirement. For example, in what are known as Terry stops (named after the Terry v. Ohio case), law enforcement officers may briefly detain someone and quickly perform a pat down search if the officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. These searches, however, are meant to ensure the safety of law enforcement, i.e. if the officer has a reason to believe that the suspect is carrying a weapon, he should be allowed to ensure that the person is not a danger to the officer. Terry stops, however, are not supposed to be a fact gathering expedition.

Not surprisingly, police officers have used Terry stops to gather evidence without a warrant. In People v. Sorenson, for example, the police officer pulled over a car with three occupants. After having no luck frisking the driver, the officer asked to search the backseat passenger, even asking him to take off his boots, which revealed an illicit substance. Although, at first blush it would appear that the search was not justified, the court agreed with the officer and refused to suppress the evidence obtained in the warrantless search.

Law enforcement agencies can exploit whatever constitutional loopholes they wish to, despite the protections that the fourth amendment guarantees. If you are charged with a crime, an experienced Illinois criminal defense attorney can ensure you have the full protection of the Constitution.


Image courtesy of Simon Howden /

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