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Archive for the ‘search warrant’ tag

Challenging a Search Warrant

March 7th, 2019 at 3:44 pm

warrantDuring a criminal trial, the prosecution’s case often rests on evidence seized by law enforcement officers during a search. In order for that search to be lawful, the owner of the property must voluntarily agree to the search, or law enforcement officers must have a valid search warrant. When police officers have a search warrant, the owners of the property must never interfere with the search. However, this does not mean that the search cannot be contested in the future.

Challenging a search warrant during a trial is a very common defense for those accused of committing a crime. If the defense can prove a search was unlawful, any evidence obtained during that search is deemed inadmissible in court. This can lead to the entire case being dismissed.

So, how does one challenge the validity of a search warrant? In Rolling Meadows, there are three possible ways to do it.

Unlawful Items Seized

With a search warrant, law enforcement officials must indicate the exact property they plan to search, and the evidence they are looking for. When they conduct the search, they are only allowed to take the property specified in the warrant. If they find evidence of another crime, or evidence such as electronic data that was not listed on the search warrant, they cannot seize that property.

The Fourth Amendment to the U.S. Constitution protects digital devices from illegal search and seizures. In order to be seized, the search warrant must explicitly state officers are searching for these items.

False Sworn Affidavit

When law enforcement officials are trying to obtain a search warrant, they must sign a sworn affidavit. The Illinois Constitution and Criminal Code allows not only police officers, but also private citizens, to provide these sworn affidavits. An affidavit states a person’s case for the search of a certain area.

When this affidavit contains false information, this is sometimes grounds for challenging a search warrant. Defendants that believe the affidavit contains false information can petition the court for a Franks hearing. These hearings are named after a landmark case in 1978 in which Franks was the defendant.

During a Franks hearing, the defendant is required to prove the signer of the affidavit knowingly or intentionally provided false information, or that they had a reckless disregard for the truth. It is not enough to show an officer was simply negligent or made a mistake.

Warrant Staleness

When law enforcement obtains a search warrant, they are required to search a property within a reasonable time frame. This is due to the fact that in many cases, valuable evidence is likely to be lost, hidden, or destroyed before the search is conducted.

For example, if officers obtained a warrant to search a home looking for drugs, they should conduct the search shortly after receiving the warrant. If they wait too long the evidence could be consumed or destroyed.

Warrant staleness can often provide a strong defense when challenging a search warrant. However, there are times when it is not as effective. For example, digital files are designed for longevity and so, warrant staleness may not provide a valid defense for crimes such as child pornography.

Let a Qualified Rolling Meadows Criminal Defense Attorney Handle Your Case

There are several ways to challenge a search warrant in court, but those accused of committing a crime should never attempt to argue those reasons on their own. A skilled Rolling Meadows criminal defense lawyer will know the law surrounding searches and seizures and will apply it to any case that may involve an unlawful search. If you have been accused of a crime, or you believe law enforcement conducted an illegal search of your property, contact the Law Offices of Christopher M. Cosley today at 847-394-3200. We will ensure you are treated fairly and will fight for your rights in court. Call today for your free consultation.

 

Source:

https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1278&context=casefiles

Can Police Search Cell Phones without a Warrant?

May 22nd, 2014 at 7:30 am

Chicago criminal defense attorney, search cell phones, search warrant, right to privacy, warrantless police searches, privacy protectionsThe law of warrantless search and seizure and other limits on police activity has been argued and debated in criminal cases for over a hundred years. Now, that argument is extending to the use of technology in modern times. According to a recent news article, the United States Supreme Court is considering two cases about warrantless police searches of defendants’ cell phones and the legality of such actions.

What is a Cell Phone?

Each case currently before the Court portrays a cell phone in completely opposing lights. Whether the Court considers a cell phone a criminal’s tool or an individual’s virtual home will directly affect their decision and the outcome of the cases in question. The defense is arguing that warrantless searches of cell phones upon arrest violates the right to privacy in the digital age.

The government is arguing that the searches are constitutional, reasoning that cell phones are no different than any other possession found on a person when they are arrested, and that search incident to arrest in the absence of a warrant has long been upheld in high court cases. Taking it a step further, the government is also saying that cell phones act as critical tools in the commission of a crime.

The Right to Privacy

In the broader legal world, some are urging the Court to consider a broad view on privacy protections that are implicated by police having access to powerful devices that are capable of storing volumes of personal information. Cell phones are powerful, and are only becoming more so as technology advances.

Those on the privacy side of the argument are saying that cell phones should be afforded the same protections as citizens’ homes when it comes it police intrusion, requiring a warrant that is supported by probable cause. However, the legal analysis is more complicated than that, due, in part, to the numerous exceptions that have been identified over the years for police behavior when arresting a suspect. Police generally have more leeway for warrantless searches in these situations in order to ensure officer safety and to prevent evidence from being destroyed.

A Resolution is Expected

Both state and federal courts have struggled with this issue, in some cases coming to opposing rulings. The impending rulings from the Supreme Court are expected to provide a resolution regarding whether cell phones will receive special protection. It is also possible for the Court to come up with a narrow ruling that applies in some circumstances but not others. One thing is certain: the rate at which technology is developed and changes will be a key consideration in reaching a decision in these cases.

Criminal Defense Attorney

Although the Supreme Court has yet to extend privacy protections to cell phones, there are numerous other safeguards in place to protect a criminal suspect or defendant from police intrusion. If you have been charged with a crime and believe your privacy protections may have been implicated, an experienced criminal defense attorney can discuss your case with you and protect your rights. Contact the Law Office of Christopher M. Cosley today to schedule a consultation. We serve clients in Cook County and surrounding areas.

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 / freedigitalphotos.net

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