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What Are The Search And Seizure Laws For Weapons In Illinois?


The general rules for searches and seizures come directly from the United States Constitution. The Fourth Amendment states that people have the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and that they shall not be violated and no warrant shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. The Fourth Amendment comes up frequently in gun and weapon cases because those cases are often the result of a police search or seizure. For instance, if law enforcement pats a person down or searches a person’s house, vehicle, or purse, there is a potential opportunity to file a motion with the court to suppress the evidence and have a hearing in order to determine whether or not the search was illegal.

Although the Fourth Amendment states that the general rule is that a warrant is needed in order to search anything, there are exceptions. For example, a search may be made without a warrant if there is probable cause or exigent circumstances. However, this can be tricky at times because probable cause is subject to interpretation by different judges.

How Common Are Illegal Search And Seizures Pertaining To Weapons In Illinois?

Gun cases and aggravated unlawful use of weapon (Aggravated UUW) cases are situations where search and seizure laws often come into play. This is because when police find a gun or a weapon, it is almost always as a result of a search. Perhaps the police searched a vehicle during a traffic stop, or conducted a stop and frisk on an individual and discovered a gun. Anytime a gun or weapon is discovered as a result of a search, there is a potential to use the search and seizure laws as an advantage in getting the case dismissed. I have gotten more gun and UUW cases dismissed using the 4th Amendment laws than any other way.

What Does The Court Consider In Determining Legitimate Expectation of Privacy In A Search and Seizure Case Pertaining To Weapons?

If a person has a legitimate expectation of privacy in regards to a certain area or personal belonging, then that person would have a right to complain if the police conducted a search in that area or of that belonging. For instance, there is generally a legitimate expectation of privacy that applies to our homes, vehicles, luggage, etc. However, there are certain places that the courts have held as exempt from the legitimate expectation of privacy. For example, there is no legitimate expectation of privacy in regards to the contents of a garbage can on a street or driveway. Therefore, if the police were to discover incriminating evidence while searching through a person’s garbage, that evidence would have been obtained legally. In addition, public places and fields generally do not enjoy a legitimate expectation of privacy. The courts will use legal case law precedent to help decide whether or not there was a legitimate expectation of privacy. However, there is not always a bright-line rule.

What Sort Of Evidence Do Police Generally Use To Justify Search And Seizures?

Most law enforcement officers are honest and play by the rules, but some of them break the rules by creating probable cause for a search after the search has already been conducted. Consider a situation in which the police have no legitimate basis to stop or search someone, but they proceed anyway just to see what they can find. I call this “going fishing.” If the search results in the discovery of contraband such as a gun or a weapon, I refer to this as “catching a big fish.” Fabricated probable cause that I have encountered include, among others, an odor of cannabis, a plain sight observation of the gun, or the observation of someone making furtive movements within a vehicle. By creating fictitious probable cause, it at least preliminarily justifies the search and makes it more difficult to be contested.

Can Police Only Search For Items Specifically Listed In The Warrant?

Based on the United States Constitution, a warrant must specify with particularity the places to be searched and the items to be seized. But, like most areas of the law, there is no definite rule, and each case will revolve around its specific set of facts, as well as the judge’s interpretation of the law. For example, it would probably be specific enough for a warrant to say that the police may search someone’s house for weapons. However, if the police have a warrant to search a house for weapons, and during that search they decide to turn on the computer and discover child pornography, they have clearly exceeded the scope of the warrant. Thus, there would be grounds to file a motion to have that evidence or that contraband suppressed. Now, consider a situation in which the police have a warrant to search a person’s house for weapons, and while doing so they happen to discover narcotics. Assuming that the narcotics were found in a location where weapons could have feasibly been found, the Court could find that law enforcement would have operated within the scope of the warrant.

For more information on Search & Seizure Laws For Weapons, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (815) 290-9170 today.

Donald N. Macneil, Esq.

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