Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Illegal Searches and Seizures

The U.S. guarantees certain rights and freedoms to citizens that cannot be taken away by individual states. One of these fundamental rights is the guarantee of security and privacy against unjust search or seizure by authorities.

Unfortunately, this is one of the most frequently violated civil rights in the country. The ACLU reports that the people who are most frequently stopped and searched are either underage teenagers, men from the minority communities or immigrants. Usually, these are the people who are least aware of their constitutional rights.

State Legislation

The Illinois law permits a police officer to stop any person if it is reasonably believed that he or she;

  • Is about to commit a crime,
  • Is in the process of committing a crime,
  • Has committed a crime.

The person is not obligated to answer any questions from the police officer or show identification. The officer is allowed to perform a limited search of the person for evidence of the suspected crime. This is known as a Terry stop.

The stop and search rule has a limited application for vehicles as well. The police is authorized to ask for the driver’s license if there is reasonable justification for it.


Illegal search and seizure is strictly prohibited by the US Constitution. The fourth amendment states that citizens should be free from unreasonable searches and seizures by the Government. This includes searches performed by the police and law enforcement agencies. However, the constitution does not protect people against searches performed by private individuals. In order to have a valid defense, the search must have been performed through a “state action”.

The law allows a person to object to a search and seizure through something called standing. A person can object to search of their person, vehicle, home or any other property where they have a legitimate expectation of privacy. The standing cannot be used where the property in question is reasonably expected to be part of the public domain. For instance, a person cannot object to search of their trash can placed on the street for collection.

Any evidence obtained through an illegal search or seizure is inadmissible in court. Under most circumstance, the law enforcement agencies require a warrant in order to search a private premises.

Possible exceptions for a search warrant are when items intended for seizure are expected to be destroyed or removed from the state while it takes time to get a search warrant issued.

In the state of Illinois, a search warrant must be executed within 96 hours of issue before it expires.

Examples and Court Cases

Let’s consider a couple of practical examples. While out on his patrol, a police detective observes two strangers walking back and forth in front of a store while staring at the windows and muttering to each other. They are joined by a third man who leaves eventually. The officer begins following the two men on suspicion.

A couple of blocks away from the store he confronts the three men, identifies himself and asks for their names. The three men mumble something incomprehensible. The officer spins them around and pats down their side clothing. He feels a pistol in the overcoat of one of the suspects.

He orders the three men into a different store and takes out his revolver. He orders the man with the overcoat to remove it and seizes a revolver from his overcoat pocket. The three men are taken to court and charged with carrying concealed weapons.

The defense asked the judge that the revolver should be suppressed as the search was illegal.

The prosecution moved that the guns were seized in a legal search during a lawful arrest. Although the court rejected the prosecution’s theory of lawful arrest, they admitted the weapon on the grounds that the officer had reasonable cause to believe that the defendants were acting suspicious. The court concluded that the interrogation was justified and the officer had the right to pat down the outer clothing of the suspects for his own protection as there was reasonable cause that they were carrying a weapon.

The court specifically distinguished between an investigatory stop and an arrest as well as a frisk of the outer clothing and a full-blown search. It was held that the officer had the right to stop the defendants on suspicion. The defendant Terry was convicted of carrying a concealed weapon and sentenced 1 -3 years in prison.

In a different case a police officer was driving behind a certain Mr. Cummings. The police officer suspected that the vehicle’s registration had expired.

A computer check showed that the registration was valid however, the car’s female owner had an outstanding warrant. The police officer pulled the vehicle over. Upon approaching the driver, he immediately realized that Mr. Cummings could not be the owner as he was male. The police officer still asked for Mr. Cummings license. As it turned out, the license had been suspended on a previous violation. Cummings was arrested and charged with a Class 4 felony for driving without a valid license.

The Illinois Supreme Court dismissed the case on the grounds of illegal search and seizure. The Court ruled that stopping the car was justified as the car’s owner had an outstanding warrant. However the computer check had also revealed that the owner was a female. On approaching the car, the officer should have immediately realized that the driver was not the owner and stop should have ended immediately. Since the driver had not violated any traffic regulations up until that point, the officer had violated Mr. Cumming’s fourth amendment rights against unreasonable search and seizure.

Possible Legal Defenses

Illegal search and seizure can often be used as a valid defense in cases where evidence has been obtained through illegal means. The law enforcement officers can perform a search for many reasons, and quite often they do it for no reason at all which is contrary to the constitutional protections.

A defendant who is unaware of his or her legal rights would not know what evidence to challenge during a trial. The courts do not make a point of challenging the evidence brought forward by the prosecution unless the defense specifically asks for it.

This is where a legal defense team can make a difference. We have seen many cases where key pieces of evidence get dismissed by the court because they were obtained through illegal search and seizure. When a key piece of evidence is removed, the prosecution’s case may completely fall apart.