Weakening the 4th amendment . . .

If the Obama administration gets its way, federal law enforcement and local police agencies will be able to dig into cell phone location data and find YOU without a warrant any old time they please. The 4th amendment protects against unreasonable search and seizure by the government, and two important questions raised are:

• is there a valid expectation of privacy at all in such information;
• if so, is this an unreasonable search?

What does this have to do with DUI in Illinois? 4th amendment issues are regularly tested in DUI arrest situations. You see, almost all DUI arrests involve investigations that are immediate in nature, and happen without any warrant. Getting a warrant slows things down and requires that a judge hear why an investigation needs to go further - the judge determines whether "probable cause" exists to allow a search. This makes on-site investigation difficult, but provides strong protection to rights of the person being investigated. The police would rather not wait, and so, most investigations proceed without warrant. A warrantless search is presumed to violate 4th amendment protection, unless probable cause can be demonstrated.

The practical result is that police typically investigate with an eye towards establishing probable cause (as opposed to investigating with an eye towards exoneration). They'd rather arrest now and ask questions later than slow down and ask careful questions.

Add to this the fact that government is always seeking to expand their ability to "get around" the restrictions of the 4th amendment, and you have your connection between DUI and the Justice Department's desire to track anyone they please by cell-phone without a warrant.

Everything is connected, and the possibility for abuse of power increases every time the power to invade the rights of the individual are pushed further down the chain of command. Let's hope the Courts push back.

Search and Siezure - Landmark case from SCOTUS

It isn't often a landmark case on the issue of search and siezure comes down from the Supreme Court on the side of the defense, but that's just what happened Monday in the case of Arizona v Gant.

In case after case, and certainly in many Illinois DUI arrests, officers freely search the vehicle of the suspect in custody without regard to any Constitutional considerations, and some of those DUI cases become Illinois criminal defense matters as well. The old rule was fairly put as - if you are under arrest, your car is subject to search under the theoretical need of the officer to secure the scene and maintain "officer safety". In other words, if you were in cuffs in the back of the squad car, the officer could make sure there wasn't a knife or gun in the glove compartment so that you couldn't exit the locked squad car, uncuff yourself, knock the officer over the head, grab the gun and shoot him. Obviously a very likely scenario.

The new rule makes more sense. When the police arrest someone in a vehicle, the officer can search the vehicle only under one of two circumstances. In very basic terms, those two circumstances are:

• The suspect might in some way gain access to the vehicle; or
• The officer is searching for evidence related to the reason for the arrest.

Other than that, searching a vehicle is a non-starter. In Arizona v Gant, the police arrested Gant for driving with a suspended license, and promptly locked him safely away in handcuffs in the back of their squad car. They then rifled through his car and found cocaine in a jacket on the seat of the vehicle, and charged him with possession of a controlled substance. The Supreme Court acted to protect the sanctity of the Fourth Amendment to the United States Constitution and to protect you.
What do you think about Arizona v Gant?