Probable Cause and Search Warrants in Illinois

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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants 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 4th Amendment

If you watch any of the crime dramas on television, you know that police officers must have a warrant to enter and search a person’s home unless that person provides his or her consent to the entry, or some kind of emergency exists. Recently, Illinois criminal defense attorney Thomas Glasgow was involved in a case where the police entered and searched a home without a warrant and subsequently arrested his client simply for protesting the intrusion.

The instigation for the police entering the home was a bitter child custody dispute. One divorced parent reported that the children were in danger. When the police knocked at the door, his client did not answer the door. When his client refused to answer the door, the police kicked in the door and arrested his client for resisting arrest, despite finding no credible evidence of child endangerment after searching the home.

As a former State Attorney and experienced Illinois criminal defense lawyer, Thomas Glasgow took on the case and carefully examined the entire circumstances surrounding the warrantless entry, search and arrest. He determined the warrantless entry and search were legally insufficient and filed a Motion with the Court. Persuaded by his argument, the Court found the police officers lacked probable cause for the abrupt intrusion and that there was no consent or exigent circumstances. As a result, the Court dismissed the case against his client for lack of merit.

What is Probable Cause?

The Fourth Amendment to the United States Constitution, as well as Illinois law, both clearly provide a firm guarantee that all people have the right to be free in their homes from unreasonable searches and seizures by the police except in very limited – so-called “exigent”- circumstances. This means the police cannot just kick in the door and enter. Usually, they must first obtain a warrant by showing probable cause to a judge or magistrate.

Probable cause means the police have sufficient reliable information that a crime has been committed in the premises or that evidence of that crime will be found there. If the police can make a probable cause showing, then a judge or magistrate is duty-bound to issue a warrant allowing the home to be entered despite the protestations of the parent or occupant.

When Can the Police Search a Home without a Warrant?

Warrantless searches are permitted only if the occupant of the home consents to the search or there are “exigent circumstances.” This rule applies with equal force to encounters arising out of child custody disputes and sometimes groundless accusations of child abuse or child endangerment that accompany them. In other words, the fact that children may be involved does not justify the police in breaking the rules.

When a parent freely consents to a police officer searching his/her residence, no probable cause or warrant is necessary. Free consent is judged by the totality of circumstances and lack of knowledge of the right to refuse a search will not in itself invalidate consent. However, it is not unusual for police officers to intimidate their way into the home, or just plain barge in. In these cases, the search may be deemed unlawful unless it falls within some other exception, such as the aforementioned “exigent circumstances.”

The phrase "exigent circumstances" is shorthand for a group of related exceptions to the probable cause and search warrant requirements. But for the police to meet the "exigent circumstances" exceptions, they must show that their actions were truly necessary to protect a citizen’s life, health or property.

The following are examples of recognized “exigent circumstances” that may justify a warrantless search of a home:

  • Police have probable cause to believe that a suspect inside the home will escape if they do not enter;
  • Police enter the home in “hot pursuit” of a suspect;
  • The severity of a crime committed or the imminence of one being committed create an emergency justifying warrantless entry; and
  • There is probable cause to believe that evidence incident to a crime will be destroyed if the police do not act by entering the home and seizing that material.

In Illinois, a law enforcement officer may also take a child into protective custody if he/she has reasonable cause to believe a child may be in danger. However, there must be a judicial review within 48 hours of the incident (not including weekends and holidays). Ill. Ann. Stat. Ch. 705, 405/ 2-5,/ 2-9 (Smith Hurd 1992 & Supp. 2000).

Contact an Experienced Illinois Defense Lawyer

Cook County is one of the largest court systems in the world. Navigating it can be daunting, especially when a person’s introduction to it begins with a warrantless search of his or her home, or the summary removal of his or her children. In such cases, it is imperative to retain the counsel of an experienced Illinois criminal defense attorney to ensure that your rights are fully protected. Contact Glasgow & Olssontoday to schedule a free initial consultation by phone at 847-577-8700 or fill out the online contact form.