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How to Refuse a Search When Stopped by Illinois Police

Posted by Dominick R. Dolci | Nov 08, 2019 | 0 Comments

So, imagine this scenario: you are driving along the Will Rogers Highway, following the rules of the road, up until you mechanically change lanes without signaling before doing so. There happens to be a police officer and it happens to be in the middle of the night. The sirens go on. You hesitate because you had a drink earlier and have a small amount of marijuana in your glove compartment and recreational marijuana is not yet legal. But you pull over, knowing the consequences will be worse if you don't.

You are nervous when the officer taps on your window. Your hands may shake a little bit or you may take too long to answer a question. The officer then asks: have you had anything to drink tonight. You did earlier, so you again hesitate. You want to be honest but your gut is telling you not to say anything. Follow your gut. And so you do, meaning you don't say anything.

The officer shines his flashlight in the vehicle and asks you to step out. He asks you to perform field sobriety tests, which you do and you pass. But the officer remains suspicious. He asks you to take a preliminary breath test. You do, and you pass. And yet the officer is still skeptical. So, the officer asks to check your vehicle. It is at this point you freeze. The marijuana. But you don't know if you can refuse or not, and if so, how do you properly refuse – if there's such a thing.

Know this: you can refuse. Know also this: there's no standard way to refuse but there are some things to keep in mind. 

Refusing a Search during an Illinois Traffic Stop

You can and should always refuse a search. Officers typically need a search warrant when you do not consent to a search of your person or property. There are two things to keep in mind about searches and the police:

  1. The police are not asking to search your vehicle for the public good, but rather they ask to search your vehicle to look for contraband or any other evidence that may warrant an arrest.  
  2. The police will not advise you that you have the right to refuse – they are not obligated to inform you like they are obligated to inform you of your Miranda warning if under an arrest.

So, when an officer asks to search your vehicle or person, make sure you clarify with the officer first that:

  1. you are or are not under an arrest; and 
  2. they have or do not have a search warrant.

When you are under an arrest, then the police have the right – incident to an arrest – to search your person and your vehicle. If you are not under an arrest and the officer does not have a warrant, then he or she cannot typically conduct a search warrant.

Politely tell the officer that you do not consent to a search. After you state this, the officer must obtain a warrant, but the warrant – if properly issued – will not be provided unless enough evidence is granted to support a search warrant.

Understanding that Traffic Stop Searches are Different than Other Searches

When it comes to traffic stops versus other situations (e.g., at your home), the rules regarding searches are slightly different. If an officer has probable cause to arrest you, then he or she can search your vehicle. Further, the officer can look inside the vehicle to see what may be in plain sight regardless if there is probable cause. In the above situation, if the officer had smelled marijuana, then that may have been enough probable cause to search your vehicle.

In all situations, it is crucial to your case to ensure that you consult with a criminal defense attorney in DuPage or Cook County who understands searches and seizures and how to respond to unlawfully executed ones. It could make all the difference in the outcome of your case. 

About the Author

Dominick R. Dolci

Managing Partner Dominick R. Dolci focuses his practice on criminal defense litigation and civil litigation. Dom graduated from John Marshall law school in 1990. He began his legal training in the Cook County States Attorneys Office where he worked at 26th and California. He then transferred ...


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