Illinois Sample Letter to Judge concerning Order for Seizure of a Mobile
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FAQ
The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.
A search involves law enforcement officers going through part or all of individual's property, and looking for specific items that are related to a crime that they have reason to believe has been committed. A seizure happens if the officers take possession of items during the search.
It came into existence with the 1914 decision in Weeks v. United States and became completely applicable to the States in the 1961 case of Mapp v. Ohio.
If there was a warrant, the accused bears the burden to show that a search warrant was invalid. If there was not a warrant, the prosecution bears the burden to prove that the police's conduct did not violate the accused's rights to be free from unlawful searches and seizures.
Federal judges obviously can issue warrants and there are magistrate judges, district court judges, appellate court judges and of course we have justices of the Supreme Court.
The State bears the burden to demonstrate that it was entitled to conduct the search or seizure under an exception to the Fourth Amendment's warrant requirement.
Both the fourth amendment of the United States Constitution and article I, section 6, of the Illinois Constitution of 1970 protect individuals from unreasonable searches and seizures. U.S. Const., amend. IV; Ill.
The defense attorney usually bears the burden of providing that the search was illegal or that the confession was coerced.
