You know you blew a stop sign, so you were not surprised when the officer pulled you over. But then the officer searched your car and found an open bottle of whiskey under the passenger seat. You are now under arrest for DUI.

Did the officer have the right to search your car? What can you do?

To search your car without a warrant, the officer must have probable cause to believe that your car contains evidence of criminal activity. The officer may also search if an item of contraband, such as open alcohol or drugs, is in plain view, but then the nature of the object as contraband must be immediately apparent.

The answer to whether an officer has the necessary probable cause can depend on how the particular facts of your case look to your particular judge. And that can be a game of inches.

For example in People v. Bailey, an officer pulled a defendant over for speeding. The officer noticed defendant had barbeque sauce in his beard and thought it odd someone could have food on their face without knowing it. Defendant moved very slowly and deliberately in retrieving his license but did not fumble. The officer attempted to distract defendant while he took out his license and testified that defendant seemed “to be staring almost through me…as if he was having a hard time focusing.” However, the officer had not noticed anything unusual about defendant’s eyes or speech. The officer noticed a sweet odor and saw a purple can, but could not tell what was in the can. The officer then searched defendant’s car, finding open alcohol in the back seat.

Under these circumstances, the court said the officer lacked probable cause for the search. The officer could not tell whether the open can in the back contained alcohol. Further, none of the officer’s observations before the search gave him probable cause. The officer did not notice glassy, bloodshot eyes or a strong odor of alcohol. The observation that defendant moved slowly and stared right through him was vague, subjective and only minimally suggestive of impairment.

Since the officer lacked probable cause, the court suppressed the evidence of the open alcohol container. But be aware that a different judge could have decided the officer had probable cause on the same facts, which is why it is important to know the tendencies of your particular judge.

If you are charged with DUI or a similar offense, contact an experienced DUI attorney immediately. An attorney may be able to present the facts of a questionable search in the light most appealing to your particular judge. Even if the police acted lawfully and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

About mdkeenan

A criminal and school law attorney with over 17 years of experience, I have successfully represented clients all over the Chicago area. My practice includes DUI, felony, criminal, misdemeanor, homicide, internet crime, retail theft, traffic offenses, cyberstalking, drug crimes, weapons violations, domestic battery and juvenile crime. I also represent families involving school cases. My clients come from all over the Chicago area including Skokie, Wilmette, Niles, Northbrook, Glenview, Evanston, Winnetka, Highland park, Northfield, Park Ridge, Des Plaines and Mount Prospect. I am a member of the ACLU and the Illinois State Bar Association. I serve as a volunteer for First Defense Legal Aid. Se habla espanol.
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