Asked in Criminal Law and Constitutional Law for Minnesota

Q: Can a cop use items found after i was arrested to show probable to get a search warrant for my blood?

I was arrested for suspicion of DWI after being pulled over for a third brakelite being out. Can the police use incriminating evidence found only after the search incident to arrest? I would think they would had to have the search warrant prior to arresting me or at the very least the probable cause to secure one.

3 Lawyer Answers
Jonathan Matthew Holson
Jonathan Matthew Holson
Answered
  • Criminal Law Lawyer
  • Rogers, MN
  • Licensed in Minnesota

A: Of course they can. There is no obligation that law enforcement ignore evidence developed before the search incident to arrest. The probable cause basis for the arrest can differ from the probable cause to support a warrant application to get a search warrant for a blood draw. I am assuming that this resulted or will result in a DWI arrest. Get an attorney forthwith to represent you.

William Bailey agrees with this answer

Thomas C Gallagher
Thomas C Gallagher
Answered
  • Criminal Law Lawyer
  • Minneapolis, MN
  • Licensed in Minnesota

A: Police can use lawfully obtained evidence to support a request for a search warrant. But if they obtain evidence illegally; that illegal evidence alone would not support "probable cause" for a judge to sign a search warrant. In the context of a DWI case, police often get evidence by following and observing a driver, mostly before arrest, but also after arrest. Whether the stop was illegal, or the arrest, could potentially impact whether a search warrant based on evidence illegally obtained was also illegal.

William Bailey agrees with this answer

William Bailey
William Bailey
Answered
  • Criminal Law Lawyer
  • Bloomington, MN
  • Licensed in Minnesota

A: You are mistaken. They can use evidence obtained following your arrest to secure a search warrant. However a lawyer may be able to help you find other things to challenge. You should set up a consult with one. Many of us offer a free consultation.

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