The right of people to be secure from unreasonable searches of their persons, homes, and other property constitutes one of our most important individual rights. Although the Fourth Amendment typically protects citizens against unreasonable searches unless the officer has a valid warrant signed by a judge, courts and lawmakers have carved out a litany of exceptions to this important safeguard against overzealous law enforcement agents, officers, and detectives intent on entering and searching your home, vehicle, or person. Because the legality of a search often constitutes an important issue in Florida criminal prosecutions, we have provided an overview of some important facts that you should know if a law enforcement officer attempts to persuade you to conduct a search.
When a law enforcement officer seeks a search warrant, he or she will submit an affidavit and supporting documents to a judge who will review the application. Generally, the application must set forth information that would lead a reasonable person reviewing the evidence and circumstances to establish the commission of a past, ongoing, or future crime. The warrant also must clearly state the items to be seized and the locations to be searched. The judge evaluates the facts in the affidavit to determine whether probable cause exists to approve the application. The officer must articulate facts and circumstances that provide a legal basis for the officer’s suspicions. The concept of probable cause often can be an area of bitter disagreement between the prosecution and defense.
Beyond the probable cause requirement, law enforcement officers and judges must adhere to strict legal standards and procedures regarding the issuance, scope, and execution of a search warrant. When a law enforcement officer runs afoul of these rules, the person whose home has been searched might have a basis to challenge the validity of the entire search or to exclude certain evidence obtained during an unlawful search. Although a judge may have approved a warrant, this does not necessarily mean the search was lawful. An appeal of the validity of the search might result in a determination that the warrant should have been denied.
Although a full list of the requirements governing search warrants in Florida is beyond the scope of this blog, we have provided a few examples of other search warrant requirements under Florida state law. These examples include:
- The search warrant must be executed within ten (10) days of issuance.
- The officers cannot search in places that could not contain any of the items indicated in the warrant.
- The search must be limited to the location indicated in the warrant.
- An inventory of the property seized must be provided to the person subject to the search.
When officers do not have the proper documentation, conduct a search beyond the scope of the search warrant, or otherwise fail to abide by the rules applying to a valid search, evidence obtained as a result of the search might be subject to exclusion.
If officers do not have a warrant, the prosecutor will oppose defense efforts to exclude evidence directly recovered during the search, as well as other items not enumerated in the search warrant, as “fruit of the poisonous tree.” The rational behind this rule is that the police should not be placed in a better position because they conducted an unlawful search.
While there are a multitude of exceptions to the warrant requirement, the officer still must have probable cause to conduct the search even if an exception applies. However, one exception deserves particular attention. Many people confronted by the police in their homes provide law enforcement and the prosecutor “a gift” by giving consent to a search. Police officers tend to be physically intimidating, and this intimidation factor is accentuated by the uniform, badge, gun, and the power of arrest. Sadly, a person who consents to a search without legal advice could end up severely damaging his or her defense. The bottom line is that a person confronted by an officer who comes to their door should never give permission for a search without seeking legal advice from an experienced Florida criminal defense attorney.
When officers lack a warrant and cannot get consent, they might attempt to rely on other exceptions to the warrant requirement, such as:
Exigent Circumstances: This exception is essentially an “emergency exception” to the warrant requirement. The officer will argue that the search was necessary for the benefit of public safety or to prevent the destruction of evidence.
Hot Pursuit: If an officer is lawfully pursuing a suspect, the person fleeing cannot escape simply by winning a race to his or her front door. The officer can claim that entry into the premises was justified because the officer was in “hot pursuit.”
Plain View: If officers are lawfully present, they can seize evidence that is open and visible from the officer’s position.
Search Incident to Arrest: When officers make a lawful arrest, they can conduct a search of your person for weapons and to preserve evidence.
Vehicle Search during Traffic Stop: If the officer has reasonable suspicion (a standard lower than probable cause), the officer can search the vehicle for his or her safety and to preserve evidence.
These are some of the most relied on exceptions to the warrant requirement used by prosecutors to oppose a motion to suppress evidence obtained during a search, but this is merely a small sampling of the many exceptions that an experienced criminal defense attorney must be prepared to address.
If you or a family member face a police officer at the door of your home, or when you are pulled over for a traffic stop, you should never give consent to a search without seeking legal advice. Even if the search is warrantless and the officer lacks probable cause, consent from the person subject to the search might “cure” errors or misconduct committed by the officer. If you speak to an experienced Florida criminal defense lawyer, the attorney can analyze the evidence used to obtain the warrant, the warrant application, and the execution of the search to identify grounds to challenge the search and suppress incriminating evidence seized by law enforcement.