The Fourth Amendment to the United States Constitution declares that every person is free from “unreasonable searches and seizures” by the government. The men who wrote the U.S. Constitution and the Bill of Rights, brilliant and brave as they were, never defined what they believed an unreasonable search and seizure to be. The omission was intentional. The phrase provides flexibility to the government while purporting to protect the people from a threat of a tyrannical government.

Much argument has been made over the intended meaning of the phrase “unreasonable searches and seizures.” The U.S. Supreme Court interpreted the clause in terms of the language that follows it in the Fourth Amendment. The Amendment next refers to warrants and proclaims that no warrant shall issue unless the request for the warrant is backed by probable cause and endorsed under oath.

The U.S. Supreme Court justices interpreted the two clauses together. They opined that seeking warrants supported by probable cause is “reasonable” governmental conduct. Conversely, a search or seizure affected by the government, meaning law enforcement, is unreasonable on its face. However, the Supreme Court allowed the government to show that the conduct of the police fits into an “exception” to the warrant requirement. If it does, then the conduct of the government is “reasonable” and is therefore permitted by the U.S. Constitution.

Police are allowed to search and seize a person or evidence without a warrant in limited situations. The exceptions excuse the police from asking for a search warrant because the situation with which they are confronted requires immediate action. In court, the government, that is, the prosecution has the burden to prove to the court that the conduct of the police falls within one or more of the exceptions to the warrant requirement.

One such example when asking for a warrant is neither practical nor necessary is the so-called community caretaker function. The police have a continuous duty to investigate crime, and they also have a simultaneous duty to save lives. Thus, police are often called to render aid in life and death situations. When performing their life-saving duties, they do not have to ignore what they observe. Therefore, they could seize evidence of a crime they find while running into a burning building to save the residents, for instance.

The community caretaking exception to the search warrant requirement does not arise all that often, but it does happen. A savvy Florida criminal defense lawyer will be watching for this issue, along with many others, discussed below, that arise in Florida criminal cases.

Searches do not happen, in theory, without a precipitating event. Warrantless searches surface most commonly when police stop and search a car or stop and search a person because the officers suspect that a crime occurred.

Just Cause Under the Fourth Amendment to Make a “Terry Stop”

Police need a valid reason to stop the movement of another person. The police are free to ask anyone their name and their business, but unless the officer reasonably suspects or believes that the person is committing a crime, has committed a crime, or is about to commit a crime, then the officer cannot force the person to stop if the officer is following the law interpreting the Fourth Amendment. However, a law enforcement officer can pull a car over and talk to the driver if the driver committed a violation. Observing the driver violate the driving laws gives the officer reason to believe the person committed an offense, even if the offense is a civil infraction. The observation of the motor vehicle infraction gives the officer just cause under the Fourth Amendment to make a “Terry stop.”

During a Terry stop, the officer is allowed to prevent further movement of the suspect until the officer completes the reason for the stop. If the motorist was speeding, the officer is allowed to run the driver’s license, check insurance, and run a warrant check. The officer could write a ticket as well. Once that process is complete, the motorist must be let go, unless something happens during the standard investigation process that catches the suspicion of the officer.

The “Plain View Doctrine”

A police officer will look into the person’s car from the outside. The officer needs a reason to get in the car to search. However, under the “plain view doctrine,” the officer could search for evidence of a crime if the officer observes that evidence from a position the officer was permitted. Thus, a police officer could shine a flashlight into a car and observe a firearm, drugs, bloody clothing, beer cans, or other evidence of a crime. At that point, the officer is constitutionally permitted to investigate further.

The “Furtive Gesture”

Officers cannot act on a hunch, or if they do, then they need evidence to support that hunch. Even if the officer’s hunch is correct, the officer violates the constitution unless he or she possesses reasonable suspicion based on specific and articulable facts that the person is committing a crime. The phrase “specific and articulable” means that the officer cannot base his or her actions on a hunch. One way to get around the notion of a hunch is the “furtive gesture.”

A furtive gesture, which is a movement that is quick and designed to hide something, gives the officer a reason to search a car in many circumstances. An example of a furtive gesture would be the front seat passenger of a car that an officer signaled to stop ducks down and reaches under the front seat. This action would allow the officer to conclude that the passenger was hiding contraband, giving the officer reasonable suspicion to search the car.

Pat Frisk Searches Aka the “Stop and Frisk”

Pat frisks are limited searches of the outer clothing of a person. The officer must have the same level of suspicion to stop and frisk as when searching for a car. Drug interdiction officers are experts at observing what appears to be innocent behavior to the untrained person and deciding that a drug transaction took place. A simple example would be a person driving a car pulls up to a home, another person gets in, and then the car circles the block. The passenger leaves the car after the extremely short tide. Drug police call this a “meaningless ride.” The police could lawfully stop, and pat frisk the passenger for drugs because the meaningless ride is associated with drug dealing.

Similarly, officers, especially those who work in larger metropolitan areas, are experts at identifying subjects unlawfully carrying firearms. The way a person walks, the person’s hand movements, along with how clothes hang on the body are indicators that the individual could be unlawfully armed. Observations by police to that effect would allow a pat frisk of the person’s clothing for weapons.

Filing a Motion to Suppress When Property is Seized During a Warrantless Stop

An experienced Florida criminal defense lawyer will file a motion to suppress if contraband was seized after a warrantless stop. If the police violated the constitutional rights of the accused, then the judge will suppress the evidence from a trial. Practically, suppression of contraband prevents the government from proceeding to trial because they do not have any evidence of a crime.

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