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Issues in Florida Search and Seizure Law

A lot of people probably understand generally that they have certain rights guaranteed by the Constitution. People are often quick to say that they know their rights. Having a general understanding of one’s rights is beneficial to guard against governmental overreaching. Still, most people do not know what their rights are or the type of protection they provide. Worse yet, some law enforcement officers either do not know the constitutional restrictions on their interactions with people, or they ignore those limits and do what they want.

The Fourth Amendment to the United States Constitution protects us from unlawful governmental intrusion. It protects our persons, places, and things. The United States Supreme Court, almost 60 years ago, ruled that not every interaction with a law enforcement officer implicates the Constitution. A police officer can walk up to a person in public and start a conversation. The individual is free to engage with the officer or walk away. However, if the officer exerts his or her apparent authority to command someone to do something, the individual’s Fourth Amendment rights become an issue.

Which Police Conduct Implicates the Fourth Amendment?

Not every police action carries Fourth Amendment protections. The question courts ask is two-fold. First, the courts ask whether the person had an expectation of privacy in the thing to be seized and place to be searched. Second, the courts ask, if the person has an expectation of privacy, is the person’s privacy belief “objectively reasonable?” The reasonableness of a person’s objective, but not subjective view, is analyzed in terms of whether the society believes that the expectation of privacy should be recognized.

If the answer to either question is “No,” then a search has not occurred in the Constitutional sense, and the police have not violated the individual’s rights. However, a “yes” answer to both questions means that the police and prosecution must prove that the officer’s actions satisfy Constitutional requirements.

Terry Stops”

A “Terry stop,” as defined by Terry v. Ohio, 392 US1 (1968), occurs when a police officer intrudes on a person’s freedom to move voluntarily. A Terry stop can happen in a variety of circumstances. A Terry stop can occur when a police officer pulls a car over, or when a deputy stops a person on the street to ask questions.

To lawfully execute a Terry stop, the police officer must have more than a hunch that the individual the officer encountered and ordered to stop committed a crime. The officer must have at the moment of the stop, a rational understanding that the person just committed a crime, could commit a crime in the near future, or is presently committing a crime. The belief the officer must have cannot be a “gut” feeling or a hunch. Instead, the officer must base the conclusions on objective information. Officers shall use training and experience to color his or her understanding of the situation, but the officer cannot randomly guess. Once the police satisfy the reason for their inquiry, they must let you go. For example, if an officer stops you for speeding, once the police write you a ticket, they have to let you go. They cannot keep you at the location of the stop for a longer time to see if you are involved in additional criminal activity without a legal basis to do so.

Law enforcement agents can intrude further if he or she perceives further unlawful activity. Most police and sheriffs’ departments train officers on how to identify an armed suspect or what a drug deal looks like to the observer. Officers will use this training to search further, which is called pat-and-frisk.

Officers have no authority to shake a person down unless they possess specific and articulable information that the individual encountered by officers is armed with a dangerous or deadly weapon. During a car stop or street encounter, officers are looking for “furtive” movements that indicate to them that the person is armed or is concealing a contraband.


Police make arrests in two ways. The first is the traditional arrest by placing a person in custody. The police can do so only if they have enough evidence to form probable cause to believe the suspect committed a crime. Probable cause is a much higher standard required of law enforcement than reasonable suspicion. Still, it is much lower than beyond a reasonable doubt.

A show of police force disproportionate to the level of proof an officer has can result in an arrest, even if the police officer does not formally handcuff someone. For example, if a sheriff’s deputy confronts a person on the street and then places that person in the patrol car without any information that the individual committed a crime, then the police have arrested the individual without probable cause.


Consent is valid only when freely and voluntarily given. Consent given under duress is not valid consent. However, a person can always consent to a search. Police can search a cell phone, car, pat you down, search your home, or baggage with your consent. Police are always free to ask for permission to search. Consent, however, should not be freely given. Arguing in court at a later time that you did not willingly give consent because of police coercion is an exceedingly difficult burden to sustain.

Search Warrants

Under federal Constitutional law, a seizure in the absence of a search warrant is per se unconstitutional unless, as discussed previously, the government proves one of the exceptions to the search warrant rule applies. Under Florida Statutes §933.02, a magistrate can issue a warrant upon a showing of probable cause for stolen property, and property used to commit a crime, evidence of a felony, property held to violate the prohibition on the sales of a particular item, and laws preventing cruelty to animals.

The investigating officer must file an affidavit spelling out the probable cause to search the place requested for the item sought with particularity. A search warrant not supported by probable cause is a general warrant which is prohibited by the Constitution.

Exclusionary Rule

The failure of a law enforcement agent to obtain a search warrant supported by probable cause, or produce evidence to justify acting without a warrant will result in suppression of the evidence, as ordered by the Supreme Court’s decision in Mapp v. Ohio, 367 US 643 (1961). Accordingly, evidence seized unlawfully cannot be admitted at trial against the accused. Any evidence reasonably flowing from illegally seized evidence will not be admissible as the fruit of the poisonous tree, as discussed in the seminal case, Wong Sun v. U.S. 371 US 471 (1963).

Musca Law: Criminal Lawyers to Protect Your Fourth Amendment Rights

Call Musca Law’s Florida Search and Seizure lawyers today at (888) 484-5057 to learn more about your Fourth Amendment rights if you are charged with a possessory crime or the police seized evidence from you. Often the best way to defend a case is to go on the offense and move to suppress evidence seized by law enforcement. Musca Law has over 150 years of combined experience with drug crimes. Call today!

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