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Search And Seizure In Florida, Part I

by | Aug 25, 2022 | Criminal Law

Florida’s law enforcement has many tools at its disposal for investigating crime. However, police and investigators have strict limits on what they may or may not do in the course of an investigation. Following is a discussion of police search and seizure and the authority and limitations law enforcement has in the state of Florida.

Basics

The root of police search and seizure limitations can be found in the Fourth Amendment to the Constitution, which reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment was prompted by memories of British authorities who entered colonists’ homes seemingly on a whim to look for evidence of crimes for which the homeowner had not been charged.

Reasonable Searches

The Fourth Amendment allows law enforcement to make “reasonable” searches of others’ property. What that means in practice is that searches must only occur if law enforcement has an articulable reason for believing certain contraband would be found on the property to be searched. Typically police must make a showing of this reasonability to a judge before a legal search may be carried out.

Probable Cause

In order to execute a legal search, law enforcement must show probable cause to a judge beforehand. Probable cause is when police can show that facts and circumstances known to them would make a reasonable person believe that a crime was committed at the location to be searched or that evidence of a crime may be found if that place is searched.

Search Warrant

Upon proving probable cause to a judge, the judge will issue a search warrant. A valid search warrant will authorize a limited search that is specified in the warrant to look for items to be seized that are listed in the warrant.

Plain View

If contraband or evidence of a crime is not listed in the search warrant, it may still be seized under some circumstances. One such circumstance is if the evidence is in plain view. If evidence is visible to law enforcement without them having to move another object to see it, such evidence is in plain view and no warrant is necessary.

Protective Sweep

Another exception to the warrant requirement is one rooted in safety. A brief protective sweep by law enforcement is legal in order to find any dangerous individuals on the property.

Consent

If an individual on the property who has authority to consent to a search of it gives law enforcement that consent, they do not need a search warrant to execute that search. Note that it is perfectly legal to refuse to give consent to a search if law enforcement does not have a search warrant. In fact, we highly suggest refusing to give such consent!

Look for part 2 next week!

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