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Search And Seizure In Florida, Part II

by | Aug 30, 2022 | Criminal Law

Last week we went over some of the limits the law places on police in Florida regarding searching and seizing the property of private individuals. This is the second part of that series, and we shall discuss other concerns and issues surrounding Florida’s search and seizure laws and what they mean for you.

Reasonable Expectation Of Privacy

Another situation in which law enforcement does not need a warrant to seize contraband is when the individual whose property is being searched does not have a reasonable expectation of privacy. The United States Supreme Court has interpreted the Fourth Amendment to not cover what a person “knowingly exposes to the public,” such as items in the passenger compartment of a vehicle, in an outdoor garden, or on the curb for trash pickup. Nor does it cover areas distant from the home, such as an open field or a wooded area.

However, items within the individual’s home or within the immediate yard (known as the “curtilage” of a home) do fall within the reasonable expectation of privacy. So too are items seen with tools like telescopes.

Conversely, public records do not fall within the reasonable expectation of privacy, nor do one’s individual characteristics, such as voice, handwriting, hair, fingerprints, blood, nor DNA.

Exigent Circumstances

Emergency situations encountered by law enforcement also fall outside the Fourth Amendment’s warrant requirement. For instance, if police have a report of a violent crime underway within an individual’s home, they need not approach a judge and obtain a warrant. So too if they observe a suspect from outside the home destroying contraband or evidence. In these cases, law enforcement may breach the door of the home and enter.

Hot Pursuit

Law enforcement chasing a suspect who goes from a public place to a private residence need not apply for a warrant to follow that suspect into the private residence. They may search the private residence for the missing suspect.

Arrest

In the event of an arrest, law enforcement may search the arrested person’s body and immediate surroundings without a warrant. This “search incident to arrest” may be carried out for the safety of the officer, and any evidence or contraband found in this search is considered to be legally obtained.

“Stop And Frisk”

The tactic of “stop and frisk” instituted by New York City law enforcement has garnered a great deal of media in the past decade. Stop and frisk was born in the Supreme Court case Terry v. Ohio, in which the justices determined that a brief detention and pat-down (known as a Terry stop) was legal if the officer doing the search had reasonable suspicion that the person was involved in criminal activity.

However, NYPD took a Terry stop one step further by simply stopping and frisking individuals for whom they did not have an articulable suspicion of criminal activity. Police were also performing more than a cursory search during these stops, and investigators determined that the targets of these stops and frisks were almost always Black and Hispanic individuals. As a result, the courts halted the practice and admonished the city’s law enforcement against the practice.

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