Top Five Search Warrant Exceptions
One of the most important provisions in the Bill of Rights is the Fourth Amendment. Early Americans embraced this amendment because of bitter experiences under British rule. Officials used writs of assistance, which were basically blank search warrants that were often transferable, to search private property whenever they felt like doing so. Despite this resentment of warrantless searches, the Supreme Court has carved out some exceptions to the Fourth Amendment’s warrant requirement over the years.
If officers didn’t have a valid warrant and a recognized exception didn’t apply, a Tampa criminal defense lawyer can get the seized drugs or other evidence thrown out of court, under the exclusionary rule. If that happens, the prosecution usually can’t move forward, forcing the state to drop the case. To avoid that outcome, prosecutors are often willing to negotiate favorable pretrial deals, especially if the defendant has a strong Fourth Amendment violation claim.
Search Incident to Arrest
Before 2009 this search warrant exception might have been the most common one in Florida. Under then-existing law, police officers could “arrest” individuals for speeding or another minor offense, and use that “arrest” as an excuse to tear apart a car or house.
But the Supreme Court sharply limited searches incident to arrest in 2009. So, officers rarely use this exception anymore.
On a somewhat related note, officers often claim in court that they smelled marijuana at a traffic stop, and use that as an excuse to search the car. This excuse may no longer hold up in court. Hemp, which has all the same physical qualities of marijuana, including the smell, is now legal.
Assuming the stop was legal, officers may seize any contraband they see in plain view. Contraband usually means an illegal item, like a gun or drugs.
Officers must be at or near the scene. They can’t use binoculars to bring far-away items into plain view. Furthermore, this exception only applies if officers had reasonable suspicion for the traffic stop or other law enforcement contact, at least in most cases. More on reasonable suspicion below.
Today, this exception may be the most common one in Florida. Property owners, or apparent owners, may voluntarily consent to property searches.
An apparent owner is someone like a home’s occupant who answers the door. The law is a bit vague as to what questions offices must ask to distinguish among owners, residents, and guests.
Voluntary consent means pure voluntary consent. Any coercion, such as a “let me search or else” ultimatum, arguably invalidates consent. Additionally, owners may withdraw consent at any time. However, consent withdrawal is difficult for Tampa criminal defense lawyers to prove in court.
This exception doesn’t come up very often either. If officers have probable cause, they can search cars and other vehicles without search warrants. However, if officers have probable cause, they’ll usually obtain warrants, and not leave the matter to chance.
If officers have reasonable suspicion of criminal activity, they may stop people on the street, pat them down for weapons, and keep any contraband they find during that search.
Basically, probable cause is an evidence-based hunch of criminal activity. Furtive movements, like a suspect acting nervous when officers approach, aren’t probable cause. Furtive movements are, at best, only a hunch. There’s no evidence to support that hunch.
Work With a Hard-Hitting Hillsborough County Attorney
A criminal charge is not the same thing as a criminal conviction. For a free consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. We routinely handle matters in Pinellas County and nearby jurisdictions.