When Does a Police Officer Need to Have a Search Warrant?

By: James Davis

The power of the government to conduct warrantless searches was of great concern to the Founders, and the potential for abuse of the power to search a citizen’s person and/or property was the inspiration for the Fourth Amendment to the U.S. Constitution. Under this rule, police generally may only conduct searches if they first obtain a warrant. However, there are several exceptions. In Florida, the law has established four general categories of circumstances where police officer may conduct a search without a warrant.

Officers can search without a warrant if a citizen consents to the search. Police officers may ask permission to conduct a search, and if they obtain consent, they may proceed without a warrant. If a police officer conducts a legal warrantless search, chances are it was a consent search.

It is vital to determine if the search was voluntarily and free of coercion. The person may refuse to consent to the search and, if the person so desires, should clearly state his or her lack of consent to the officer. Unfortunately, the law does not require police to inform that consent is voluntary and that the person is free to tell the police “No.” Furthermore, the law does not forbid the police from using deception to obtain consent, as long as their actions do not amount to coercion.

In some situations, third parties may give police consent to conduct a warrantless search. Generally, the third party must have what’s known as “common authority” over the property the police want to search. These people may include, as examples, a spouse, roommate, or parent. A landlord, though, cannot consent to the search of a tenant’s home.

Plain View
In some cases police can conduct a warrantless search if they spot something illegal in their “plan view.” But, a police officer’s spotting illegal substances in “plain view,” is not, by itself, enough to justify a warrantless search. For example, a police officer’s spotting what they think is a stolen painting through a window is not enough for the police to search without a warrant. If, however, the police had a valid warrant to search for evidence of money counterfeiting, and discover the painting during that search, they can legally seize the painting.

Exigent Circumstances
Exigent (emergency) circumstances are another valid basis for a warrantless search. Essentially, exigent circumstances exist in any scenario where it is not reasonable to expect the police to wait on a warrant before acting. If a person calls for assistance for inside your home, or a suspect of whom the police are in “hot pursuit” enters your home, they may enter the home without a warrant. While inside if they see a bag of illegal drugs in plain view, they may seize the drugs. Also, if they see evidence that is about to be destroyed, they may proceed without a warrant. For example, if the police look through a window and spot a person inside the home running to flush or burn a quantity of illegal drugs or counterfeit money. This would allow the police to enter legally without a warrant.

Additionally, the law allows police to conduct warrantless searches of vehicles in many cases, due to their mobile, transitory nature. While the officer may conduct the search without a warrant, he or she must still have probable cause to make the stop and is limited to certain areas of the car.

If you are arrested and searched without a warrant, it is highly likely that the authorities will claim that your sure was legally pursuant to one of these exceptions.  It is critical to get in touch with a criminal defense lawyer to challenge these warrantless searches to ensure the letter of the law was actually followed every step of the way. Contact James Davis for help with your Criminal Law case involving warrants.

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