When is it Necessary for a Police Officer to Have a Search Warrant?

James O. Davis, Jr.'s Criminal Law Legal Blogs

Licensed for 18 years

Attorney in Jacksonville, FL

A
police officer cannot just pull you over and search you or your things without
getting permission from you or by getting a warrant. Sometimes it might seem
otherwise but do not be fooled.

The founding
fathers of this country were greatly concerned about the government having the
power to conduct warrantless searches and the potential for abuse of this
power. This abuse of power to search private citizen’s or their property is
what inspired the Fourth Amendment of the U.S. Constitution. Under this
amendment, police may not conduct searches without first obtaining a warrant.
In Florida however, there are several exceptions. Florida law established four
categories of circumstances entitling a police officer to conduct a search
without a warrant.

Consent
If a citizen
gives an officer consent or permission to search, the officer may then search
without a warrant. In this case, it is most important to make sure the search
is voluntary and free of coercion. The person may decide to refuse consent and
if this is the case, he or she must make certain the officer clearly
understands.  Under the law, the police are not required to inform the
person that consent to search is voluntary and that they may tell the officer
“no”. In addition, neither does the law forbid the officer from using deception
to gain consent, so long as the deception does not border on coercion.

In some
cases a third party may be allowed to give an officer consent to search without
a warrant. Normally, a third party consist of anyone who has “common authority”
over the property in question. Examples of a third party include a roommate,
spouse, or parent. Even though a landlord “owns” the property, they cannot give
consent to search a tenant’s home.

Plain View
Sometimes an
officer can conduct a search without a warrant if they see something in “plain
view” that is illegal. This by itself however, does not necessarily justify a
warrantless search. For example, If an officer spots something they think is a
stolen painting through the window of a car or home, seeing is not enough for a
warrantless search. If however, the officer already has a warrant to search for
evidence of drugs and while searching for drugs, discovers the painting, the
painting can then be legally seized.  

Emergency
Circumstances

This is
another valid reason to conduct a search without a warrant. Essentially, an
emergency exist in a scenario that is considered by the police unreasonable to
wait for a warrant. If someone inside your home calls for assistance or if the
police is in “hot pursuit” of a suspect that enters your home, then they are
allowed to enter the home without a warrant.

If the
police, while inside your home, see illegal drugs in “plain view”, they are at
liberty to seize the drugs. The police are also able to enter without a warrant
if they see that evidence is about to be destroyed. An example would be if the
police come to your door, just to talk and while talking, another officer
happens to see someone inside running to flush drugs down the toilet or burn
counterfeit money, this would be enough to allow the officers to enter the
residence without a warrant.

Vehicles
A vehicles
transitory or mobile nature can also give an officer reason to conduct a
warrantless search but the officer must have probable cause to make the stop
and can only search limited areas of the vehicle.

If you are
searched without a warrant and arrested, the authorities will no doubt claim it
was legal and pursuant to one of the above exceptions. The need for you to hire
a criminal defense attorney is critical to answer and challenge the warrantless
search as well as to ensure that the law was followed on all counts.

A
police officer cannot just pull you over and search you or your things without
getting permission from you or by getting a warrant. Sometimes it might seem
otherwise but do not be fooled. Jacksonville Criminal Defense Attorney, James Davis explains warrants in this article.

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