As a general principle, American citizens are constitutionally protected against unreasonable searches and seizures by government agents (including local law enforcement officers). If a search is to be conducted, it must be done pursuant to a search warrant, unless a valid exception to the search warrant requirement exists. This right has its foundation in the Fourth Amendment to the United States Constitution, which provides as follows: "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 on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". This verbiage is the bedrock for the manner and circumstances in which warrants are to be obtained, and searches are to be conducted pursuant thereto.
Where a search and/or seizure is conducted by a law enforcement officer, in the absence of a warrant, and where no valid exception to the warrant requirement exists, any drugs, contraband or other purported "fruits or instrumentalities" of criminal activity will the "suppressed". This means that the unlawfully obtained evidence cannot be used against the accused person in any criminal trial that ensues based on that evidence. Suppression of evidence requires that the accused person's criminal defense attorney file what is called a "motion to suppress". Once the motion is filed with the clerk of court, a hearing is set and the State of Florida must prove, by a preponderance of the evidence, that the warrant was supported by probable cause or, in the absence of a warrant, that the search nonetheless passes constitutional muster because a valid exception to the warrant requirement exists (for further reading, see the Defensive Motions section of our website). The law on search in seizure, at both the federal level and here in the state of Florida, is comprehensive. This post presents a general overview of the more common issues associated with search and seizure jurisprudence, including search warrants, and the recognized exemptions to the warrant requirement.
- What is a search?
As set forth above, the Fourth Amendment precludes, at least in part, unreasonable searches. You should know that the principles articulated in its provisions apply only to searches conducted by government agents,and not those done by private citizens or organizations who aren't acting on behalf of the government. For example, if a police officer went through the passenger compartment or trunk of your vehicle, that would be considered a search for the purpose of invoking Fourth Amendment protections and scrutiny. If the officer lacked a warrant, if you were not already under arrest, if you did not consent to the search, or if the officer had no basis to believe that drugs or contraband were located inside, then any drugs or contraband found pursuant to that search would be suppressed. If, on the the other hand, your step mother went through your car, found drugs inside, and called the police, a different result would occur. Here, the search was conducted by someone other than a government agent, or someone acting on behalf of the government (assuming, of course, step mom isn't a police officer acting in her official capacity). In this latter scenario, the activity that resulted in the drugs or other contraband being discovered in your vehicle would not be considered a search, within the meaning of the Fourth Amendment, and therefore, the drugs or contraband would not be suppressible.
A search occurs when a government agent infringes or intrudes upon premises, property, information, or even conversations wherein the accused person would have a "reasonable expectation of privacy". Most of us would expect privacy from government intrusion into our homes, offices, vehicles, telephone conversations, e-mails, financial documents, medical records, and smart phones. If there is a reasonable expectation of privacy in the premises or property intruded upon, then a warrant must be obtained, or a valid exception must exist.
- What is not a search?
Not all government intrusions are considered "searches" within the meaning of the Fourth Amendment. It has been held, for example, that certain conversations are not subject to constitutional protections. As a general principle, the Fourth Amendment protects conversations where no party to that conversation consents to surveillance and/or recording. The government could not, for example, listen in on your cell phone conversations with other private citizens unless they had a search warrant to do so. These protections don't typically apply, however, where at least one party to the conversation consents to either surveillance or recording by government agents. This is the basis upon which law enforcement officers can lawfully listen in on, and record, controlled phone calls between either themselves or a confidential informant, and the the target of the investigation. In a recent federal heroin trafficking case, I received numerous recorded phone conversations between my client and a confidential informant which were highly inculpatory. Even though my client (obviously) did not consent to the disclosure or recording of those discussions, there was no way to suppress that evidence because the confidential informant did consent. As a St. Petersburg criminal defense attorney, I have seen similar situations in sex crimes; the police will often have the alleged victim or another involved individual make a "controlled" phone call to the accused person in the hopes that the the accused will make an incriminating statement that can, many times, be used to make the case.
Although a person has a reasonable expectation of privacy in his or her private residence and its curtilage, he or she does not have an expectation of privacy in any "open fields" appurtenant thereto. This principle is typically referred to as the "open fields doctrine". In some instances, the court may need to decide whether the area searched is an open field or part of the curtilage. Because the the former is not constitutionally protected and the latter is, the outcome could be very different based on the court's determination in that regard.
Aerial surveillance, it has been held, also does not typically constitute a search. If the curtilage of your residence can be viewed from the publicly navigable airspace above it, any expectation of privacy from that vantage point is lost. That the curtilage is enclosed with a fence would not likely change the result. While law enforcement would probably need a warrant to look over the fence from the ground, the same cannot be said if that officer were to look down from above while traversing the property in a airplane or helicopter.
Dog sniffs also do not typically constitute a search as long as the K-9 officer overseeing the sniff is in a place where he or she has a right to be. For example, a dog sniff of luggage at the airport would not be considered a search within the meaning of the Fourth Amendment. If, on the other hand, the sniff occurs at the roadside after a routine traffic citation is issued, and there is an unreasonably lengthy delay between the issuance of the citation and the arrival of a K-9 officer, there may be a basis upon which to have any drugs or contraband found inside the vehicle suppressed. While this presents a bit of a different issue than the airport example, it conveys the point that your St. Petersburg criminal defense attorney should always carefully consider the circumstances in which incriminating evidence is obtained. Often times, there is more than one way to skin a cat, and all potential bases for raising a constitutional challenge to the manner in which evidence was obtained should be thoroughly explored.
Inspection of discarded garbage also does not constitute a search. It has been held routinely that a person does not have a legitimate expectation of privacy in the contents of his or her trash once it has been left for collection at the bottom of the driveway, or otherwise disposed off of the premises. As a Pinellas County state prosecutor, I saw many search warrant applications that were based, at least in part, on the discovered contents of discarded trash, and many criminal successful criminal prosecutions that were based on that same evidence. The key word here is "discarded". If the trash bags are in the garage, or at the top of the driveway (for example), a different scenario is presented and a different result would likely occur. The garage and curtilage of the premises, once again, is a constitutionally protected area; if trash in either location were to be searched, a warrant (or valid exception) would likely be required.
- What is a seizure?
The Fourth Amendment also prohibits unreasonable "seizures" of either persons or property. While searches affect an individual's right to privacy, seizures affect an individual's possessory right to the object of the search. A person must have a reasonable expectation of privacy in the item or items that have been subject to confiscation by law enforcement to invoke Fourth Amendment scrutiny. A person does not have an expectation of privacy in items that have been abandon or discarded. The trash at the bottom of the driveway example (above) illustrates the point here: in that scenario, the accused person has no privacy interest in the contents of the trash bags (which serves to justify the search) and has no possessory interest in any items seized because they have, at that point, been discarded or abandoned. Another example may be where law enforcement seizes a soda can or cigarette from a suspect, after he or she tosses it away, for purposes of obtaining a DNA sample from residual saliva. These samples can often be tested against samples left at a crime scene to identify the suspect as the actual perpetrator.
A seizure of the person occurs where the officer makes an arrest, or detains the person briefly for further questioning. If the person is not free to leave, then a seizure has occurred and must be based on either (1) "probable cause" (for an arrest); or (2) "reasonable suspicion" that the suspect is, was, or is about to be, involved in some sort of criminal activity. You should know that there is nothing precluding the officer from approaching you and asking you questions or for consent to conduct a search of your person. This is called a "consensual citizen encounter". You are, however, under no legal obligation to oblige. In the absence of "probable cause" or "reasonable suspicion", you are free to simply walk away, and without consequence. For further reading on this topic, see our prior blog post entitled The Three Levels of Police/Citizen Encounters.
- What is a search warrant?
A search warrant is an order issued by a "neutral and detached" judge or magistrate that authorizes law enforcement to search an otherwise constitutionally protected domain, including a house, office, car, or conversations, as part of a criminal investigation. As set forth in the language of the Fourth Amendment (above), the warrant must be supported by "probable cause". In Brinegar v. United States, the U.S. Supreme Court held that "probable cause" exists where "the facts and circumstances within the officer's knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed".See 338 U.S. 160 (1949). A law enforcement officer may develop probable cause, sufficient to support an application for a search warrant, based on personal, first-hand observations, on reliable information provided by other individuals, or both.
The search warrant must also describe, with particularity, the place to be searched and the items that are to be seized. As former Pinellas County State Prosecutor, and a St. Petersburg criminal defense attorney, I can tell you that law enforcement officers describe the places to be searched and items they are seeking to obtain in painstaking detail.
The facts set forth in the application for a search warrant must be sworn to, either verbally, in writing, or both. The oath or affirmation requirement is met by including a sworn affidavit or attestation clause in the warrant application.
Law enforcement officers are authorized to search only for the items specifically enumerated in the search warrant. If, for example, the warrant authorizes officers to search a person's residence for cocaine, the officers would be permitted to look in dresser drawers, in an effort to locate any narcotics that may be found there, but they could look in dresser drawers for a stolen flat screen television set. If the search exceeds the scope of authority conveyed by the warrant, then any items seized pursuant thereto may be suppressed.
The police may not, as a matter of course, search all persons found at the location where the warrant is executed. Persons found on the premises during the execution of a search warrant may be searched only where officers have reasonable grounds to suspect that such persons are engaged in, or otherwise connected to, the unlawful activities that are the subject of the search. In the absence of that nexus, the search would be unlawful and any incriminating evidence obtained pursuant thereto would be subject to suppression.
- Exceptions to the Warrant Requirement
Consistent with U.S. Supreme Court precedent, courts throughout the state of Florida have identified a number of circumstances in which a law enforcement officer may conduct a search or seizure in the absence of a warrant. This section presents an overview of some of the more common scenarios in which warrantless searches have been justified.
- Terry Stop
In Terry v. Ohio, the United States Supreme Court detailed the circumstances in which a law enforcement officer may conduct a brief, investigatory stop or detention of a person without a warrant (remember, the Fourth amendment precludes not only unlawful searches, but also seizures. These brief detentions have come to be known as "Terry stops". To justify a stop, the officer must have reasonable suspicion that the person being detained is involved in some form of criminal activity. "Reasonable suspicion" is a lesser standard than "probable cause" (which the officer must have in order to effectuate a full-blown arrest). While probable cause is not not required to conduct a stop, an officer's "mere hunch" of involvement in criminal activity is not enough. An uncorroborated anonymous tip is never enough to warrant to warrant a Terry stop.
The officer may also conduct a pat down of the detained person's outer clothing if the officer has reasonable suspicion that the person is in possession of illegal contraband or a weapon. If the officer can identify an item, through a pat down of the outer clothing, as contraband (based on his or her training and experience), then a more intensive intrusion, such as reaching into the pockets, would be justified. This is known as the "plain feel" doctrine. Depending on what is found, the officer may, at that point, develop probable cause to make an arrest. If, on the other hand, the officer does not suspect that the person is in possession of weapons or narcotics, and fails to develop probable cause that a crime has been committed, the officer must allow the person to leave.
- Search Incident to Arrest
Florida courts have routinely held that a police officer is justified in thoroughly searching a person upon making an arrest, including that area within the person's immediate reach (or "wingspan"). The rationale for justifying a warrantless search under these circumstances is based on the prospect that an arrestee could otherwise destroy evidence (by swallowing it, for example), or obtain a dangerous weapon. There are limits, however. If, for example, the person was arrested in his or her kitchen, it is unlikely that the police would be permitted to search in drawers and cabinets as those areas would not be accessible to the accused. This would especially be the case where the accused person was handcuffed behind his or her back. If areas beyond the arrestee's immediate reach are to be searched, a warrant is required or some other exception to the warrant requirement must exist to justify it.
- Automobile Searches
A person is deemed to have a lesser expectation of privacy in his or her vehicle than his or her home. One of the main reasons for this is that a vehicle is "readily mobile", unlike a house or office. Thus, where an officer believes that contraband may found inside a vehicle, the driver would be long gone in the time it took for the officer to obtain a search warrant based on his or her observations. This would also afford the suspect more than sufficient time to destroy or discard any incriminating evidence in his or her possession. The reduced expectation of privacy is also based on the fact that automobiles are not typically a repository for personal items and effects, the same way a home or office is.
If, during a traffic stop, the officer observes contraband in plain view (e.g. from a vantage point where the officer had a right to be), then the officer can seize that item without a warrant. This may justify a more thorough search of the vehicle, including the passenger compartment and perhaps the trunk.
If the officer has probable cause to believe that contraband will be found in a particular location, the search of those areas will likely be justified. Probable cause can be based on what the officer sees (plain view), what he or she smells, or statements made by one or more occupants of the vehicle (e.g. that drugs or other contraband may be found inside. Probable cause to search a certain part of the vehicle does not necessarily mean that the officer has probable cause to search the occupants. To justify a search of the occupants, the officer must have probable cause to believe that narcotics or other illicit items will be found on their person.
As many of you are likely aware, a police officer can conduct a search of the vehicle, including any containers therein, if he or she detects the odor of burnt or fresh marijuana emanating from inside. In this instance, the police may also search the vehicle's occupants without a warrant.
If an occupant of the vehicle is arrested, the officer may not, as a matter of course, search the person's vehicle. Being arrested for driving on a suspended license would not, in and of itself, justify a search of the vehicle's passenger compartment or trunk. A search of the vehicle would, however, if the area searched was within the arrestee's immediate grabable area, the officer had reason to believe that evidence connected to offense of arrest could be found therein, the person consented to the search (see below), or the search was done pursuant to impoundment inventory protocols.
Vehicle inventory searches do not invoke Fourth Amendment protections because they are not, at least in theory, done for the purpose of ferreting out evidence of a crime. Rather, the purpose of an inventory search is to account for the arrestee's personal belongings, prior to the vehicle being impounded so that those items can, at some point, be returned. They are also done to protect the officer from an assertion that certain items were lost or stolen during the inventory process.
For further reading on this topic, see our prior blog post entitled "They Searched My Car. Can They Do That??"
- Search of a home
A search of a person's home, in the absence of a warrant, must be based on probable cause, and sufficient "exigent circumstances" must exist to justify the warrantless entry. For example, a police officer would be justified in following a person fleeing from the commission of a crime into his or her residence if the officer believed that the person was likely to destroy evidence of the crime's commission in the time it would take to secure a warrant. Absent bona fide exigent circumstances, a warrant must be obtained to justify government intrusion into a private residence. It is difficult to image a place where an individual would have a greater expectation of privacy (other than, perhaps, the contents of his or her own body).
- Consent
A person can waive his or her Fourth Amendment right against unlawful search and seizure by consenting to it. The officer does not have to have probable cause or reasonable suspicion to ask for consent, or to receive it. Consent must, however, be freely and voluntarily given. If there is any evidence of coercion, then the warrantless search is unlawful, unless there is some other exception to the warrant requirement that serves to justify it. That a person was not aware of his or her right to refuse consent does not matter.
Many probationers agree to waive search and seizure as part of their sentence. Because the plea must be entered freely and voluntarily, and with full knowledge of its consequences, the person's consent is deemed valid. Waiver of search and seizure gives the probation officer, or any other law enforcement officer, the right to search the probationer's person, home, and effects with or without probable cause, and with or without a warrant. For additional reading, see the "Probation Violations" section of our website.
- The Exclusionary Rule
The exclusionary rule is a judicially created doctrine that serves as a remedy for violations of the Fourth Amendment's prohibition on unreasonable searches and seizures. It is, essentially, an enforcement mechanism. To reiterate, evidence obtained without a search warrant, and in the absence of a valid exception to the warrant requirement, is subject to suppression. In many instances, the state is not in a position to proceed to trial where crucial evidence is suppressed. For example, the prosecutor could not proceed against a person for possession of cocaine where the cocaine, and any reference to it, was deemed inadmissible by the presiding judge. In such circumstances, the state would have little choice but to nolle prosse, or "drop" the charge (unless he or she decided to appeal the court's ruling, but that is beyond the scope of this post).
- The "Fruit of the Poisonous Tree" Doctrine
The "Fruit of the Poisonous Tree" doctrine is an extension of the exclusionary rule and mandates that all ancillary evidence obtained, pursuant to the initial unlawful search or seizure, must be suppressed as well. If, for example, a police officer conducted a traffic stop without a lawful basis to do so, and thereafter conducted a DUI investigation, all evidence obtained in that investigation would be subject to suppression. This would include the officer's purported observations of impairment, any incriminating statements the accused person purportedly made, his or her performance on field sobriety exercises (if he or she elected to perform them) and any blood, breath, or urine test results obtained (if she or she elected to submit to the requested test). Because the original stop was "bad", any evidence obtained in connection with it, is "fruit of the poisonous tree" and, in all likelihood, inadmissible.
- The Good Faith Exception to the Warrant Requirement
The United States Supreme Court created a good faith exception to the principle that evidence obtained pursuant to defective search warrants must be suppressed. The exception also applies to irregularities in the manner in which the warrant was executed. The Fourth Amendment is designed, at least in part, to prevent willful police misconduct and where it can be shown that the police acted in good faith, otherwise suppressible evidence may be admitted nonetheless. There are limitations, however. If for example, the police made willful misrepresentations in the affidavit in support of the warrant, or if the affidavit is so lacking in probable cause that no reasonable officer would have relied on it, the protections of the good faith exception are lost.
This exception also applies to warrantless searches. If for example, a police officer receives seemingly credible information from a reliable source that a person has committed a felony, the officer locates drugs incident to an ensuing arrest, and the information that justified the arrest turns out to be wrong, the person may still be subject to prosecution for possession of the contraband because the officer was acting in good faith.
- The "Inevitable Discovery" Doctrine
In some instances, evidence that is subject to suppression may be deemed admissible nonetheless if the state can prove, by a preponderance of the evidence, that the contraband in question would have been discovered regardless of the unlawful search that initially uncovered it. For example, if a police officer lawfully detains a person on the street (a Terry stop), reaches into the person's pocket without a lawful basis to do so, and finds a baggie of heroin, that item would be subject to suppression. If, however, a backup officer discovered that the person had a warrant for his or her arrest while this was taking place, the otherwise suppressible heroin baggie would likely be admissible because the person would have been arrested regardless and the drugs would therefore, have been inevitably discovered (as part of a search incident to a lawful arrest).
- Standing
To challenge an unlawful search or seizure, the person's own Fourth Amendment rights must have been violated. It is only for a violation of your expectation of privacy in a home, car, office, or other domain that you may assert your right to challenge that violation. For example, if the police conducted an unlawful search of my neighbor's house, I would not be in a position to challenge the legal propriety of that search because it is not my house, I have no expectation of privacy in it and, therefore, I lack standing.
- Conclusion
In accordance with the Fourth Amendment, warrantless searches and seizures are unreasonable. To justify a search or seizure, a search warrant must issue, or some recognized exception to the warrant requirement must exist. Search warrants must be issued by a neutral and detached magistrate, must be supported by probable cause, and must describe with particularity the place to be searched and the items that are to be seized. Warrantless searches may be justified, but must be based, at least, on probable cause, or done pursuant to consent that is freely and voluntarily given. Evidence obtained without a valid search warrant, and in the absence of an exception, is suppressible. If however, law enforcement acted in good faith, suppressible evidence may be admitted nonetheless. To challenge an unlawful search or seizure, it is your rights that must have been affected, if you are to have proper legal standing.
As always, I hope this post was helpful. Specific questions should be directed to an experienced St. Petersburg criminal defense lawyer.