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What Makes A Search Legal?


When America’s Founding Fathers presented the Constitution to voters for approval, many people were alarmed because, they felt, the document did not sufficiently limit the federal government’s power. After all, these people had just fought a war to rid themselves of a strong central government, so they had no desire to submit to another one.

So, to gain voter approval, the Framers proposed a Bill of Rights which included the Fourth Amendment’s prohibition against warrantless searches and seizures. This provision does more to protect the ordinary citizen from police and government intrusion than perhaps any other. It’s meaning and application to police conduct has been continuously litigated in the courts almost from the moment the ink dried.

Obtaining a Warrant

Law enforcement must convince a judge that they have probable cause to believe that criminal activity is afoot before they issue search warrants. Usually, that probable cause is based on:

  • Personal Observation: Officers are allowed to interpret the events that they see, but in the end, the warrant must be supported by evidence and not mere suspicion. Sometimes, officers spend months or years gathering evidence, and other times, as in the case of a DUI blood draw, they spend seconds or minutes attempting to establish probable cause.
  • Informer’s Tip: The Supreme Court has ruled that courts must consider the totality of the circumstances when considering whether or not a tip is reliable, such as its source, the time that officers received it, and the tip’s specificity. Paid informers, or informers who receive something else (like immunity) in exchange for their information, are closely scrutinized.

If a judge issues a warrant, it must be specific as to time, place, and item. For example, if a judge issues a warrant to look for drugs in a garage, officers cannot use it to look for weapons in the basement next Tuesday.

Search Warrant Exceptions

The Fourth Amendment only prohibits “unreasonable” searches and seizures. Therefore, if the prosecutor can prove that the search was reasonable or otherwise lawful, the warrant rule may not apply.

Although consent searches are per se reasonable, how consent was obtained and whether it was obtained voluntarily are always key considerations. In fact, the person who gives consent to search does not have to actually have this authority, as long as officers reasonably believe that the consent was effective. For example, a non-owner roommate can probably give consent to search a house, but not a locked box in the house not belonging to him.

Another common warrant exception is plain view. If officers see contraband, they do not need a warrant to seize it. An item’s visibility is one of the most common issues. If an officer must search through items or manipulate things to “see” the contraband then it is likely not in plain view.

The safety check, which is also called the exigent circumstances rule, is a related exception. If officers received information that there may be an emergency situation in a particular place — such as an unattended young child — officers may enter the building without a warrant and seize any contraband they see in plain view.

Other search warrant exceptions include safety pat-downs for weapons and the limited searches that occur after arrests.

Contact a Board Certified Criminal Trial Lawyer

Police officers do not always need search warrants, but they always must give an account for their actions. For a free consultation with an experienced criminal defense lawyer in Tampa, contact The Matassini Law Firm, P.A. Nicholas G. Matassini is board certified in criminal trial law and AV rated by Martindale-Hubbell. Since 1976 we have successfully defended all types of State and Federal criminal cases in Hillsborough County, the middle district of Florida, and nearby jurisdictions.




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