Search and Seizure

Broward County Criminal Attorneys are often criticized in looking for “technicalities” in order to free their clients, when in actuality, the suppression of illegally obtained evidence is the only reasonable way to ensure that Broward County police officers adhere to the constitution of the United States of America. With no penalty to law enforcement, our freedoms would quickly erode as our nation transformed into a police state.

Where an Arrest Warrant names the item to be seized with specificity, Broward County officers may seize said item, but Broward criminal attorneys caution that they are not authorized to seize anything and everything they suspect may be connected with a crime. “As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Except for the operation of the plain view doctrine, the searching officer may not search for or seize any item not listed in the search warrant. If he or she does, an appropriate motion will certainly be filed by the criminal attorney handling the case.

Both the items to be seized and the place to be searched must be described with particularity. A search warrant directed against a multiple occupancy structure such as an apartment house, must specify a particular apartment to be searched. However, search warrants may refer to the defendant’s entire premises and no mention need be made of individual rooms or floors within the residence. Although the entire premises may be searched, police officers may look only in those portions of the premises where the described seizable items could be located. For example, a search for a small quantity of drugs justifies searching any small containers found on the premises, but a search for a fugitive would not justify searching in spaces too small to hide a person. Where a criminal attorney discovers that the search conducted by officers did not seem reasonable based on the face of the warrant, an appropriate motion to suppress should be filed.

Local criminal attorneys know understand that a search warrant does not require probable cause to believe that a crime has been committed by the person whose premises are to be searched. If police have probable cause to believe that seizable items are located on the premises, they may search an innocent person’s home.

Exceptions to the Warrant Requirement – Searches Under Exigent Circumstances

Any of the “well-delineated exceptions” to the warrant clause requirement are merely specific types exigent circumstances. Search incident to arrest, hot pursuit, and temporary detentions are particular types of emergencies that occur often enough to be treated as separate exceptions to the warrant clause.

Broward criminal attorneys will tell you that an exigent circumstance is a situation in which a law enforcement officer confronts “an immediate major crisis in the performance of duty [which] affords neither time nor opportunity to apply to a magistrate.”

In Camera v. Municipal Court, the Court spoke of dispensing with the warrant requirement whenever “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.”In determining whether the delay to obtain a warrant will frustrate the purpose of the search, criminal attorneys consider three factors: (1) the time required to obtain a warrant, (2) the time required to frustrate the search by destroying or altering the object of the search, and (3) the likelihood that the destruction or alteration will take place.

Obtaining a Warrant (excerpt from Broward Criminal Attorney Forum)

The time factor for exigent circumstances requires the court to examine the particular facts and assess the difficulty or ease with which a warrant could have been obtained. The time required to obtain a warrant varies according to the physical setting involved. For example, Broward County Florida, magistrates and judges are available twenty-four hours a day at a central and convenient location. But in rural areas, particularly at night, police officers may have difficulty locating an available magistrate or judge who can quickly review the affidavit for a search warrant. Broward criminal defense lawyers are quick to point out the ease in which law enforcement officers may obtain warrants for purposes of determining their actions.

The second factor in defining exigent circumstances requires the criminal attorney to assess the difficulty or ease with which the purpose of the search could be frustrated, most typically by the defendant’s destruction of the sought-after evidence. This determination also requires close examination of the particular facts. For example, the time required to dismantle an apparatus for manufacturing illegal drugs differs from the time required to flush a small quantity of drugs.

The third factor, determining the likelihood that destruction of evidence will occur, is perhaps the most difficult for a defense lawyers to ascertain when identifying exigent circumstances. Except in rare cases, the sought-after evidence will not self-destruct. An affirmative act is normally required to destroy or alter the evidence, therefore the courts must assess the probability that someone will act to destroy the evidence. If the defendant has the power to destroy the evidence, the courts assume that the defendant would likely take advantage of such an opportunity. The likelihood that third parties will destroy evidence, however, is much less clear. In Vale v. Louisiana, the U.S. Supreme Court was unimpressed by the possibility that the defendant’s mother and brother could destroy evidence. The Court indicated that an emergency exists only when the actual destruction of evidence is imminent. The lower courts, however, often recognize the threat of third-party destruction of evidence as an exigent circumstance.

In conclusion, a warrantless search is one possible response to an emergency situation. An alternative often alleged by Broward defense attorneys is that officers could have taken steps to freeze the status quo (act to prevent the destruction of evidence) until a warrant could have been obtained. In Segura v. United States, police officers entered Segura’s apartment, secured the premises by preventing anyone from entering, and remained there for nineteen hours until other officers arrived with a search warrant. According to the U.S. Supreme Court, securing the premises did not intrude upon privacy, although it did interfere with the defendant’s property rights to the premises. The Court suggested that seizures which freeze the status quo could be justified on grounds that would not justify a search because society’s interest in the discovery and protection of incriminating evidence from removal or destruction can supersede, at least for a limited period, a person’s possessory interest in property, provided that there is probable cause to believe that that property is associated with criminal activity.