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The Florida Bar

Warrantless Searches

The Fourth Amendment states that: “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 upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Under the Fourth Amendment, all people have a reasonable expectation of privacy in regards to their person, their belongings, and their homes and places of business. Law enforcement must have a valid search warrant, issued by a neutral and detached magistrate on the basis of probable cause. The warrant must describe the place to be searched and the items that are to be seized. Furthermore, law enforcement officials must knock and announce their presence, unless the officials have reasonable suspicion to believe that knocking and announcing would be dangerous or futile.

Searches Without Warrant

However, there are several well-recognized exceptions that allow for warrantless searches.

  1. Search Incident to Lawful Arrest – Law enforcement may search the person and areas into which the arrestee may reach to either get a weapon or to destroy evidence. It is important to note, that this type of warrantless search must occur at the same time and place as the arrest. After the individual is taken into custody, law enforcement officials may, pursuant to their established departmental routine, conduct an inventory search of the arrestee’s personal belongings and this extends to their automobile if it was impounded.
  2. Automobile Searches – If the police have probable cause to believe that a motor vehicle contains the instrumentalities or evidence of a crime, the officers may search the entire vehicle which extends to any container which may contain evidence. Law enforcement may also search the belongings of any passenger.
  3. Plain View – If law enforcement officials are legitimately on the premises and view evidence or instrumentalities of crime or contraband which are in the officer’s plain view, the officers may make a warrantless seizure.
  4. Searches and Seizure Authorized by Consent – If an officer asks an individual for permission to conduct a warrantless search and/or seizure and that individual consents, any contraband or evidence may be seized. The person giving consent must give their consent knowingly, intelligently, and voluntarily. The person who consents to the warrantless search does not have to be the owner of the premises, but can be any person with apparent authority to use and occupy the premises. However, any evidence obtained may be used against the owners or occupants.
  5. Evidence Obtained by An Officer’s Stop and Frisk – Law enforcement officers may stop a person if the officer has an articulable and reasonable suspicion of criminal activity. If the officer reasonably believes that person may be armed and/or dangerous, the officer may conduct a protective frisk to detect weapons. The scope of the frisk is limited to a pat-down of the outer clothing. If the officer has information that the suspect may have a hidden weapon, they may conduct a more thorough search. The officer may seize any item that based on its plain feel that the item is a weapon or contraband.
  6. Evidence Obtained in Hot Pursuit - Officers who are in hot pursuit of a fleeing felon, may make a warrantless search and seizure. If officers reasonably believe that evidence may be destroyed before a warrant can be obtained, also known as evanescent evidence, the officers may also make a warrantless search and seizure.
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