Search and Seizure

Search and Seizure Laws

Search and seizure is the legal term used to describe law enforcement’s examination of a person’s home, vehicle, or business to find evidence that a crime has been committed. If evidence is found, the agent may then “seize” it. Search and seizure may also include placing an individual under arrest.

Florida prosecutors and law enforcement personnel build many of their illegal drug and gun possession cases as well as others around evidence obtained through search and seizures. Many recent cases surrounding search and seizure have been found in favor of law enforcement. What are a citizen’s rights concerning search and seizure?

Fourth Amendment Rights

Under the Fourth Amendment to the U.S. Constitution, ratified in 1791, police may engage in “reasonable” searches and seizures. What does this mean? There are a number of terms involved in determining if a search was reasonable. Many, if not all, of these terms are subject to interpretation. A Criminal Defense Attorney with Florida Board Certification can help you make sure your legal rights are upheld. You are protected from being detained or arrested without a valid reason. The police can’t search your items or property where you would have a recognized expectation of privacy.

Here are some of the terms that are used by the judicial system in order to determine if a proper search and seizure has occurred:

Probable cause —Code of Criminal Procedure article 38.23 does not define probable cause. Case law has held that probable cause exists where police have reasonably trustworthy information, considered as a whole, sufficient to warrant a reasonable person to believe that a particular person has committed, or is committing, an offense. Probable cause requires more than mere suspicion but far less evidence than that needed to support a conviction. A police officer’s hunch, with nothing more, will not satisfy the requirements of probable cause.

Totality of the circumstances —looking at all the circumstances surrounding the alleged violation rather than only one or two aspects. This lack of any single definition of probable or reasonable cause exists so law enforcement has flexibility to meet differing situations that might occur.

Reasonable (or legitimate) expectation of privacy —The U.S. Supreme Court explained that what “a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection… But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, (1976). Individuals ordinarily possess no reasonable expectation of privacy in places and things visible in plain or open view.

Plain view doctrine —Law Enforcement agents are not required to have a search warrant to legally seize evidence that is lying “in plain view”. The law enforcement personnel must be at the location under a legal search warrant or a consented search. The viewed evidence must be easily recognizable as involved with illegal activity.

Cursory visual inspection —during the course of an arrest or in the … of a search warrant, police my make a protective seep of the house in order to make what is called a “cursory visual inspection” if they suspect additional accomplices may be hiding in the residence. Reasonable belief must exist. For example, they can look into other rooms or closets of the house but not in drawers or filing cabinets.

Consent —Consent searches are searches made by law enforcement personnel based on the consent of the individual whose person or property is being searched. The Fourth and Fourteenth Amendments require that consent to a search not be coerced, by explicit or implicit means.

Stop and frisk —Unless they have a reasonable suspicion that you are involved in a criminal activity, the police may not “stop and frisk” you. If they have a reasonable suspicion or they fear for their safety, they may pat down your outer clothing if they are concerned that you might be concealing a weapon.

The definition and interpretation of these terms and circumstances are very conditional. A lot of gray area surrounds evidence obtained by search and seizure. Be sure you hire the services of an experienced Criminal Defense Trial Attorney when seeking advice about your individual situation. Please call or fill out the contact form now for a free consultation to discuss your legal matter.