Search and Seizure

Question 1

General Rule

Answer 1

The Florida Constitution expressly guarantees the right of persons against unreasonable search and seizure.

Question 2

Who must be doing the search?

Answer 2

The Florida Constitution only protects against unreasonable searches by government actor or anyone acting under the direction of the government.

Question 3

What is a search?

Answer 3

To be protected by the Florida Constitution, an individual must have a reasonable expectation of privacy. The determination is based on the totality of the circumstances.

Question 4

What must a search be based on?

Answer 4

A search must be based on probable cause.

Question 5

Warrant requirement

Answer 5

Generally, police need a warrant. Warrants must be issued by a neutral magistrate and specifically describe the scope of the where and whom will be searched. If the police exceed the scope of the warrant, the search is unreasonable.

Question 6

Warrant Exceptions

Answer 6

1. Exigent circumstances: police do not need a warrant if there are exigent circumstances. For example, if the suspect is fleeing or destroy evidence.
2. Stop and Frisk: A police officer may stop and frisk a person if he has reasonable articulable suspicion that criminal activity is afoot and the person is armed.
3. Search incident to a lawful arrest: Pursuant to a lawful arrest, the police may search anywhere on the suspect’s person or within their wingspan. Further, after arresting an occupant of an automobile, a police officer may search the interior of the vehicle incident to arrest if at the time of the search the occupant is unsecured and may gain access to the car OR police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.
4. Consent: A police officer may conduct a warrantless search if he has consent of one with actual or apparent authority to consent and who knowingly and intelligently gives consent. People can restrict the scope of their consent.
5. Automobile Searches: If the police have PC to believe that a vehicle contains contraband or fruits, instrumentalities, or evidence of a
   crime, they may search the vehicle without a warrant. This search may extend to any part of the vehicle—including the trunk—where items for which they have PC might be hidden.