Skip to main content

Exit WCAG Theme

Switch to Non-ADA Website

Accessibility Options

Select Text Sizes

Select Text Color

Website Accessibility Information Close Options
Close Menu

Search Warrant Basics

The Fourth Amendment to the U.S. Constitution protects individuals from unreasonable governmental searches and seizures.  Generally, this protection is reflected in the legal requirement that police obtain a search warrant before they search someone’s home or person for evidence of a crime.  When are search warrants required, and how are they procured?

When does the Fourth Amendment apply?

The Fourth Amendment applies only to searches where a person has a legitimate expectation of privacy.  To have a legitimate expectation of privacy, the person must have subjectively expected a thing or place to be private, and that expectation must be objectively reasonable.  If there is no legitimate expectation of privacy, a warrant is not required before police conduct a search.  A reasonable expectation of privacy exists, for example, in one’s home, car, and now, the contents of one’s cell phone.  On the other hand, there is no reasonable expectation of privacy in a home’s front yard, or in public places.

How do police obtain a warrant?

Police obtain a search warrant by demonstrating to a magistrate or judge that there is probable cause to justify a search.  Probable cause exists if there is a reasonable basis to believe that evidence of a crime is present in the location to be searched.  Police must offer sworn statements in support of their request, and must provide a particular description of the place or people to be searched, as well as the evidence they expect to find.  When a judge issues a warrant, police can only search the places or people listed in that warrant, and can only look for the evidence described therein.

What if police perform a search without a warrant?

Although there are a few limited exceptions to the warrant requirement, a search that does not fall within one of these exceptions is illegal.  Courts apply the exclusionary rule to any evidence found during an illegal search, meaning that such evidence cannot be used at trial. Moreover, any additional evidence discovered because of the evidence found during the illegal search is considered “fruit of the poisonous tree” and cannot be used either, unless certain recognized exceptions apply.

Are there exceptions to the warrant requirement?

Under certain circumstances, police do not need a warrant to conduct a search.  These circumstances include the following:

  • When an individual consents to a search;
  • Incident to a lawful arrest, police may search the person arrested and their immediate surroundings; and
  • In an emergency (also known as “exigent circumstances”), when officers have an objectively reasonable belief that immediate police assistance is needed to protect life.

Florida also recognizes an automobile exception to the search warrant rule.  If a car’s occupant is arrested, police may search the passenger compartment for evidence of the crime the occupant is believed to have committed.  A Florida court has also held that a warrantless search of a car was legal based on an assault victim’s statement that the suspect threatened her with a gun that he then put in his car.

Consult an Orlando Criminal Defense Lawyer

Searches conducted by police are not always lawful, and the evidence they obtain may not be admissible in court.  If you are facing criminal charges in Florida, you need a zealous criminal defense lawyer who will question the evidence against you when appropriate.  The experienced lawyers of The Baez Law Firm represent clients in all manner of criminal cases in Orlando, Miami, Tampa, and throughout Florida.  Contact us today to discuss your case.

By submitting this form I acknowledge that form submissions via this website do not create an attorney-client relationship, and any information I send is not protected by attorney-client privilege.

DISCLAIMER: This website contains information about The Baez Law Firm that includes testimonial statements from persons who are familiar with the firm's services. The testimonials shown are not necessarily representative of every person's experience with us. Testimonials from every client are not provided. As no two situations or persons are identical, the facts and circumstances of your situation may differ from those for which testimonials are shown. This website also includes information about some of the past results that we have obtained for our clients. Not all results are provided, and the results shown are not necessarily representative of all results obtained by us. No two situation are exactly alike; every person's situation is unique and the outcome for each person depends on the individual facts.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Skip footer and go back to main navigation