“What Are the Legal Requirements for a Search Warrant?” and “When Is A Warrant Not Required To Search Your Home?”
Under most circumstances the police need a valid search warrant to be able to enter and search your home without your consent.  BEFORE you give consent, call (727) 531-2926 to speak with a criminal defense attorney now!

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Florida Search Warrants: Understand Your Rights and Obligations

 

The Fourth Amendment to the U.S. Constitution states “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.” Because of the rights found in the Fourth Amendment, a law enforcement officer is generally required to obtain a search warrant before he or she has the right to enter and search your home. If the police wish to search your home it is important that you understand your rights and obligations.

Although our rights under the Fourth Amendment have slowly eroded since the Constitution was created, your right to be secure in your home remains strong. What this means, in practical terms, is that under most circumstances the police need a valid search warrant to be able to enter and search your home without your consent.

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How Do the Police Get a Warrant to Search a Home?

To obtain a search warrant in Florida, a law enforcement officer must request one from a judge or magistrate. The request must include an affidavit, sworn to by the officer, which includes information that provides the basis for probable cause for the search warrant. In other words, the judge must be convinced that there is a high probability that contraband or evidence of a crime will be found at the property to be searched. Furthermore, the search warrant must specify what the police are allowed to search for and must describe the property to be searched. If a judge or magistrate issues a search warrant, the police may execute the search warrant at any time. As a general rule, the police can only search for items indicated in the warrant. For example, if the warrant allows the police to search for stolen televisions, they cannot open drawers in a bathroom cabinet where a TV would not fit.

When Is A Warrant Not Required To Search Your Home?

In the United States, we are afforded several protections by the U.S. Constitution. Among the protections we enjoy is the Fourth Amendment prohibition against “unreasonable” searches and seizures. Although the courts have watered down the protections afforded by the Fourth Amendment over the years, it remains relatively stable concerning a search of your home. As a general rule, a warrant based on probable cause is required before the police can conduct a search and seizure of your home. There are, however, exceptions to that general rule, leading to the question “ When is a warrant not required to search your home? ”

The Fourth Amendment to the United States Constitution is where the protection against “unreasonable” searches can be found, stating as follows:

“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.”

In essence, the Fourth Amendment has been interpreted to mean that unless one of the few exceptions to the warrant requirement applies a law enforcement officer must first obtain a warrant, based on probable cause and signed by a judge or magistrate, before your home can be searched. Knowing what those narrow exceptions are, however, is just as important as understanding your general right to remain secure in your home. The exceptions to the warrant requirement include:

  • Consent – the most commonly used exception is consent. When the police want to search your home and do not have enough evidence to amount to probable cause, or they don’t want to wait for a warrant to be issued, they will ask you to consent. Sometimes, “asking” involves subtle threats or statements such as “we can get a warrant, but it will be easier of you consent.” Once you consent, a warrant is no longer required. Do not ever consent to a search of your home without first consulting with an experienced Florida criminal defense attorney.
  • Plain view – if illegal contraband is in plain view a warrant is not required. For instance, if you open the door to the police and a bag of marijuana is laying on the living room coffee table where the officer can clearly see it, you just gave the officer the right to search your home without a warrant.
  • Incident to arrest – when a police officer makes a lawful arrest the area within the arrestee’s immediate control may be searched to ensure there are no weapons or contraband.
  • Emergency – if the police arrive at your home and they hear screams for help or shots fired, for example, they may enter without a warrant. This exception may also include a situation where the police are in “hot pursuit” and the person being pursued runs into your home.

If you have additional questions about a search and seizure conducted in your home, consult with an experienced Florida criminal defense attorney as soon as possible to discuss your legal options. Contact the criminal defense team at Powers, Sellers, & Finkelstein PLC by calling 727-531-2926 today to schedule your appointment.

 

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