Warrantless Searches in Florida
Introduction
The question about the viability of a warrantless search in the law enforcement process drives the need to effectively provide satisfactory information on the same. While in most cases it may not be recommended or even legally acceptable to conduct warrantless searches on a person or their surroundings, it is important to know when such searches are allowed and thereby make use of opportunities when they arise. Conducting warrantless searches may not only be profitable to the law enforcement personnel but may also do a lot with regards to reduction of crime levels. The ability of a law enforcement officer to conduct a warrantless search can result in the discovery of new evidence that may be usable in a court of law. Additionally, officers can also protect themselves from attack through carrying out warrantless searches on suspects.
It is important in the law enforcement filed to categorically understate the conditions under which one is allowed to carry out warrantless searches. While some of the conditions outlined by the law are understandable, there are others that can easily be violated due to the ease of assumption. There are many reasons why officers may choose to carry out warrantless searches on suspects. Some of the reasons include protecting themselves from attack by the suspect, to help in the recovery of items related to crime as well as to reveal evidence to the crimes committed if possible (Florida Legislature para. 901.21). This implies that warrantless searches are mandatory and are effective as it is recommended to be carried out especially following lawful warrantless arrests. While there are conditions which warrantless searches may be acceptable, the Miami Dade Police Department reports that any evidence received through warrantless searches may be suppressed in a court of law (42). This implies that carrying out a warrantless search has to be for only the purposes highlighted and acceptable within the la w and may not be used as an excuse to gain access to evidence for a case.
There have been various articles written regarding the subject of warrantless searches particularly in Florida. Most of the articles are law related and directed towards the use of the law enforcement agencies. However, it is necessary not only for the law enforcers top understand their mandate with regards to warrantless searches but also to adhere to the conditions set for the searches. The present study adds to the already available dearth of information by clearly explaining the various conditions under which law enforcement agencies are allowed to conduct warrantless searches. The main objectives of the study therefore include to determine the conditions under which warrantless searches can be conducted and to explain within which limits the conditions are allowed to be invoked. The paper follows a simple outline which includes the discussion of various aspects of the warrantless search, and their limits.
Search of containers
One of the key areas that have been immensely discussed in the subject of warrantless search within the state of Florida is the search of containers found with the suspect. In this case, the definition of containers has been found to be ambiguous in some cases. While the initial case law in which reference was made to containers referred to the vehicles used by the suspects, the ruling in that case has been the forerunner in the consideration of other confinements within the control of suspects. Containers such as bags, locked luggage and glove boxes have all been classified under this law. In the case of Chimel v California (1969), it was ruled that the arresting officer had the mandate to conduct a warrantless search in places close by where the suspect may gain access to items that could probably cause harm to the officer and/ or help in hiding evidence and concealment of crime items. In ordinary frisking actions, the police are not allowed to look into locked containers without warrant. However, when the search occurs during an eminent arrest, the police can search a car only when the suspect is found within it. For locked containers such as suitcases, the court has been found to favor the arresting officers to access locked luggage which is in immediate control of the arrested suspect. For instance, in the case of U.S v Gonzalez (1996) the court ruled in favor of searching the car including locked glove compartments, passenger seats, consoles, receptacles, bags, boxes and luggage found anywhere within the car. The decision for this case was made citing a previous case (that of Breton), in which the police had been allowed to do the same. Consequently, it can be concluded that warrantless searches for locked containers are only allowed in cases where the suspect is found within the container (for a car) and in immediate control of the container (for locked bags, luggage). It must also occur in cases where an arrest is in progress and with the objectives outlined for the protection of the officer or collection of evidence.
In any cases involving a warrantless search, the arresting officer/ officer executing the search has to make an inventory of all the materials/ property taken into custody. According to a report by (Besselman 3), inventory is only carried out for the protection of the suspect’s property, protection of the officers from harm and protection of the officers from claims of stolen property. This implies that a warrantless inventory cannot be used as an excuse to access evidence to a crime. While conducting an inventory search, another issue arises on whether locked containers should be forcefully opened for the same reasons that an inventory is kept. In the case of Florida v Wells (1990), this subject was explored and the court decided that a law enforcement officer could only open a locked container forcefully in cases where the preservation of the property requires for the container to be opened and in order to avoid danger. The same principle is applicable in cases where the trunk of a vehicle in immediate control of the suspect is locked.
Apart from these conditions, the state of Florida also highlights the need to search vehicles based on suspicions of drug possession. From an article by Clarkson, the State of Florida allows the warrantless search of a vehicle without an arrest intention where the smell of pot is felt emanating from the car. According to this article, the state police department considers the smell of marijuana as a signal that there could be other drugs within the vehicle. Moreover, the senior officers also claim that the marijuana usually indicates the probability that other crimes could be ongoing such as gang activities. Clarkson further reports that the smell of marijuana emanating from vehicles has been intensively cited in arrest reports particularly in South Florida. In the article by Clarkson, Lt Ron Barerez, the head of a narcotics division in one of the Sheriff’s offices in South Florida is quoted saying that any police officer that does not conduct a warrantless search in a vehicle producing the smell of marijuana would be considered negligent in their duties (Clarkson para. 8). This implicitly says that the smell of marijuana in itself is a warrant for a search.
Furthermore, other conditions also exist upon which a warrantless search can be conducted on vehicles. Apart from the smell of marijuana, the Miami-Dale Police Department asserts that searching a vehicle not within private premises can be conducted based on the availability of a probable cause for suspicion. The probable cause should be capable of justifying warrant issuance to search the vehicle in order to confirm that the vehicle actually contains the items that are sought. This is most likely to be the case where a vehicle is suspected to contain contraband and crime instrumentalities (Institute of Government 34). Conducting a warrantless search in such a case is done in the same way a search pursuant to a warrant is conducted i.e. including all locked containers therein and all parts of the vehicle. Additionally, it may be suspected that a container within the vehicle contains such items sought. The officers conducting the search in this case are allowed to search for the container within the vehicle without a warrant before proceeding to search for the intended items from the container. However, if the probable cause reported is that a contraband item is within a particular container, a warrantless search is not allowed for the entire vehicle but only for the container and items within the container. After stopping a suspected vehicle, the occupants of the vehicle may be ordered to step out and only searched pursuant to reasonable suspicion that their persons could also contain contraband items (Miami –Dade Police Department 46).
Motor vehicle search is subject to so many conditions yet still provide several opportunities for warrantless search. Apart from the conventional conditions under which it is allowable by law to conduct a warrantless search of motor vehicles, it is also plausible for police officers to conduct warrantless searches where the owners of the vehicle willingly consent to such a search. Conducting a search on locked containers within a vehicle where the owner has consented for a search is considered lawful in a court of law. Any officer intending to conduct such a search, probably for narcotics should do so only on containers considered susceptible to holding the items of interest. While requesting for permission to search a car, the police should use only neutral and general language which allows for an extended search to the trunk and other containers within the car (Institute of Government, 40). Giving consent should be done willingly and knowingly without duress or coercion. The police report should also include the context in which the consent is given to give the state an easy time in proving the legality of the search in case the need arises to do so (Besselman 4).
In-house arrest searches
Just as the search of containers in immediate control of the suspect, the search of the person and surrounding premises also poses a challenge. While it may be easier to act in the case of locked containers since one knows that those in immediate control can be accessed, in house arrests pose a challenge as to the limit of a warrantless search. According to various reports by the Florida judiciary, conducting a search within the premises should be restricted to only those areas that have the potential of launching an attack should be searched. Moreover, only the places that adjoin the particular arrest location can be searched on a warrantless basis in accordance with the Florida law. This makes it impossible to go into rooms that are not adjacent to the arrest location, although the law enforcement officers have the mandate to search closets and other enclosed locations in immediate contact with the suspect. Apart from this, a protective sweep could also be carried out by the arresting officer over the entire premises based on the suspicion that there might be imminent danger in those areas. This is most probably for suspects considered very dangerous and members of gangs. From this information, it could be said that conducting a warrantless search in cases of in-house arrests is more difficult and more restrictive compared to warrantless search in containers. While officers can pry into the privacy of locked containers, in-house arrests offer fewer chances for gaining access to the entire house. An example of such a scenario is referred to in the case of Maryland v Baie (1990) in which the court ruled in favor of the arresting officer who had searched premises.
While carrying out the protective sweep of the premises, the law enforcement officers are restricted in their actions in that the sweep may only extend to areas believed to be harboring the suspect and/ or those areas that may pose a danger to the person(s) conducting the arrest. The Miami-Dale Police Department asserts that the sweep may not take longer than necessary i.e. only sufficient time to effect the arrest and to dispel suspicions of danger. This could be taken to mean that the protective sweep should be restricted to areas within the premises where an individual could be found and nowhere else. While conducting the sweep, the officers are prohibited from seizing any piece of evidence found therein unless it is available pursuant to the plain view doctrine. This implies that for one intending to carry out a search of the suspect’s home or office where they are suspected to be, it is more advisable to obtain the search warrant prior to visiting the scene for the objective of conducting an arrest. Alternatively, one could secure the premises following the arrest, obtain a search warrant for the entire area and then come back to the scene to conduct a more thorough search (Miami- Dale Police Department 44).
In some cases, the suspect may be found within the premises of his residence but outside the house. In such cases, it is against the law to go inside the house with the objective of conducting a search. In case a law enforcement officer enters to conduct a warrantless search of the house in such a case, any evidence collected therein is inadmissible the court. This means that the recommendation to secure the place and obtain a warrant for search still applies to cases involving outdoors arrest. An example of such a case is that of Mestral v. State 16 So 3d 1015 (Fla. 3d DCA 2009) in which the plaintiff was arrested in the front yard, detained in his front yard and a warrantless search conducted through the house. The court upheld that the evidence found within the house was inadmissible.
Mobile Phone Search
It is highly probable for a suspect’s mobile phone to be accessed during an arrest. However, the authority to access the information therein is subject to obtaining a warrant for the same. Although the suspect’s phone may be in the custody of police officers, the information in it should be held as private property and viewing this information taken as necessitating the need for a search warrant. As in the case of an in-house arrest, any evidence obtained from a mobile phone such as phone records, pictures and others are inadmissible in court (Brill 10). While conducting a search preceding an arrest, phone seizure is often a probable outcome. However, it is unlawful to view or access the information stored in the phone without a valid warrant. In the case of Smallwood v Florida No. SC11-1130, the plaintiff commenced a motion in which he opposed the use of information obtained from his phone as evidence for criminal activity. Following his arrest, the arresting officer seized his phone and accessed it without a warrant. Information found therein was then used as evidence against him in the court. The prosecutor asked for a warrant to view the said content prompting the plaintiff to commence the motion on grounds that phone information is very private and should not be accessed without his consent as this violated his privacy. The court ruled in favor of the plaintiff with regards to the use of his phone explaining that conducting a warrantless search of phone information is unlawful (Miami-Dale Police Department 44).
Conclusion
Having looked at various conditions under which officers of law perform warrantless searches on vehicles and other locked containers, houses and residential premises as well as on mobile phones, one thing that is clear is that warrantless searches cannot be relied on as a source of evidence for criminal activity. In addition to this, the phenomenon is riddled with a lot of challenges, particularly on providing the proof that the reasons for the warrantless research are strongly founded on law and that the same reasons are probable causes for warrant issuance. Conducting a warrantless search in premises particularly offers a restriction for the law enforcement officers and may result in greater potential for case dismissal than expected. It is therefore recommended that any law enforcement officers having probable cause to conduct a warrantless search should find ways of obtaining warrants after securing the scenes upon which the search is to be conducted. This is to prevent issues of inadmissibility of evidence in court as well as to avoid suing by the defendants whose properties are searched. Explaining the probable cause for conducting a warrantless search is a difficult task as this activity is often viewed as a form of intrusion and any evidence developed through this process handled with a lot of suspicion and even repressed in cases involving a warrantless search of a premise. For locked containers, law enforcement officers can possibly use the need for inventory, being in the immediate control of the suspect and encounter during mobile conveyance as justifications for a warrantless search without consent.
Works Cited
Besselman, John. Locked Containers. Web.
Brill, Amanda. Warrantless Cell Phone Searches and the 4th Amendment: you think you deleted those Text messages… But you have no idea..Law school student Scholarship, Paper 4.
Clarkson, Brett ‘Smell of Marijuana: Who Needs a Search warrant when Police se their nose?’ Sun Sentinel, 9 June 2013. Web. Accessed 10 July 2016.
Florida Legislature. ‘The 2016 Florida Statuses.’ 2016. Retrieved from http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0901/0901.html
Institute of Government. ‘Chapter 15: Stops and Warrantless Searches’ in NC Defender Manual. Institute of Government, 2002. Web.
Miami-Dade Police Department. Florida Law Enforcement Handbook. Matthew Bender and Company, Inc., 2014.