When are Warrantless Searches Allowed?


The Fourth Amendment of the Constitution protects United States citizens against unreasonable searches and seizures by the government and requires all warrants to be supported by probable cause in order for them to be issued.  The protections of the Fourth Amendment are implicated where an individual has a reasonable expectation of privacy.  Although a warrant is required prior to conducting a search, there are some exceptions that allow law enforcement to conduct warrantless activity.

Generally, police are allowed to perform searches without a warrant when they were acting in exigent circumstances.  Exigent circumstances may exist where there is a risk of a suspect getting away, when police have reason to believe evidence will be destroyed, or where there is a risk of harm to the police or to the public.  If the police are acting under exigent circumstances, or if an individual does not have a reasonable expectation of privacy, a warrantless search will be allowed.  The following are some of the more common scenarios where law enforcement may conduct a search without a warrant:

Voluntary Relinquishment of Information to Public

A person has no legitimate expectation of privacy in information he or she voluntarily turns over to third parties. An example of this is when an individual throws something away and places his garbage on the curb.  In this case, the individual has no expectation of privacy in the items they discard, since their garbage is placed in an area where the public may inspect it, and where strangers are responsible for its removal.

Evidence in Plain View

This is a common-sense idea that says police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.  If a member of the public can place themselves in plain view of the area in question without doing something illegal, then the individual has no expectation of privacy. Police are not required to obtain a warrant in order to observe what is visible to the naked eye.  Officers may seize that which is in plain view if their observation is from a place the officer has a legal right to be, has a right of physical access to the object, and the nature of object as evidence of a crime is immediately apparent.

Consent of Homeowner

It is commonly known that an individual can consent to a police search upon law enforcement’s request.  If an individual consents to a search, a warrant is unnecessary.  It should be noted that issues can arise where consent is given by an individual who does not have the authority to do so.

Search Incident to Arrest

Officers may conduct a warrantless search upon the lawful arrest of a suspect.  This search is limited in scope to the area immediately within the control of the suspect prior to arrest.  The usual justification for this warrantless activity is based on insuring officer safety while properly apprehending the suspect of a crime.

Automobile Exception

Officers are permitted to search motor vehicles without a warrant, as long as their activity is supported by probable cause. They are not required to obtain a warrant prior to the search when the vehicle is mobile or readily mobile, or is found stationary in a place not typically used for residential purposes. This rule would most likely not apply to a mobile home set up within a mobile home park or other area used for residential purposes.

Despite these exceptions to the warrant requirement, there are still limitations on police conduct in connection with searches that may apply in any case.  It is imperative to discuss your individual case with an experienced criminal defense attorney if you or someone you know has been charged with a crime in Florida.  We can discuss your case with you, and advise you of your rights.  Contact us today for a consultation to ensure you are getting the representation you deserve.