Florida Detective Didn’t Have Grounds for Doing a Protective Sweep, Making Warrantless Search Illegal

MarijuanaA recent Polk County case involved what happens in the not unusual scenario in which a law enforcement officer engaged in a warrantless search, and the state and the defense then contested whether or not the officer’s actions triggered a constitutional violation. Sometimes, the difference between success and an unsuccessful outcome can be the ability to argue persuasively for the exclusion of certain evidence obtained via an illegal search. In this case, the Second District Court of Appeal overturned the man’s conviction because the officer’s warrantless search did not fall under the exception available for “protective sweeps.”

The case began when a Polk County detective received a tip that a man with an outstanding misdemeanor warrant was residing at a house in Lakeland. The detective found the man in a truck in the house’s driveway. He cuffed the man and began moving around the property. Without seeking or obtaining consent, the detective walked to the north side of the house to see if anyone else was on or inside the property. From the curtilage of the home, he looked into an open window, where he viewed weapons, ammunition, and drugs. Several hours later, the police had a warrant. The search yielded 800 grams of marijuana, a ledger, a scale, and two guns. Based on the results of this search, the state charged the man with multiple drug and weapons crimes.

The defendant argued to the trial court that it should suppress all of the evidence seized under the warrant. The detective, he argued, violated his constitutional rights when the detective went onto the curtilage and, from there, looked into the home to spot the drugs and weapons, which formed the basis for the issuance of the warrant. The trial judge refused to suppress the evidence, concluding that the detective’s actions were permissible and necessary in the name of officer safety.

At that point, the man pled no contest but reserved the right to appeal the suppression decision, which he did. On appeal, the Second District agreed with him and reversed the conviction. The trial court should have found the search unjustified and should have granted the suppression request.

The reason for the reversal went back to the moment the detective stepped onto the house’s curtilage. The law is clear that warrantless searches of homes are “‘per se unreasonable under the Fourth Amendment” and the Florida Constitution, except for a few very specific and very well-established exceptions. One of those valid exceptions is what’s known as a “protective sweep,” which is a “quick and limited search of the premises” in order to ensure the safety of the officers and others in the area. In this case, though, the detective’s action was not a valid protective sweep. That’s because an act can only be a protective sweep and meet the standard for a warrantless search exception if there’s proof that such a sweep was necessary due to a safety threat or the destruction of evidence.

In the hearing before the trial judge, the state provided that court with no evidence to support a factual finding that there was a safety threat or the destruction of evidence. The defendant was cuffed and sitting in the driveway. The detective testified that he had no knowledge whether or not anyone else was on the property. That is considered only a suspicion, and suspicions aren’t enough to allow for a warrantless search. In the past, the courts have established that when “the police did not know, as an absolute certainty, whether more people were in the house,” their lack of certainty meant that a warrantless search was not allowable.

When you or a loved one are facing criminal charges, you need representation upon which you can rely. The skillful Tampa Bay drug trafficking attorneys at Blake & Dorsten P.A. have been helping the accused for many years. Our attorneys have the experience you or your loved one needs on your side. Call us today at (727) 286-6141 to schedule your free initial consultation and get the answers and assistance you need.

More blog posts:

When Even a Small Flaw in the State’s Case Can Overturn a Conviction in Florida, Tampa Bay Criminal Defense Lawyer Blog, Nov. 23, 2016

What next for marijuana in the Tampa Bay area?, Tampa Bay Criminal Defense Lawyer Blog, Nov. 6, 2014

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