Search Warrant Requirements in Florida

The search warrant requirement comes from the writs of assistance which the British used in Colonial times. These writs, which were often transferable, were blank search warrants that allowed any military or law enforcement official to search any property at any time. To end this abusive practice, the Founding Fathers added the Fourth Amendment to the Bill of Rights.

Today’s federal and state governments aren’t nearly as abusive as the British government was back then, but they’re in the same ballpark. Many law enforcement officials would gladly ignore individual rights if the officials thought they could make arrests. So, it’s up to a Tampa criminal defense lawyer to enforce the Fourth Amendment’s requirements and protect the rights that mean so much to us.

Affidavit

An affidavit, which is a unique, written, and sworn document, is the first search warrant requirement in the Fourth Amendment.

Many jurisdictions use boilerplate or fill-in-the-blank affidavits. That’s especially true if officers quickly need many search warrants, like on a no-refusal DUI weekend.

According to the Supreme Court, law enforcement officers need search warrants to extract blood samples from DUI suspects. So, police officers might have a stack of partially-complete affidavits, fill in the blanks of one, and submit it to a judge. That’s not an affidavit.

Likewise, an email to a judge is not an affidavit, even if it’s unique. If a Tampa criminal defense lawyer challenges the affidavit, prosecutors must produce a paper document, not a screenshot.

Finally, affidavits are sworn documents. At a minimum, the notary or other officer must read the entire affidavit, ask questions about unclear portions, and personally witness the signature. A breakdown in any one area invalidates the affidavit and therefore the search.

Probable Cause

Affidavit requirements are specific. The proof requirement in these affidavits, probable cause, is less specific. We do know that probable cause is somewhere between reasonable suspicion, which is an evidence-based hunch, and beyond a reasonable doubt, which is the standard of proof at trial.

Usually, even if the evidence is weak, affiants (people who swear out affidavits) get the benefit of the doubt, unless there’s clear evidence of fraud or the affidavit over-relies on an unreliable source.

An informant’s testimony could be an unreliable source. Most informants receive thousands of dollars in cash or leniency in another proceeding. Since most people will say pretty much anything for money or love, an informer’s uncorroborated testimony is always suspect.

Some search warrant exceptions apply. For example, if owners, or apparent owners, consent to property searches, officers don’t need warrants. An apparent owner is someone like a vehicle driver who doesn’t legally own the car. Consent is a voluntary, affirmative, and revocable act.

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