Jacksonville Criminal Lawyer Blog
Because people in Florida have a Constitutional right to be free from unreasonable searches and seizures as well as a privacy right in their homes, police can only search one’s residence for drugs, guns or other evidence in limited circumstances. The two primary bases for legally searching one’s home are consent to search and a valid search warrant. However, there may be other circumstances where a police search is legal.
For instance, in a recent cultivation of marijuana case near Jacksonville, Florida the police had an arrest warrant for the defendant’s roommate. They both lived in a mobile home. An arrest warrant is just what it sounds like- it gives the police the right to arrest the person listed in the warrant, but it is not a search warrant so it does not give the police the specific right to search anything in particular. However, in this case, the police arrived at the mobile home, and the person in the arrest warrant answered the door. That person asked the police if he could retrieve some of his things, and the police followed him inside. The person was looking back into the mobile home and acting nervously as if someone else was in the mobile home. The police officers called out to anyone else in the mobile home, but no one responded. The officers then walked around the mobile home to see if anyone else was present and found several marijuana plants and marijuana cultivation equipment in one of the rooms. They also found the defendant who was arrested for felony possession of marijuana and cultivation of marijuana.
The criminal defense lawyer for the defendant tried to have the evidence of the marijuana thrown out based on the argument that the search was illegal. The criminal defense attorney argued that the police officers did not have a search warrant or consent to search the mobile home so the search was illegal and any drug evidence found was inadmissible in court. However, there is an exception to the general rule that the police cannot search a home without a search warrant or consent that the court found applied in this case. When the police make an arrest in one’s home, if they have a legitimate reason to believe someone else may be present who may pose a danger to the police, they can search the immediate area for their safety. This is called a protective sweep. If they happen to find marijuana or other evidence of a crime during this protective sweep, they are authorized to seize it and use it against the suspect in a criminal case.
In this case, the police testified that they had reason to believe someone else was in the mobile home who was not responding to their calls. As a result, they felt the need to check the rest of the mobile home to make sure there were no threats to their safety present.
Under the law, this kind of protective sweep may be valid if there are facts to suggest a threat might be present. However, it only gives the police the right to look around to see if anyone else is in the immediate vicinity. It does not give the police the right to go searching all over the residence for other evidence.