warrant requirement in Florida

2017“As a general rule, a warrantless search or seizure is per se unreasonable, unless the search or seizure falls within one of the well established exceptions to the warrant requirement.” Jones v. State, 648 So.2d 669, 674 (Fla. 1994).

2005As to the third prong, whether law enforcement has a lawful right of access to an object is “generally determined by the scope of the search permitted by either the terms of a validly issued warrant or the character of the relevant exception to the warrant requirement.” Jones v. State, 648 So.2d 669, 677 (Fla. 1994).

2026See, e.g., Arizona v. Gant, 556 U.S. 332, 347 (2009) (holding that established exceptions to the Fourth Amendment’s warrant requirement “ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle’s recent occupant justify a search”); Maryland v. Buie, 494 U.S. 325, 327, 337 (1990) (“A ‘protective sweep’ is a quick and limited search 2 We acknowledge that there is currently a debate among district court judges regarding the vitality of the plain smell doctrine as applied to the smell of marijuana.

2024See State v. K.S., 28 So. 3d 985, 987 (Fla. 2d DCA 2010) ("Among the exceptions to the warrant requirement is a search incident to a lawful arrest." (quoting Arizona v. Gant, 556 U.S. 332, 339 (2009))); see generally Chimel v. California, 395 U.S. 752, 763 (1969) (describing the justifications for the search- incident-to-arrest principle).

2019However, "[t]he kinds of exigencies or emergencies that may support a warrantless entry include those related to the safety of persons or property, as well as the safety of police." Riggs, 918 So. 2d at 279 ; see also Seibert v. State, 923 So. 2d 460, 469 (Fla. 2006) ("The most urgent emergency situation excusing police compliance with the warrant requirement is, of course, the need to protect or preserve life." (quoting United States v. Holloway, 290 F.3d 1331, 1335 (11th Cir. 2002))); Aguilar v. State, 259 So. 3d 262, 269 (Fla. 2d DCA 2018) ("The exigent- circumstances exception encompasses

2009First, we note that the present case fleshes out the borders of both the “feared medical emergency” exception to the warrant requirement articulated by the Florida Supreme Court in Riggs v. State, 918 So.2d 274 (Fla.2005), and the now well-recognized community caretaking function of police officers.

2023See, e.g., State v. Lynn, 11 Fla. Law Weekly Supp 798b (Fla. 17th Cir. Ct. June 15, 2004) (citing Smith v. State, 753 So. 2d 713, 715 (Fla. 2d DCA 2000) (discussing the consent exception to the warrant requirement)). 3 The defendant’s consent, however, is irrelevant to whether the temporary investigative detention is supported by a reasonable suspicion of criminal activity under Terry v. Ohio, 392 U.S. 1 (1968), and Florida’s Stop and Frisk Law, section 901.151, Florida Statutes (2022).

2006See Schneckloth v. Bustamonte, 412 U.S. 218, 222 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973); Smith v. State, 753 So.2d 713, 715 (Fla. 2d DCA 2000).

2018“When, as here, no warrant is obtained, ‘[t]he state has the burden to prove that an exception to the warrant requirement applies.’” Id. (quoting Kilburn v. State, 54 So. 3d 625, 627 (Fla. 1st DCA 2011)).

2016The state has the burden to prove that an exception to the warrant requirement applies.” Kilburn v. State, 54 So.3d 625, 627 (Fla. 1st DCA 2011) (internal citation omitted).

2017See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) (.“[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’. ” (emphasis added)); see also Riley v. California, — U.S. —, 134 S.Ct. 2473, 2493 , 189 L.Ed.2d 430 (2014) (“Our cases have historically recognized that the warrant requirement is ‘an important working part of our mach

2017See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) (.“[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’. ” (emphasis added)); see also Riley v. California, — U.S. —, 134 S.Ct. 2473, 2493 , 189 L.Ed.2d 430 (2014) (“Our cases have historically recognized that the warrant requirement is ‘an important working part of our mach

2022It would certainly be incongruous, then, for an individual to evade criminal liability under section 893.21(2) for any contraband discovered 11 pursuant to an arrest on an outstanding warrant.5 Cf. State v. Frierson, 926 So. 2d 1139, 1144 (Fla. 2006) (observing that an "outstanding arrest warrant [i]s a judicial order directing the arrest of respondent whenever the respondent [i]s located"); see generally United States v. Robinson, 414 U.S. 218, 224 (1973) ("It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendmen

2022Therefore, the W.S.B. court reasoned, "incriminating evidence that law enforcement officials obtain by other means, such as the fruits of a search warrant or a constitutional warrantless search, unconnected from someone's attempt to seek medical assistance for an individual perceived to be 6We do not mean to suggest that there was any illegality or impropriety on the part of law enforcement officers, here. 21 experiencing a drug overdose, is beyond the immunity's reach." Id. (emphasis added); see generally Robinson, 414 U.S. at 224 (1973) ("It is well settled that a search incident to a lawful

2018A protective sweep may be conducted regardless of whether the arrest occurred inside or outside the premises, but “may only be performed when officers ‘have a reasonable, articulable suspicion that the protective sweep is necessary due to a safety threat or the destruction of evidence.’” Id. (citation omitted); see also Kentucky v. King, 563 U.S. 452, 455 (2011) (“It is well established that ‘exigent circumstances,’ including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant.”); State v. McRae, 1

2017However, an exception to. the warrant requirement exists “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under'the Fourth Amendment.” Missouri v. McNeely, 569 U.S. 141 , 133 S.Ct. 1552, 1558 , 185 L.Ed.2d 696 (2013) (quoting Kentucky v. King, 563 U.S. 452, 460 , 131 S.Ct. 1849 , 179 L.Ed.2d 865 (2011)).

2015The Fourth Amendment to the U.S. Constitution prohibits warrantless searches; however, a warrantless search may be validated if the State proves “the search falls into an established constitutional exception to the warrant requirement, such as consent.” Alamo v. State, 891 So.2d 1059, 1061 (Fla. 2d DCA 2004); see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).

2015The Fourth Amendment to the U.S. Constitution prohibits warrantless searches; however, a warrantless search may be validated if the State proves “the search falls into an established constitutional exception to the warrant requirement, such as consent.” Alamo v. State, 891 So.2d 1059, 1061 (Fla. 2d DCA 2004); see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).

2009As in Levine , we are bound by the Florida Supreme Court’s opinion in Hornblower v. State, 351 So.2d 716, 718-19 (Fla.1977), which held that “probable cause itself is not sufficient to support a warrantless search” of a constitutionally protected area like a dwelling or motel room; that “if time to get a warrant exists, the enforcement agency must use that time to obtain the warrant,” absent an exception to the warrant requirement; and that “[l]aw enforcement officers may not sit and wait as here (when they could be seeking a warrant), then utilize their self-imposed delay to create exigent ci

1978For example, in Hornblower v. State, 351 So.2d 716 (Fla. 1977), our supreme court said at page 718: Excluding the consent and plain view situations, which remove the need for a warrant, every "exception" to the warrant requirement derives from an emergency situation, where to obtain a search warrant would defer police activity that must be performed punctually to be effective... .

1993Under the vehicle exception to the warrant requirement "[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize." Carney, 471 U.S. at 394 , 105 S.Ct. at 2071 (quoting United States v. Ross, 456 U.S. 798, 823 , 102 S.Ct. 2157, 2172 , 72 L.Ed.2d 572 (1982)).

1993Under the vehicle exception to the warrant requirement "[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize." Carney, 471 U.S. at 394 , 105 S.Ct. at 2071 (quoting United States v. Ross, 456 U.S. 798, 823 , 102 S.Ct. 2157, 2172 , 72 L.Ed.2d 572 (1982)).

2015While a warrant is generally required under the Fourth Amendment prior to a search or seizure, in Carroll v. U.S., 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), the United States Supreme Court carved out an “automobile exception” to the warrant requirement.

2015While a warrant is generally required under the Fourth Amendment prior to a search or seizure, in Carroll v. U.S., 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), the United States Supreme Court carved out an “automobile exception” to the warrant requirement.

2019He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband" (quoting Ensor v. State, 403 So. 2d 349, 352 (Fla. 1981))).

2009Situated where he has a right to be, an officer’s sighting of contraband inside a constitutionally protected area, such as a home or apartment, gives rise to probable cause to seize the item, “but the officer must still obtain a warrant or qualify under an exception to the warrant requirement to enter the dwelling and seize the contraband.” Gilbert, 789 So.2d at 428 (citing Ensor v. State, 403 So.2d 349 (Fla.1981)).

2023See, e.g., State v. Lynn, 11 Fla. Law Weekly Supp 798b (Fla. 17th Cir. Ct. June 15, 2004) (citing Smith v. State, 753 So. 2d 713, 715 (Fla. 2d DCA 2000) (discussing the consent exception to the warrant requirement)). 3 The defendant’s consent, however, is irrelevant to whether the temporary investigative detention is supported by a reasonable suspicion of criminal activity under Terry v. Ohio, 392 U.S. 1 (1968), and Florida’s Stop and Frisk Law, section 901.151, Florida Statutes (2022).

2011See U.S. v. Martinez-Fuerte, 428 U.S. 543, 565 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976) (explaining the purpose of the warrant requirement); Terry v. Ohio, 392 U.S. 1, 21 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) (acknowledging that “the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant” in the context of determining the reasonableness of an investigatory stop).

2026The Fourth Amendment permits a properly limited protective sweep in conjunction with an . . . arrest [as an exception to the warrant requirement] when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.”); Pagan v. State, 830 So. 2d 792, 808 (Fla. 2002) (“The plain view doctrine provides that items in plain view may be seized when (1) the seizing officer is in a position where he has a legitimate right to be, (2) the incriminating character of the evidence is im

2018On remand, the Fifth District found its “task significantly easier” and concluded “that breath-alcohol tests are permissible under the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement.” Williams v. State, 210 So. 3d 774, 776 (Fla. 5th DCA 2017). 5 First, in Missouri v. McNeely, 569 U.S. 141 (2013), the defendant was stopped by a Missouri police officer and declined to use a portable breath- test device to measure his blood alcohol level.

2009In Riggs, the Florida Supreme Court explained the warrant requirement and the emergency aid exception, observing: The United States Supreme Court has repeatedly identified “physical entry of the home [as] the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972)).

2009In Riggs, the Florida Supreme Court explained the warrant requirement and the emergency aid exception, observing: The United States Supreme Court has repeatedly identified “physical entry of the home [as] the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972)).

2018In Brigham City v. Stuart, 547 U.S. 398 (2006), the Supreme Court set forth the principles of Fourth Amendment law: It is a " 'basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.' " Nevertheless, because the ultimate touchstone of the Fourth Amendment is "reasonableness," the warrant requirement is subject to certain exceptions. . . . "[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless

2015See Brigham City, Utah v. Stuart, 547 U.S. 398, 398 , 126 S.Ct. 1943 , 164 L.Ed.2d 650 (2006) (“Because the Fourth Amendment’s ultimate touchstone is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.”).

2011See Colorado v. Bertine, 479 U.S. 367, 371 , 107 S.Ct. 738 , 93 L.Ed.2d 739 (1987) (observing that "inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment"); South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976) (discussing the justifications for inventory searches of impounded vehicles and explaining that federal and state courts have consistently held that inventory searches conducted pursuant to standard police procedures are reasonable).

2011See Colorado v. Bertine, 479 U.S. 367, 371 , 107 S.Ct. 738 , 93 L.Ed.2d 739 (1987) (observing that "inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment"); South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976) (discussing the justifications for inventory searches of impounded vehicles and explaining that federal and state courts have consistently held that inventory searches conducted pursuant to standard police procedures are reasonable).

2025This “exception to the warrant requirement . . . applies only to searches of vehicles that are supported by probable cause,” such that “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” Ross, 456 U.S. at 809 ; see also Betz, 815 So. 2d at 633 (explaining that “[p]robable cause exists where the facts and circumstances within [the officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an o

2013In Crump , the supreme court held the lower court correctly denied a defendant’s motion to suppress evidence obtained without a warrant from his pickup truck, stating: Under the vehicle exception to the warrant requirement “[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize.” Carney, 471 U.S. at 394, 105 S.Ct. at 2071 (quoting United States v. Ross, 456 U.S. 798, 823 , 102 S.Ct. 2157, 2172 , 72 L.Ed.2d 572 (1982)).

2010“Among the exceptions to the warrant requirement is a search incident to a lawful arrest.” Id.

2010“Among the exceptions to the warrant requirement is a search incident to a lawful arrest.” Id.

2024See State v. K.S., 28 So. 3d 985, 987 (Fla. 2d DCA 2010) ("Among the exceptions to the warrant requirement is a search incident to a lawful arrest." (quoting Arizona v. Gant, 556 U.S. 332, 339 (2009))); see generally Chimel v. California, 395 U.S. 752, 763 (1969) (describing the justifications for the search- incident-to-arrest principle).

2013I, § 12, Fla. Const. In Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the United States Supreme Court approved the warrantless search of an arrestee’s person incident to arrest, and any area into which the arrestee may reach, and articulated two specific bases for this exception to the warrant requirement: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.

2009In Riggs, the Florida Supreme Court explained the warrant requirement and the emergency aid exception, observing: The United States Supreme Court has repeatedly identified “physical entry of the home [as] the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972)).

2009In Riggs, the Florida Supreme Court explained the warrant requirement and the emergency aid exception, observing: The United States Supreme Court has repeatedly identified “physical entry of the home [as] the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972)).

2017The five established exceptions to the warrant requirement are: “(1) consent, (2) incident to a lawful arrest; (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk.” Gnann v. State, 662 So.2d 406, 408 (Fla. 2d DCA 1995).

2009He contends that the trial judge erred in denying his motion to suppress the evidence seized from the motel room, based on the “exigent circumstances” exception to the warrant requirement, where the circumstances were very similar to those presented in Gnann v. State, 662 So.2d 406 (Fla. 2d DCA 1995), Levine v. State, 684 So.2d 903 (Fla. 4th DCA 1996), Rebello v. State, 773 So.2d 579 (Fla. 4th DCA 2000), and State v. Garcia, 866 So.2d 124 (Fla. 4th DCA 2004).