A search warrant is a document, signed by a judge, that gives law enforcement the authority to search your property.
Under Florida Statutes section 933.07, a warrant may be issued when, "the judge, upon examination of the application and proofs submitted, if satisfied that probable cause exists for the issuing of the search warrant, shall thereupon issue a search warrant signed by him or her with his or her name of office, to any sheriff and the sheriff's deputies or any police officer or other person authorized by law to execute process, commanding the officer or person forthwith to search the property described in the warrant or the person named, for the property specified, and to bring the property and any person arrested in connection therewith before the judge or some other court having jurisdiction of the offense."
In other words, a police officer, having probable cause that a crime is being committed on someone's property, or that the property contains evidence of a crime, will prepare an affidavit, detailing for the judge just why they believe that they are entitled to a warrant.
The affidavit must lay out with specificity the items to be seized, and a detailed description of the property to be searched. The affidavit must also state the nature of the investigation and why the officer believes that he or she has probable cause.
Upon a finding of probable cause, a judge will issue the warrant. Again, this warrant must be detailed, and must list the items to be seized, as well as the property to be searched.
Search and seizure is an area of the law that isn't always crystal clear. It's that gray area that permits a skilled criminal defense attorney to exploit constitutional violations committed on behalf of the police.
Search warrants should always be examined closely and evaluated for errors. Often, a search warrant is used by police under the guise that their search of a home will be "safe," and therefore upheld in court.
However, a search warrant can be defective or legally insufficient. Moreover, the information used to obtain a warrant may be stale (too old to be relevant), or may not rise to the level of probable cause.
For your everyday misdemeanor possession of marijuana cases, police officers typically don't obtain warrants. They may pull you over, claim to smell marijuana, and ask you if you have it. They may find a small baggie, write you a PTA (promise to appear) if they are feeling nice, and let you on your way.
Obtaining a search warrant takes several hours, so police officers only take the effort to get one if it's a "big bust," such as a stash house for trafficking in prescription drugs or a marijuana grow house.
If a search warrant is executed upon your property, cooperate and be polite. If you resist you may find yourself charged with additional crimes. As well, the execution of a search warrant is often carried out in paramilitary fashion, perhaps with the aid of tactical officers (SWAT, SRT, etc...). If you put up a fight, you may be shot or severely beaten. I'm not kidding. Cops are amped up on adrenaline when serving a search warrant and are nervous about suspects having weapons. Just be compliant and don't say a word. Give no statements to police without first discussing the matter with an attorney.
While serving a warrant, police may tear your house apart. They may cause thousands of dollars worth of damage. This is par for the course. Police get very angry that you made them go through the process of getting a warrant. Typically, they will knock on your door ahead of time and ask you to consent to search. Remember, if you consent to the search, the search is valid. That is, of course, unless the cops threatened or coerced you into giving consent. Consent must always be voluntary.
If you are the victim of a search warrant (yes, I used the term victim because it can be a traumatic experience), don't panic. You will be handcuffed (likely while the police are obtaining the warrant) and detained and arrested if anything is discovered.
I cannot stress to you the importance of keeping your mouth shut. Don't give the police any more evidence against you than they may already have. Just quietly wait out the process, get a relative or friend to post your bond, and call an attorney as soon as you get a chance.
Like anything else in the law, search warrants are neither black nor white. Like I said, this is a gray area. Let an experienced criminal defense attorney evaluate your case as well as the sufficiency of the warrant. Cases can be won with a good motion to suppress.
Eric Matheny is a criminal attorney serving Miami-Dade and Broward. For more information or to discuss your case, call today.