FAQ: Search and Seizure in Miami

FAQ: Search and Seizure in Miami

Hey there! I wanted to write up a quick guide about some common questions around search and seizure laws here in Miami. I know this stuff can be super confusing, so I tried to break it down in a simple way. Let’s dive in!

What is an “illegal search and seizure”?

Basically, the 4th Amendment says the government can’t search your property or take your stuff unless they have a good reason (aka “probable cause”) and get permission from a judge first. If they don’t follow the rules, then it’s an illegal search and seizure.

When do cops need to get a warrant?

Most of the time! The 4th Amendment says cops need to get a warrant from a judge before they can search your home, car, backpack, etc. The warrant has to say exactly what they’re looking for and where they can search.

There’s some exceptions though. For example, if a cop sees something illegal in plain sight (like drugs on your coffee table), they can take it without a warrant. Or if you consent and say “go ahead and search,” they don’t need a warrant.

What happens if the cops search me or my stuff illegally?

Any evidence they find during an illegal search usually can’t be used against you in court. This is called the “exclusionary rule.” So if the cops search your car without permission and find drugs, a judge will probably say that evidence can’t be used since the search was illegal.

How do I know if a search was legal or not?

It depends on the situation. In general, if the cops didn’t have your consent or a valid warrant, the search was probably illegal. But sometimes it can be a gray area, which is why it’s good to talk to a lawyer if you think your rights were violated. They can help figure out if the search was legit or not.

Can the cops search my car during a traffic stop?

Usually only if they have “probable cause” to believe your car contains evidence of a crime. For example, if they smell weed or see something suspicious in plain sight. But they can’t search just because they pulled you over for speeding or something minor like that.

What about DUI checkpoints – can they search there?

At a DUI checkpoint, the cops can do a quick visual check of your car without a warrant. But they can only search further if they notice signs you’re under the influence, like smelling alcohol, slurred speech, etc. They can’t do an invasive search without probable cause.

When can the cops search me personally?

Cops need probable cause to do a full search of your pockets, bags, etc. They can do a quick pat down if they suspect you have a weapon, but that’s just to check for weapons – they can’t go digging through your stuff.

What if I’m on probation – can they search me?

Yes, probation officers can search your home without a warrant as a condition of your probation. The same rules don’t apply since you agreed to the probation terms, including random searches.

What should I do if I think my rights were violated?

Don’t resist the search in the moment, even if you think it’s illegal, because you could get in more trouble. But definitely write down all the details you remember ASAP so you can talk to a lawyer about whether your rights were violated. An attorney may be able to get any illegally obtained evidence thrown out.

What are the penalties if the cops do an illegal search?

Any evidence found during the illegal search will likely be suppressed and can’t be used against you. The cops probably won’t get in trouble personally unless you decide to file a civil rights lawsuit against them. Talk to a lawyer to understand all your options.

When can cops search my house?

Cops need a search warrant to search your house, with a few exceptions:

• If you consent to the search
• If they see illegal items or activity in plain sight
• If there are exigent circumstances like pursuing a fleeing suspect

They also don’t need a warrant if you’re on probation or parole in some cases.

Do cops need a warrant to search my phone?

Yes, the Supreme Court has ruled that cops generally need a warrant to search the contents of your phone, just like a house or other private property. So they can’t just take your phone and start going through it without permission.

What should I do if the cops want to search my home or property?

You have the right to refuse if they don’t have a warrant. But don’t physically resist or obstruct them if they insist on searching anyway, because that could lead to criminal charges. Just clearly state you do not consent to any search. And contact a lawyer immediately after so they can help protect your rights.

If cops search my home illegally, will the case automatically be dismissed?

Not necessarily. The evidence found during the illegal search will likely be suppressed and can’t be used against you. But if there is other evidence in your case, the charges might still move forward. It depends on the specifics of your case.

Is any evidence found during an illegal search automatically inadmissible?

Generally yes, under the “fruit of the poisonous tree” doctrine. Not only is the direct evidence excluded, but any additional evidence later found as a result of the illegal search is also inadmissible. There are some exceptions though. Talk to an attorney to be sure.

Can I sue if the police violate my rights?

You may be able to file a civil rights lawsuit against the police department if your rights are violated. This is separate from the criminal charges. You can potentially recover money damages. Talk to a civil rights lawyer to understand your options.

Some key things to know about suing the police for civil rights violations:

• You would sue under 42 U.S.C. Section 1983, which allows civil suits against government officials who violate constitutional rights under color of law.
• It’s challenging to win these cases, but possible with strong evidence and a good lawyer.
• You can sue individual officers for damages, or sue the department for injunctive relief like policy changes.
• There are strict deadlines, often 1-3 years, to file suit after the incident occurs.
• An attorney can help gather evidence, identify legal claims, and navigate the complex process.
• If successful, you may recover money damages, legal fees, and court-ordered reforms.
• Talk to a civil rights attorney right away to protect your rights following an incident.

Some notable civil rights settlements against police in recent years include:

• Minneapolis paying $27 million to George Floyd’s family[1]
• Louisville paying $12 million to Breonna Taylor’s family[2]
• Chicago paying $2.5 million to a man beaten by off-duty cops[3]

So while challenging, civil rights lawsuits can hold police accountable and bring some justice to victims. Speak to a lawyer to assess your case.