As a Fort Lauderdale criminal protection lawyer, I examine dozens of possibly purpose affidavits (or “A” paperwork) a month. A probable purpose affidavit is needed to justify regulation enforcement’s arrest of an man or woman. Without justification, a Magistrate Judge may additionally find that the State does no longer have “probable purpose” to hold the arrestee on bond and launch the arrestee on his/her “own recognizance”. As a result, in instances involving a warrantless search of an person (or an character’s vehicle), an acceptable in all likelihood reason affidavit will inevitably listing an “exception” for why law enforcement did now not obtain a warrant previous to carrying out the hunt.
It is properly settled beneath the Fourth and Fourteenth Amendments that a search performed without a warrant issued upon possibly motive is ‘per se unreasonable… Difficulty most effective to 3 in particular set up and properly-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The State has the weight of displaying waist bag that a warrantless search comes within one of the diagnosed exceptions. Reed v. State, 944 So.Second 1054, 1058 (Fla. 4th D.C.A. 2006). The 5 mounted exceptions to the warrant requirement are: “(1) consent, (2) incident to a lawful arrest, (3) with possibly motive to search however with exigent occasions, (4) in hot pursuit, and (five) prevent and frisk. In latest months, law enforcement has growing relied upon “exigent instances”, and extra particularly, the “community caretaker doctrine” or “emergency aid exception” as the identified exception to effectuate a seek with out a warrant.
Here is a HYPOTHETICAL reality pattern concerning the “network caretaker doctrine” for instructional functions best.
Officer MARBLES of the Acme Police Department (hereinafter known as “MARBLES”) makes contact with John Arrestee (hereinafter noted “ARRESTEE”) sitting close to a taxi stand. Acme Fire Rescue is tending to ARRESTEE because of ARRESTEE being observed via a involved citizen “surpassed out”. Upon MARBLES’s arrival, ARRESTEE is now conscious, albeit intoxicated, and talking with Acme Fire Rescue. Allegedly in an try to reap ARRESTEE’s identity, MARBLES secures and opens a fanny percent connected to ARRESTEE’s waist. MARBLES opens the fanny percent attached to ARRESTEE’s waist with out securing a warrant or ARRESTEE’s consent. Inside the fanny %, MARBLES locates ARRESTEE’s Driver’s License and a closed, tough-shelled, non-transparent, over-the-counter bottle of Aspirin. Based on MARBLES’s education and experience, MARBLES believed the closed, difficult-shelled, non-transparent, over-the-counter Aspirin bottle consists of unlawful narcotics inside. Although MARBLES satisfies the reason of his seek whilst he located ARRESTEE’s driving force’s license, MARBLES opens the Aspirin bottle without securing a warrant or ARRESTEE’s consent. MARBLES locates Alprazolam (Xanax) capsules within the Aspirin bottle. MARBLES arrests ARRESTEE. MARBLES is based upon the “community caretaker doctrine” or “emergency resource exception” as justification for securing and starting the fanny % attached to ARRESTEE’s waist.
It is the author’s opinion that there isn’t an affordable, goal perception for Officer MARBLES to consider there have been “exigent circumstances” to open such fanny p.C. And get better a closed bottle of Aspirin without securing a warrant. In Reed v. State, the Florida Fourth District Court of Appeals held that regulation enforcement exceeded the scope of the exigent situation exception to the warrant requirement through final in the defendant’s resort room after regulation enforcement confirmed that the defendant had not overdosed. In Reed, Broward Sheriff’s Office Deputy Andrew Cardarelli obtained a tip of narcotics interest interior a close-by resort room. Officer Cardarelli knocked on the resort room door and was greeted with the aid of an unknown female. At this point, Deputy Carderelli determined an unknown male, later diagnosed as Mr. Reed, mendacity on a mattress. Deputy Cardereilli referred to as out “Mr. Reed” a few instances without a reaction. As a result of Mr. Reed’s unresponsiveness, Deputy Carderelli entered the room to investigate Mr. Reed’s properly-being. Deputy Cardarelli shook Mr. Reed to arouse him. Mr. Reed awoke and, upon request, furnished his Identification to Deputy Cardarelli. At this point, Deputy Cardarelli determined that Mr. Reed’s license changed into suspended and that he changed into on criminal probation. Deputy Cardarelli positioned Mr. Reed underneath arrest. At the listening to on the Motion to Suppress, Deputy Cardarelli said that he did now not depart when Mr. Reed wakened due to the fact he became carrying out an investigation, but that if Mr. Reed had requested him to leave he could had been required to go away. The Fourth District Court of Appeals, relying on Riggs v. State, reasoned that exigent circumstances are the ones characterized via “grave emergencies”, imperativeness for protection, and compelling desires for movement, as judged through the totality of the instances. Riggs v. State, 918 So.2nd 274, 278-279 (Fla. 2005); Wheeler v. State, 956 So.Second 517 (Fla. Second D.C.A., 2007) (“To invoke medical emergency exception to the warrant requirement, the State ought to rebut the presumption that the search is unreasonable with the aid of showing a grave emergency that makes a warrantless seek imperative to the protection of the police and the network.”) For example, [Where protection is threatened and time is of the essence, [the Florida Supreme Court has] recognized that the “need to defend life and to prevent extreme bodily injury offers justification for an in any other case invalid access]. Feared scientific emergencies are included within the scope of exigent circumstances… Such medical emergencies can consist of reviews of an man or woman suffering from an overdose. Id. However, the entry based totally on an exigency have to be restricted in scope to its cause. An officer might not maintain his seek once he determines that no emergency exists.
Once Officer Cardarelli confirmed the Mr. Reed had now not overdosed, [Officer Cardarelli] become required to depart the lodge room because the exigency dissipated and no criminal interest turned into apparent within within the room. As in our case, once ARRESTEE is conscious and speakme with Acme Fire Rescue any exigency dissipated. Even assuming arguendo that ARRESTEE isn’t always aware or talking with Seminole Fire Rescue, MARBLES’s motive to search ARRESTEE’s fanny % (in an attempt to gain his identification) is without advantage. In State v. Perez, the 11th Judicial Circuit of Florida, sitting it its appellate capacity, supplied a basis for contrast to determine whether or not the emergency aid doctrine applies to a case. State v. Perez, 12 Fla. L. Weekly Supp. 35a (11th Judicial Circuit, 2004) quoting People v. Mitchell, 347 N.E. Second 607 (N.Y. 1976). The three component test includes: (1) Was there an objectively reasonable foundation for a perception in the immediate need for police help for the protection of existence or belongings? (2) Were the officer’s actions encouraged with the aid of an motive to useful resource or protect, as opposed to remedy a criminal offense? AND (three) Do the police moves fall in the scope of an emergency? It is the author’s opinion that under the totality of the occasions, MARBLES couldn’t have reasonably believed that ARRESTEE needed useful resource via law enforcement. Trained scientific personnel, Acme Fire Rescue, are getting to ARRESTEE upon MARBLES’s arrival. As such, any on the spot want for police involvement is dissipated. Since Acme Fire Rescue is already tending to the “emergency”, MARBLES’s involvement is superfluous to ARRESTEE’s properly-being. MARBLES does no longer have a “compelling want” to ascertain ARRESTEE’s identity. Moreover, ARRESTEE submits this is changed into conscious and talking with Seminole Fire Rescue on the time of MARBLES’s arrival. This could further assist the argument that no emergency existed. MARBLES’s seek of ARRESTEE’s blue fanny p.C. Isn’t vital to guard existence and to prevent critical bodily damage to justify the invalid access. As such, relying on the steerage of State v. Perez, the State will no longer have the ability to expose that the emergency useful resource doctrine applied in this case.
Although there are other feasible problems to suppress the seizure of the xanax, most extensively, whether MARBLES has probable purpose to accept as true with the closed, tough-shelled, non-transparent, over-the-counter Aspirin bottle contained illegal narcotics, this creator would stay up for arguing this unique issue at a Motion to Suppress. This writer would hope that the Court could comply with the regulation and require the State to reveal a grave emergency that made MARBLES search of ARRESTEE imperative to the protection of the police and the network, and now not just MARBLES’ “droop” that ARRESTEE requires police assistance. If not, regulation enforcement will maintain to hide in the back of the “network caretaker exception” any time they sense like searching an individual leaving a bar impaired beneath the impact of alcohol.
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