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Miami Bankruptcy & Criminal Attorney / Blog / Criminal Defense / How Much Discretion Does a Police Officer Have When Executing a Search Warrant?

How Much Discretion Does a Police Officer Have When Executing a Search Warrant?


The Constitution protects your right to be free from unreasonable searches and seizures. Among other things, this means that the police cannot take a sample of your blood without either your consent or obtaining a search warrant. The warrant itself can only be issued if a judge finds there is “probable cause” to believe the blood sample will contain evidence of a crime, such as drunk driving.

Appeals Court Reverses Trial Judge’s Decision to Suppress Key Evidence in DUI Manslaughter Case

But what happens when the police deviate from the strict instructions contained in the warrant? Is the underlying search still valid. A Florida appeals court recently addressed this scenario and found the police had some discretion in how they executed an otherwise valid search warrant.

The defendant in this case, State v. Aaron, was charged with DUI manslaughter after he allegedly struck and killed a motorcyclist while driving his own vehicle. When a Key West police investigator arrived at the accident scene, he decided it was necessary to test the defendant’s blood to determine its alcohol content.

When the defendant refused to consent to a blood, the officer and his partner obtained a search warrant. The warrant directed the officers to obtain “two samples approximately an hour apart.” As the officers explained to the judge, in their experience it was necessary to take two blood draws in this manner so that a qualified analyst could properly calculate the blood-alcohol content.

Despite the warrant’s instructions to obtain two separate samples, however, the officers instead used a single blood sample kit to take two samples. Apparently the officers could not locate a second kit. Because the officers failed to strictly follow the warrant’s instructions, the defendant subsequently asked the trial judge to rule the blood evidence obtained as inadmissible.

The judge actually agreed with the defendant, holding that when it comes to executing a search warrant, “nothing should be left to the discretion of the officer executing the warrant.” The judge therefore suppressed the evidence obtained from the blood draw.

The prosecution appealed the judge’s ruling to the Florida Third District Court of Appeal. On August 12, that court issued an opinion reversing the trial judge and holding the evidence from the single blood draw was admissible against the defendant. The appellate court explained that while police officers do not have the discretion to “perform a general, overbroad search,” that does prevent them from conducting a search that is “more limited than what the warrant permitted,” as was the case here.

Speak with a Florida Criminal Defense Lawyer Today

Although the Third District’s ruling went against the defendant, it nevertheless reiterates an important principle of Florida criminal law–namely, that officers must always obtain a proper search warrant before conducting a non-consensual search of a criminal suspect. If you are in a situation where you are the suspect, remember you never have to consent to a search. Always make the police obtain a valid warrant first.

And if you need legal advice or representation from an experienced Miami criminal defense attorney, contact the Law Office of Julia Kefalinos today at 305.676.9545 to schedule a free consultation.




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