Open View Observations: Search and Seizure in Florida
- 4th Amendment deals with reasonable expectations of privacy: Therefore, if there is no reasonable expectation of privacy in the thing that is searched then it’s not even considered a search. For example, you don’t have a reasonable expectation of privacy in a bag of weed that you have sitting next to you in public. If you did then you wouldn’t have it sitting next to you. You’d have it hidden in a pocket, locked in a glove box, or somewhere outside the view of the public.
- Open View Observations are Not Searches: Open View Observations do not count as 4th Amendment Searched. Florida Criminal Practice and Procedure states the rule perfectly: “No 4th Amendment search occurs when a law enforcement officer merely sees, hears, or smells evidence of criminal activity, as could any member of the public, while the officer is located on a public street, in a public park, in a public building, in public airspace, in the portion of a private business establishment which is then open to the public, in an open field situated on private property, or at any other location that is not constitutionally protected.” The Florida Criminal Practice and Procedure quotes Maryland v. Macon for this premise. See Maryland v. Macon, 472 U.S. 463, 469, 105 S. Ct. 2778, 2782, 86 L. Ed. 2d 370 (1985)(holding no expectation of privacy in parts of a store where the public was allowed to enter and conduct business).
- Warrant still required in Open View Cases: Even though the visible observation of the contraband is not a 4th Amendment search, a warrant is still required where the observed contraband is in a constitutionally protected area. For example, if the cops observe drugs in the backyard of a residence with a fly over the house. The cops are not allowed to simply walk into the backyard and grab the contraband, unless an exception to the warrant requirement applies. Instead, the officer must go and get a warrant to search the backyard and seize the contraband. The Observation only grants the officer probable cause, it does not grant them more.
- Every Case is Unique: Facts are crucial when determining whether a 4th Amendment seizure occurred. If you have a question about whether you were searched illegally call a criminal defense lawyer to discuss your facts.
Open View Observations. Questions about your 4th Amendment Rights?
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