Search warrants are required by the Constitution of the United States and the Florida State Constitution when police want to enter a person’s home or another place in which the person has a reasonable expectation of privacy.
To obtain a lawful search warrant, a law enforcement officer must swear to the truth of facts that would persuade a reasonable person that a crime was (or is being) committed and that evidence of that crime is likely to be found at a particular place identified in the warrant.
It may seem logical and fair that a criminal defendant whose house was searched with the authority of a search warrant that the defendant and their lawyer should be able to examine the affidavit the police presented to the judge to convince the judge to sign the warrant. But that is not always the case. This blog will explain how an experienced Florida criminal defense lawyer can obtain a copy of the search warrant affidavit, and what objections and resistance the prosecution can press to keep the affidavit secret.
Why a Criminal Defendant Should Want to See the Search Warrant Affidavit
As we explained above, the U.S. and Florida constitutions guarantee the right of the people to be free from unreasonable searches and seizures. To ensure that every search conducted by police is “reasonable,” the law presumes that any search without a warrant is unreasonable. There are exceptions to that requirement which we won’t cover here because they are explained in other posts on our website.
A search warrant doesn’t just drop from the sky. It is issued by a judge only when convinced by the factual contents of a sworn affidavit that the search is based on probable cause to believe the evidence of criminal activity will be located at the place to be searched. Police know that they won’t get the warrant if they don’t include facts on which the judge can find probable cause.
What if the police fudge the truth more than a little in the affidavit? What if the affidavit describes a different house than was listed on the warrant? What if the information reported in the affidavit comes from an entirely unreliable person?
Finding any of these problems present in an affidavit that led to a search warrant being issued could be used by a skilled criminal defense lawyer to challenge the legality of the warrant because it was issued on either knowingly false, inaccurate, or unreliable information in the affidavit.
In Florida, the law allows a defendant’s lawyer to file a request for “discovery.” But that doesn’t always work.
How The Rules of Discovery Work
“Discovery” is a term used in law to refer to the pretrial process of each side exchanging documents and other information about the evidence they expect to be used at trial. But the defendant in a criminal case does not have a constitutionally guaranteed right to discovery.
Discovery, trading information before trial about the evidence you will use at trial, was developed to make the judicial system run more efficiently. Before the exchange of discovery was practiced, a litigant would not know what evidence the opposing party would present until the trial was going on. This was referred to as “trial by ambush” or “trial by surprise.”
But “trial by ambush” led many criminal defendants and even some civil litigants to complain that they should have time to digest the surprise evidence, or to counter it with their own soon-to-be-found evidence. To deny them the ability to adequately respond to their opponent’s surprise evidence would deny them a fair trial, which is guaranteed by the constitution.
So, trials were delayed to better conduct fair trials. Now, each state and the federal courts have adopted rules of procedure that include extensive, detailed, strict rules governing what is discoverable and when it must be revealed.
Discovery of Search Warrant Affidavits
In Florida, a defendant does not have to request discovery from the prosecution. But if they do, then the defense must reveal to the prosecution what evidence they may choose to present in their defense.
Rule 3.220(I) of the Florida Rules of Criminal Procedure requires the prosecution to inform the defense if “there has been any search or seizure and any documents relating thereto[.]”
That seems simple and clear enough. But there are always exceptions to every rule.
If the affidavit sworn to by the police to get the warrant issued contains details about a confidential informant or reveals activities about a still ongoing secret investigation, the prosecution can object to revealing the information to the defense.
Under Florida law, the defendant bears the burden of persuading the court that “good cause” exists to give the defense access to the affidavit. Denial of access to the affidavit would deny them access to evidence useful in their defense, and thereby deny them a fair trial. On the other hand, the prosecution is legally entitled to shield the name of confidential informants from disclosure if they are not witnesses to charged crimes or they are not going to testify at trial.
Your Defense Lawyer’s Skill and Experience Can Make the Difference
How can a defense lawyer argue they need to see the affidavit because it contains valuable defense information if they can’t see what’s included in the affidavit? That is precisely what happened in the case of Hill v. State, 307 So. 3d 897 (Fla. Dist. Ct. App. 2020). In that case, the defense was denied access to the affidavit and the appellate courts upheld the trial court’s decision to deny the defense motion.
In another recent case, Jackson v. Sec’y, Dep’t of Corr., 3:19-cv-923-MMH-LLL (M.D. Fla. June 21, 2022), the United States District Court, Middle District of Florida recognized the state’s interest in keeping a confidential informant’s (C.I.) name privileged, but held that revealing the identity of a C.I. is required in some circumstances:
The government has a limited privilege to withhold from disclosure the identities of confidential informants. Roviaro v. United States, 353 U.S. 53, 59 (1957). However, “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause, the privilege must give way.”
Jackson v. Sec’y, Dep’t of Corr., 3:19-cv-923-MMH-LLL (M.D. Fla. June 21, 2022) pgs: 27-28
The skill, experience, talent, and creativity of a criminal defense lawyer are every bit as important to the success of the defendant’s case as any other factor. Evidence is viewed by different parties from different perspectives. The ability to frame an argument properly to persuade a judge to rule with your client is an often-overlooked quality that separates good lawyers from a great one.
Tampa Criminal Defense