Consider a Jacksonville, Duval County, Florida search warrant scenario where Jacksonville Sheriff’s Office Officer A goes to a judge and presents evidence to establish that there is probable cause to search a house for the presence of marijuana, cocaine or other illegal drugs. The search warrant directs Officer A to perform the search. After the judge signs the search warrant, Officer A calls a fellow officer to tell him the search warrant has been signed. The other police officers at the residence start the search while Officer A is en route. Marijuana is found at the residence by one of the other police officers. Is this a valid search of the residence? Probably not according to a recent case out of south Florida.
It is likely that the police officers’ search of the residence for marijuana will be found to be improper because of how it was executed. If the search warrant directs the affiant (the police officer testifying to the judge regarding probable cause to issue the search warrant) to perform the search, that police officer must be present when the search is undertaken. If he or she is not present, any evidence found during the search, such as drugs or guns, may be thrown out of court.
A criminal defense lawyer should determine if any police officer(s) was directed to perform the search in the warrant and if that officer(s) was in fact present for the search. Of course, other police officers can assist any police officer named in the search warrant as the search is performed. Additionally, other police officers are permitted to secure the premises to prepare for the search, and this does not have to be done in the presence of the police officer named in the search warrant.