04-09: Search Warrant - Presumption That Evidence is Located in Residence
Case: State v. Weil, 29 FLW D1560 (5th DCA )

Date: July 9, 2004

FACTS: The defendant allegedly lured the victim from a public place by displaying a police badge and identifying himself as an officer. He handcuffed her and drove her to an unknown building where he raped her at gunpoint. He then drove her to another location and released her. The victim called the real police. It is not clear how the defendant became a suspect but the affidavit for a search warrant indicates that the victim identified him from a photographic lineup. The affidavit asked for authorization to search the defendant’s residence for shoes, gun, handcuffs, and a police badge. When the warrant was executed at his residence, the evidence found included two guns, a badge, a handcuff case and numerous articles of police apparel and equipment. The defendant moved to suppress these items on the basis that there was nothing in the affidavit that established a reasonable likelihood that the evidence the police were seeking would be located at his residence. The judge agreed and ruled that the items seized were inadmissible. The state appealed.

RULING: The appellate court reversed the trial court’s decision. The court ruled that it is not necessary to have direct proof that the objects of the search are located in the place to be searched. Depending upon the nature of the offense committed and the evidence sought, it is reasonable at times to presume that the items would be stored at the suspect’s residence. In this particular case, the appellate court found this to be true. Therefore, the court allowed the evidence to be used against the defendant at trial.

NOTE: This case supports the proposition that “reasonable presumptions” can be the basis for a residential search. However, since “presumptions” will vary from case to case, any officer seeking to rely upon presumptions should coordinate the drafting of the affidavit and warrant with his or her agency legal advisor. Presumptions of the type recognized in this case will not be present in every situation giving rise to the need for a search warrant.

Steve Brady
Regional Legal Advisor
Florida Department of Law Enforcement
Orlando Regional Operations Center

Officers should consult with their agency legal advisors to confirm the interpretation provided in this Update and to determine to what extent the case discussed will impact their activities.

For Further Information Contact:
Steve Brady
Regional Legal Advisor
Florida Department of Law Enforcement
Orlando Regional Operations Center