Should Florida law enforcement be required to inform subjects of their right to refuse a search? A Senate panel says that’s a question for another day.
The Senate Criminal Justice Committee on Monday postponed a bill (SB 262), filed by Sen. Gary Farmer, a Fort Lauderdale Democrat, that seeks to prevent police from conducting searches without first informing subjects they have a right to decline.
The bill’s language will need to be revised before the committee reconsiders it—Farmer’s intent was to have the requirement apply strictly to consent searches, but the language doesn’t quite specify that enough.
The measure says an officer would have to inform the subject of their right to refuse “unless the law enforcement officer is carrying out a valid search warrant or the search is based upon another legally sufficient justification.”
The big problem? The meaning of “legally sufficient justification.”
Farmer argued that analysis of the phrase included search instances related to a lawful arrest, a stop and frisk during a Terry stop, vehicle searches where the officer’s safety or evidence preservation is a concern, or when something is in plain view.
After the senator listed the exceptions, he told the committee he’d be willing to include them in the bill.
Another ambiguity raised by the committee: Whether a law enforcement officer would have to read something scripted, as is the case with the Miranda warning, or whether it could be more of an off-the-cuff statement like, “Do you consent to the search?”
Farmer said he did not include a scripted phrase for officers because he is not trying to increase their burden.
The most important concern voiced by members was whether the bill would result in excluding evidence from actual criminal cases. Senators feared criminal evidence might be stricken if officers neglect to inform subjects.
But Farmer said there isn’t anything in the bill that directs judges to exclude the evidence, and he brought up the fact that judges already consider whether a subject was informed of their right to refuse. He maintained that he’s “trying to strengthen, or protect, the word ‘consent’ in consent searches.”
Still, the bill’s language will need to be revised before the committee hears it again.