How to Search a Home with Zero Accountability

ky home.jpgAccountability is an important part of the relationship between our government and its citizens. Sure, we citizens can’t know everything, and that’s why a small percentage of our budget is known as the “Black Budget”. Black budgets are fine, so long as they represent some covert operations overseas trying to capture the terrorists de jour. But, there are also times when the government shows up at your front door. In cases like this, you would expect some accountability.

Hopefully, you’ve never had your house ransacked by 15 storm troopers at 3:30 a.m. I haven’t either, but I’ve seen pictures, and these homes are left a wreck (home search warrants are often conducted while you are sleeping, FYI). This sort of invasion of privacy can leave quite a scar. Imagine waking up to lots of guns and men with deep football coach voices barking out orders to remain still. A search warrant requires the home occupants to sit there in their undies (or less) while 12+ armed men proceed to stare at your significant other’s revealing sleepwear. No, you can’t put clothes on, as any search for clothing may just be an attempt to destroy evidence or find a gun. As you might expect from a male dominated endeavor like a home search, somehow overweight men are permitted to put on some clothes, but the ladies are required to simply hang out in their revealing nighties–while a dozen men take turns gawking. I’m just saying.

Anyway, such massive government invasions will leave a citizen asking the simple, age old question “Why?” Believe it or not, under current Florida law you are not entitled to know why. Yes, this is a ridiculous law, and I’m here to expose it.

When a citizen wants to know “why was my home searched”, the smart ass answer would be “because a judge signed a search warrant”. No, that’s not the real answer. To get to the heart of the matter, we must ask the next logical question: “why did the judge sign the search warrant?” That’s the real question. Often, the answer is, “because law enforcement heard from a confidential informant that there was evidence of a crime located inside the home”. The probable cause underlying the warrant rests solely upon the words of an undisclosed person. To understand how absurd this is, we must go deeper.

Under the common “an informant told me so” scenario, the police didn’t see you do anything wrong. The police have no physical evidence that you’ve done anything wrong. But, they have heard that you’ve done something wrong. Sure, much of our system of justice is based upon what an investigator “hears” from witnesses. That’s fine, because we criminal defense attorneys will be challenging everything that witness says later down the road. Cross examination is the great truth finder. If that witness lies or exaggerates in order to get a home search warrant, we can get to the bottom of it and have the warrant thrown out of court. But, what if I told you that the police do not have to disclose who they heard the information from? Sounds like a court order straight out of the old USSR, right? Unnamed sources told us X, Y, & Z, so we’re entering your home. Here in America, surely we can verify these accusations later, right? Don’t we have a constitutional right to confront our accusers?

There are a few things we trust law enforcement on–without further verification. We may trust the police to tell us that a green leafy substance is marijuana. No need for a lab report there. But we don’t trust them to tell us what cocaine is. A lab analyst must verify that a substance is cocaine. Actually, the only two substances we trust law enforcement on is alcohol and marijuana. Every other drug out there must be independently verified. So, to gain entry to a person’s castle, the holy of holies, you would expect that a citizen could later verify the words of the supposed unnamed individuals. Unfortunately, there will be no cross examination of the informant whose testimony permits a search of your home. And this is the bad part of Florida law–we just have to take the cop’s word for it.

The reason why law enforcement dodges accountability on these home searches is found in Rule 3.220(g)(2) of the Florida Rules of Criminal Procedure. It states that “disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.” This is fairly simple equation. Fabricate a story told by unnamed informants, and don’t call them for trial. Voila, a signed home search warrant that cannot be questioned later by pesky defense attorneys. Teflon Warrants Incorporated.

Several Florida courts have supported the interpretation of Fla. R. Crim. P. 3.220(c)(2) that does not require the “disclosure of the identity of a confidential informant who merely furnished the probable cause for a search”. State v. Hernandez, 546 So. 2d 761 (Fla. Dist. Ct. App. 2d Dist. 1989). You heard me right. “Merely furnished the probable cause for a search.” Merely? Your home is searched, but the government doesn’t need to tell you where they got the information. You have no way of verifying what was said, or who said it–you just have to trust the government.

To get Rule 3.220(g)(2) to comply with the Fourth Amendment, the Rule should simply be changed to require “disclosure of the informant’s identity if the sole basis for probable cause within the search warrant is testimony of the confidential informant.” A home search is simply too important to have zero accountability.