22 July 2014

Search And Seizure

by David Dean

A few months ago I had the honor of presenting at the annual Pennwriters conference in Lancaster, PA.  As some of you may remember, I had definite qualms about whether I was up to this task as it lay outside my comfort zone.  In the event, nothing was thrown at me, and those that had not actually fallen asleep, said they found my talk very soothing.  So I counted my class on short story writing an unqualified success.

The attendance at my next scheduled effort, a presentation on police procedures and crime fiction, was much better attended.  The organizers had apparently spread the rumor that this event would feature an open bar.  They failed to specify that it was a coffee bar.  Still, the attendees remained, perhaps thinking that the "real" bar would be thrown open as soon as I finished talking.  In order to hasten that moment, several of the more enterprising began asking questions almost as soon as I was introduced, thinking no doubt that the quicker they talked me through this, the better.  These had probably attended my earlier lecture.

Their questioning revolved largely around a central theme--what the police can...and can not do...legally.  In other words, police power.  This is an issue which police officers themselves wrestle with on a daily basis.  If we rely on crime fiction (especially the Hollywood style of fiction) to inform us, then we would conclude that there are no meaningful limits or controls on law enforcement officers.  If the featured officer is a good guy, then he is justified in doing almost anything to achieve justice--and he does.  But benignly, of course.  When the opposite is true, the bad officer is characterized as an out-of-control criminal in uniform, and suddenly rules matter once more.

But what are the rules?  It's a big subject as my fellow SleuthSayers who have been involved in law enforcement, or criminal law, know.  Still, one good place to begin is with the issue of search and seizure.  And for that, we must turn to the Fourth Amendment of the U.S. Constitution. 

In essence, this is the guarantor that our homes, persons, and property will be protected from unreasonable searches and/or  seizures.  For a search or seizure to be considered reasonable normally requires a search warrant.  Getting a search warrant, as R.T. Lawton knows I'm sure, is seldom something that can be accomplished quickly or easily.  It usually involves a good deal of investigation, followed by a written affidavit describing in detail the officer's probable cause for the search and its necessity.  Additionally it must carefully describe the premises to be searched, and as exactly as possible, the object of the search.  It then goes through several layers of review by prosecutors before it, and the investigating officer, must appear before a judge.  That same officer is often responsible for preparing the actual warrant, as well, which is the document that the affidavit supports.  Then the judge will give it the thumbs up, or no, and it isn't always a slam dunk.  Sometimes he will demand info that he feels is essential to the warrant but is not currently included.  Then it's back to the drawing board.  All of this can take hours, days, weeks, and even months to accomplish the goal of entering someone's home to legally search it.  This is most often the work of detectives and investigators. 

The uniform, or plainclothes street officer, works in a very different environment and often finds himself operating within the happening-right-now-and-what-are-you-gonna-do-about-it world.  Decision-making gets telescoped into minutes or seconds, and there are no judges or lawyers working the night shift or responding to calls with the officer.

Because of this the courts have recognized that there must be exceptions to the warrant requirement.  On the face of it the idea may sound shocking.  But if some exceptions weren't carved out, an officer in hot pursuit of a murder suspect would have to wait outside the front door if he failed to catch up to him before he got inside.  That would be unsatisfactory in the extreme, and also boring. 
Warrant?  I don't need no stinkin' warrant.

So here they are--the exceptions to the search warrant requirement:

1. Search Incident to Lawful Arrest: Kind of a no-brainer, I think.  When a person gets arrested the officer is allowed to search both his person and the area within his reach, or "wingspan".  Of course you need probable cause to make the arrest, which can be defined as more than reasonable suspicion but less than the evidence required for a conviction.  That shines a light on it, doesn't it?  P.S.  Since this was written the Supreme Court has ruled that cell phones recovered in such situations are excluded from this exception and require a search warrant.  I need time to digest this one before commenting.

2. Plain View Exception: No warrant is required if the officer can see evidence in plain view (narcotics, for example) and  he is legitimately in a position to do so.  For example: He responds to a home to administer CPR to an unconscious victim, and sees on the nearby coffee table a mirror with a mound of white powder and a razor blade on it.  Plain view would probably not apply to that same officer using a pair of binoculars from a block away to see the same thing.  

3. Consent: Suspects can, and sometimes do, give their consent to enter and search their property.  The person giving the consent must be reasonably believed by the officer to have the authority to do so.  Here, in New Jersey, Consent to Search forms are used to document the transaction.  It helps to repudiate later claims that the consent was not freely given.  As for blood stains found on such documents, these are easily explained away as the result of paper cuts.  The suspects are also advised that they do not have to give consent and may stop the search at any time.  And yes, they do sometime give consent even though they are in possession of something naughty.  My theory is that they think cops are slow-witted and can never, ever figure out where they have so cleverly hidden the contraband.  Sadly for them, it is most often not the cop who is slow-witted.

4. Stop and Frisk: A police officer may stop and frisk a person if he has reasonable suspicion that he may be armed and dangerous.  This is more than mere suspicion, but less than the level required for probable cause.  That's illuminating, isn't it?  It is worth noting that a frisk is a pat-down of outer clothing for the officer's safety.  He could progress to an actual and more thorough search of the suspect if he encounters what he believes to be a weapon during the pat-down.  Kind of a "plain feel" exception.  Though the person has not been arrested, he has been "seized," hence the need for the exception.

5. Automobile Exception: This actually applies to any vehicle, including boats.  If the officer has probable cause to believe that the vehicle contains evidence of a crime, contraband, etc...he may conduct a search for the item he believes may be present, but only in the areas where such an item could be hidden.  E.g. He can't look in the glove compartment for a robbery suspect; though he may search there if he is looking for a gun used in a crime.  This exception is allowed because of the highly mobile nature of vehicles.  If the car were parked in a driveway without an operator, a warrant would be needed. 

6. Emergencies and Hot Pursuit: If evidence is in danger of being removed or destroyed the officer can utilize this exception.  This is also the one that covers the fleeing suspect I mentioned earlier; allowing the officer to continue his pursuit onto and into private property without a warrant.  Even if the property is that of a third party.  Here's one for you: If during the apprehension of this fleeing suspect inside a very surprised John Q. Bystander's house, you see that John Q. is building a bomb, you can go ahead and arrest him, too, under the Plain View exception.  Then both men can be searched Incidental to Lawful Arrest.  What fun you're having!

The exercise of any of these exceptions often lead to a probable cause hearing after the fact.  This is the defense attorney's opportunity to have thrown out any evidence that the officer discovered as a result of the search.  The officer's interpretation of the search warrant exception utilized, as well as his understanding of the events leading up to it will be called into question.  This is not only a matter of checks and balances, but quite likely the suspect's best chance of beating the charge.  If the judge rules that the officer misused the exception, or otherwise overstepped the constitutional boundaries of the Fourth Amendment, the evidence will be thrown out and his case most likely dismissed.  The fruit of the poisonous tree doctrine states that evidence illegally obtained is tainted and cannot be used in court against the defendant.

Well, that's enough for today.  I'll see you all back in your seats in three weeks.  Until then--Bar's open!





  1. David, you've done it again. Given us some valuable information in a way that even I, who have never written a police procedural, can understand and use. My bar is now open with some great cinnamon flavored coffee, my favorite flavor, so thanks for information that I hope will be used in writing, not as my crying out, "You can't do that" if I'm ever arrested.

  2. Lots of good information- and I'm glad your presentations went well.
    Academic groups are rarely too lively!

  3. I'm glad you found the info useful and interesting, Fran and Janice. I taught search and seizure at our local police academy for about five years and always enjoyed it. My favorite part was having the candidates participate in scenarios. The results were sometimes comical, but always interesting. I would venture to say that the average cop knows more about the rights of U.S. citizens than the average citizen ever gave any thought to.

  4. I snorted tea up my nose reading, "My theory is that they think cops are slow-witted and can never, ever figure out where they have so cleverly hidden the contraband. Sadly for them, it is most often not the cop who is slow-witted." Amen! Great article!

  5. Eve, I'm glad that I was able to bring a smile to your lips today. Yes, I can imagine that you've met quite a few of those super-smart guys.

  6. Great stuff, really helpful for the kinds of stories I write. Looking forward to the Miranda post.

  7. Fantastic column, David. Some great and useful information here.

    I always enjoy reading SleuthSayers columns, but I don't save them all. This one I'm bookmarking.

  8. David, well written.
    In later years when we had a FedEx or UPS delivery of illegal drugs, we typed up an advance warrant describing the package, the residence to be searched and how the package would be delivered. Then, when the package was actually delivered, we telephoned the judge for a "telephone warrant." having previously read the warrant, the judge than gave verbal approval over the phone and we hit the house.

  9. >those that had not actually fallen asleep, said they found my talk very soothing.

    That cracked me up. Further thoughts:

    1. Regarding exception 1, requiring a warrant sounds reasonable to my lay ear. Why? (1) If the phone’s taken into custody, then both a right to privacy is preserved and the state’s right to search at its leisure is maintained. (2) A sophisticated criminal may have programmed the phone to self-destruct its contents if opened in unfamiliar hands. This is wise in another regard if the phone had been rigged to set off, say, a bomb or other nasty surprise.

    By obtaining a warrant and opening the phone in a lab, there is a much better chance of preserving evidence than in the field. The one downside I can foresee is exigency of time, say some kind of emergency crisis where a crucial piece of evidence may be locked in the phone.

    2. Someone recently sent me a news article where a cop demanded to search a car for drugs and the owner strenuously objected, demanding a lawyer, if I remember right. The funny thing is that both were right– and wrong. The officer spotted a moldy french fry in the back seat of the car (yuck!) and thought it was weed. I’m not sure if there were any legal repercussions.

    3. Here in Florida, consent to search is often given. Deputies explain to drivers that unless they ‘freely’ give consent, they will take the keys and radio in for a search warrant, which can take hours, especially when the temperature and humidity are both near 100– and far, far higher in the driver’s car without keys to turn on the ignition. No coke machines nearby, no water fountains, no ice. Then when the warrant comes, the officer calls for a flatbed transport to tow the vehicle from the highway to be investigated and possibly disassembled in a police garage. This process can take days, even weeks. Further motivation can come from testing the currency in wallets and purses, without telling the driver that in Florida chemical markers for cocaine occur in something like 99.99% of cases– and almost certainly in the wallet I’m sitting on now. Refusing to consent freely in Florida can certainly spoil a vacation.

    Thought-provoking article!

  10. Peter, I read the first of the stories in your line-up and enjoyed it very much!

    You do me great honor, John!

    R.T., I'm familiar with the telephone warrant, but have never had occasion to use it. It sounds very useful.

    Leigh, I'm not too concerned with the cell phone wrinkle for many of the reasons you mentioned.

    As for the car situation, if the officer truly thought he saw a joint laying on the seat, he could've searched the car without permission. Once he discovered it was a fry, he would have had to stop, of course. And pray that no one in his department ever found out about it. I can just hear it now--"Hey everyone, here comes French Fry! Was it MacDonald's, or B.K., dude? What up, F.F.?"

    The problem with number three is that they couldn't get warrants without probable cause, and if that did have PC they could've search the cars without a warrant anyway under the automobile exception. As for the coke powder, that's true across the nation due to the widespread use of cocaine. This has, pretty much, invalidated that as PC.

  11. Nice! Thanks, David! Again I'm cutting and pasting your column to my research files (I have a lot from you and RT in there!). This level of knowledge is one of the reasons I (so far) have stayed away from writing stories detailing police procedure. One day...

  12. As usual, David, you provide invaluable information difficult to otherwise obtain. Great stuff, buddy!


  13. Ironically, Stephen, I'm in the midst of a procedural tale in which I'm bending a few rules for the sake of forward momentum. The saving grace is that the protagonist knows the rules, he's just choosing to skirt a few (which I appreciate him doing).

    Dixon, I'm glad that I've provided something useful. I'm not often accused of that.


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