Crime Writing: Exceptions to Search Warrants

did you bring the warrantAs crime writers, it’s crucial we get our facts right. Recently, I was approached by a police officer who loves the work I’m doing here, on the blog. To say I was honored by his kind words would be the biggest understatement since President Clinton said, “I did not have sex with that woman.” <- I stole that line from Marred, to whet your appetite.

We got to talking because, y’know, he’s a cop. My crime writer antennae was dinging–wild and fierce–not allowing me a moment of repose until I picked his brain. Turns out, he’s a fountain of information and has fascinating stories. Paws off, writers. He’s mine. But I will share the info because, y’know, that’s what I do.

In Marred, I have a scene where I needed to get my deputies into a residence using exigent circumstances. Now, I could have winged it. But what if a police officer read the scene? Here’s why we NEED to get our facts straight. Officers read crime fiction. As do judges, defense lawyers, DAs…the list goes on. Matter of fact, Officer X recently cut back to five books per month. Cut back! I know what you’re thinking. What more could a crime writer want? Thwack. Paws off.

So, I called him about exigent circumstances. Yup, got his number too, for those times when I need a quick answer. At the time, I was doing my final edits. This was the last chance I had to fix something that might be off. Officer X came through…again. I turned my gaze toward the heavens, and mouthed, “Thank you.”

He also added to Cop Talk: Crime Writer’s Dictionary, which I’ll post soon. Keep watch for that.

Searches can be especially tricky. An officer/FBI/sheriff can not just willy-nilly enter a residence because he feels like it. As such, in our stories, we cannot send him into a building because we need a way for him to find a piece of evidence. That’s cheating. A detective/FBI/sheriff must logically solve the crime. An amateur sleuth could probably get away with making connections where there were none, or hoping a course of action might lead her to solve the mystery, but if your detective does that he’ll come across as an idiot. Regardless of what your protagonist does, amateur sleuth or professional, in the end we need to base our puzzle-solving in fact, not fantasy. We also need to give the reader a shot at solving the mystery. If we have the answer jump out of thin air, we’ll have some very unhappy readers. So let’s strive for perfection by knowing our facts. Okay? Great. Here we go…

I have a prescription...

Crime Writing: Exceptions to search warrants

There are roughly thirteen exceptions to a search warrant. These exceptions are constantly being used by law enforcement officers (mainly uniformed officers). However, there are slight variations on most of these exceptions based on jurisdiction. Please keep that in mind. Each US Circuit Court of Appeals may have a slightly different ruling on how to apply these exceptions, which are continuously being challenged and changed by the courts. Also, each state may have a different procedure for each exigent circumstance and some may outright prohibit the use. 

As crime writers, we should be aware of our hero’s jurisdiction. Is she a city detective, a state investigator, or a federal agent? State and local officers not only have to follow federal interpretations of the exceptions but their state constitution and state appellate court rulings as well.

Exigent circumstances

An exigent–also known as an emergency exception–occurs when an articulable threat to life exists. 

  • Officers who hear a scream inside an apartment can force entry.
  • Officers responding to a 911 hang-up call can force entry.
  • Officers who are pursuing a fleeing subject who runs into a residence are permitted to pursue and apprehend.

Stop and frisk (better known as a Terry Stop, as in Terry v. Ohio)

This search is very specific, and often misinterpreted. An officer believes a crime is afoot (sees something raising reasonable suspicions). When he approaches a subject he notices something that appears to be a weapon, concealed in the subject’s clothing. In this case, the law allows the officer to conduct a pat search on the outer part of the subject’s clothing for the purpose of identifying whether the subject is in possession of a weapon. This ensures the safety of the officer and the public. The officer cannot manipulate any object in a person’s pockets to better identify the item. During the pat down, if an officer touches the item, it can fall into the “Plain Feel” identification, causing some type of contraband to be seized. An arrest would follow.

Search incident to arrest

This occurs when an officer physically arrests a subject. Then the officer is allowed to conduct an intrusive search of the subject and generally any place within arms’ reach of the subject. This search is for the collection of additional evidence, officer safety, and to prevent entry of contraband into a detention facility. Recent court decision ruled the arms’ reach may not always be justified. For instance, where the subject has a DUI warrant and the officer arrests him in his car, in his driveway, courts ruled that there is no articulable reason to extend the incident from an arrest search to anything beyond the person themselves.

If you’re writing a story that takes place ten years ago, say, this exception wouldn’t be on the books. So make sure the law fits the time period.

Custodial

A custodial search–aka a prison search–allows correctional staff to search inmates, their property, and their cells without a warrant, upholding the safety, good order, and discipline of a correctional institution.

Plain view

Plain view is exactly as it sounds. An officer arrives at a location, or conducts a traffic stop, and notices evidence of an unconcealed crime. The officer is then is allowed to seize the evidence, but any further search must be conducted with a warrant. Unless one of the other search exceptions exists.

Vehicle

A vehicle search–aka the mobile exception–allows officers, who have probable cause to believe the vehicle contains evidence of criminal activity, to search the vehicle without a warrant. In the event the officers can’t reasonably articulate that they had attempted to obtain a search warrant would the vehicle have to be moved and the evidence destroyed. 

Border

Border search, or customs search, takes place along the US border and allows CBP/ICE and other officials to conduct intrusive searches of any item, vehicle, or person, crossing the international border to prevent smuggling. The maritime border extends to twelve miles from the US shores. The land border can extend up to one hundred miles inland, as well as to any international aviation port of entry. 

Open fields

Open fields/Open view doctrine varies slightly by jurisdictions. The crux of the matter is criminal activity like marijuana cultivation or illegal manufacturing of liquor is occurring on a large ranch that may or may not be fenced in. Some jurisdictions allow LEOs to walk onto the property and look around as long as it is not within the curtilage of the dwelling (property owner’s home). The definition of curtilage varies by jurisdiction. The officers walking on the private property spot illegal activity afoot and can seize the evidence.

Abandoned property

This is very common. It allows LEOs to search abandoned containers, vehicles, etc… in order to identify the owner. The scenario most often used is an officer pulls up to a suspicious person, standing next to a backpack. Person denies ownership of said backpack. Officer is then allowed to search the backpack in an attempt to determine who owns it. This is usually when the officer finds contraband, as well as some sort of identification that indicates ownership. Like a criminal citation in the name of the suspicious person standing next to the bag. Oops. Busted!

Consent

Anyone in control of the location or item can grant permission to an officer to search places like a car, backpack, or house. Some jurisdictions require two controlling parties to be present and both to consent (this varies). The key to a legal consent search: the consent can be revoked at any time and the law requires the consenting party, or parties, to remain in proximity of the search, so they have the ability to revoke. 

Administrative

An Admin Search falls into the area of a regulatory search. Think of a bar to ensure a liquor license, or a gun shop has to provide info the ATF, or you’re out fishing and a game warden can conduct an admin search for your license and your cooler, to inspect your catch. The key to an admin search is regulatory in nature and not for criminal investigative purposes. If an officer uses an admin search as a “get around” for a search warrant, the evidence seized may not be admissible in court, which is called “fruit of a poisonous tree.” However, if it’s a routine inspection by, say, a game warden, and he/she looks in the cooler and finds a severed head, it is admissible, but the admin search must generally stop there and a search warrant must be obtained to gather additional evidence of the potential homicide.

Probation/Parole search

If a subject is placed on some sort of community supervision by either the courts, Department of Corrections, or Parole Board, a written stipulation can be placed in their parole/probation agreement that states the subject is subject to search at any time by a PO or a Law Enforcement officer.

Protective sweep

Officers can make a protective sweep in the event they are, say, in a living room, arresting a suspect. For their safety, the officers may do a cursory search of adjoining rooms to ensure another individual(s) is not planning to ambush them. This is not an evidentiary search, but a safety issue. The search is to account for other persons–aka protective sweep. Now, when the officer peers into the kitchen and spots a kilo of cocaine on the table, it falls back to “plain view.” The key is this. Officers must have some sort of reasonable suspicion that they can articulate as to why they believe someone may be present at the location. For instance, as the officers approach, they notice their subject scurrying past the window, inside the residence, and then hear the toilet flush. Note: some jurisdictions may vary this rule.

the cops will never find me here

For your convenience, I’ll add this post to my Crime Writer’s Resource. If you’re not familiar with this resource, read this post.

Looking for a way to commit fictional murder? Get your FREE copy of 60 Ways to Murder Your Fictional Characters. For a taste of what you’ll find inside go here.

 

About Sue Coletta

Member of Mystery Writers of America, Sisters in Crime, and International Thriller Writers, Sue Coletta is the bestselling, award-winning author of psychological thrillers and mysteries. Sue's short stories and flash fiction have appeared in OOTG Flash Fiction Offensive magazine and numerous anthologies, and her forensic articles have appeared in InSinC Quarterly. In 2017, Feedspot awarded her Murder Blog as one of the Top 50 Crime Blogs on the net. Sue's the communications manager for Forensic Science and the Serial Killer Project, and co-hosts the radio show "Partners in Crime" on Writestream Radio Network. As a way to help fellow crime writers, Sue created a team of crime experts (detectives, coroners, police captains, etc.) and founded #ACrimeChat on Twitter. She's also a proud contributor to The Kill Zone (see details in full bio -- menu bar).

23 Comments

  1. Wow, Sue! This is the best post I’ve read all day. Not only have you provided useful information about the law enforcement, but you have also highlighted how important it is for an honest writer to present authentic facts that support the statements written. Also, I had no idea that cops would want to spend more time with crime by reading outside of work!
    Steven recently posted…How Good Is Snoop Dogg Vaporizer?My Profile

    • Thank you, Steven! Oh, yeah, all my cop buddies tell me they mainly read crime novels, which I found both cool and terrifying. Get the facts wrong and they’ll give our books the dreaded eye roll. Eeek! LOL Wishing you a wonderful weekend.

  2. Your open field writing proposition, with marijuana being cultivated on the land, is a likely plot element due to the popularity of the substance. You make a nice point about the importance of getting your facts straight as a crime writer.

  3. I love reading crime dramas and mysteries. I think it’s funny that I had never thought about cops reading crime fiction. I guess they like to read too, but it just never crossed my mind. It is important to get the facts right then!

  4. I am hoping to become a published author some day. I have a few ideas for novels, and one is a crime story. I know only what I’ve seen on TV or read in books, so this article was extremely helpful! I’d never even heard of exigent circumstances, so I definitely learned something new from this. I’m excited to get to writing this story now!

    • I’m so glad you found it useful, Veronica. Take a look around and you should find almost everything you’ll need to help make your story ring true. Welcome! If you have any questions, feel free to ask. If I don’t know the answer, I can get it from one of my detective pals.

  5. A good post as always. Sue. I admire your dedication to reserch a lot. I’m learnign so much even if I don’t write crime fiction. There are so many things which are not right in fiction we read and see. It’s good to know 😉
    JazzFeathers recently posted…Pictures from IrelandMy Profile

  6. Love your posts. They are always so informative. I can’t wait to see how you put all of this info & more to use in Marred. I was actually thinking about it today while swimming & thinking of what is on my TBR next. I’m anxiously awaiting your ARC.
    Mae Clair recently posted…Cover Reveal and Pre-Order: The Experimental Notebook of C. S. Boyack #Speculative Fiction #MicroFicMy Profile

    • Aww, thanks, Mae. I was just speaking with the publisher about that. Marred’s at formatting now, so it might be a couple/few more weeks. There are a few ahead of me. It’s got cool murder scenes, with a freaky MO. But where I really went over the edge into the theatrical is in the book I’m getting ready for submission now, Wings of Mayhem. Very bizarre. It’s not easy to top yourself. How I’ll top this MO in the sequel is beyond me, but it’ll be fun trying.
      OMG, I must have lost the link to your blog, too. It seems I lost all the WP blogs I follow. I’ll hop over and refollow. Sent you that info, btw. Hope it helps!

  7. I’m so embarrassed, Sue, that I didn’t see this yesterday! I have to find a way for your blog to feed into my ‘alerts’ better, so that I get over here! And this is such an important topic, too. In fact, I use search warrant information in one of my novels, and it is vital to get it right if you’re going to do that. Thank you for this really informative post.
    Margot Kinberg recently posted…In The Spotlight: Len Deighton’s Berlin GameMy Profile

    • You have nothing to be embarrassed about, Margot. I lost all of my WP.com blogs, so please except my apology for missing so many posts. I think I’ve worked the last of the “glitches” out now, but I will have to re-follow your blog. I’m so glad you found this post helpful! You’re right; without the correct facts, we’re in trouble, especially when law enforcement officers read our books. ?

  8. This is great! Now I have a much better understanding of what a character (or real person) can or cannot do if acting law enforcement. This is a great resource, and thank you to both you, Sue, and your officer. He’s a fab resource, and feel proud that he complimented you. I love your posts. 🙂
    Amy Valentini recently posted…Exciting News!My Profile

    • Aw, thanks, Amy. Officer X is a great resource. I’m still scratching my head, wondering how I got so lucky. I’m so glad you found this useful. I’ve got plenty more where this came from, and I can hardly wait to share. 🙂

  9. A great post and interesting info, Sue (once again). From an Australian perspective I can see similarities to Australian laws.
    But I wonder how much detail we really have to go into and do our facts have to be 100% correct? It is fiction after all as I’m often reminded when I break out in a sweat.
    I think if it you add a certain amount of factual stuff it may cover for any tiny inconsistencies added to make a better story.

    I am working through comments from my editor( who also writes crime) at the moment and I’m finding myself getting stuck up to my eyeballs in forensic details, trying to come up with an explanation as to why my police officer character takes his gun home with him when it has to be locked up at the station and signed off. Grrr that was a biggy.
    My writing is more on the cozy side than police procedural, though it does cross over. Think I’ll turn to historical crime after I’ve finished Detective Jill Brennan series.

    I’d love to hear your thought on this!
    Gina Amos recently posted…Signs of SpringMy Profile

    • Y’know, I felt the same way until I discovered how many cops read crime fiction. One visit to Lee Lofland’s blog, and you’ll realize how important your facts are. To answer your question, I say make it as close to reality as possible so you don’t get slammed in reviews by a cop. Can you imagine? Nightmare! That said, can your cop break the rules? Absolutely! I needed my rookie out of the way so I had him chase a dog rather than backing up his partner. Officer X told me they do it all the time, their adrenaline’s rushing so fiercely they think the dog is a suspect. So, it’s little workarounds like that that can get you (the writer) out of tight spots. In your example, you could have the detective break the gun rule because he’s been hearing noises at night, or his wife is afraid and feels better if he’s armed at home. That would make perfect sense to a cop reading your book. Most have families who they’d kill to protect.
      As far as how much to divulge…I don’t think you need to go into every little detail. If the basics are there, and based in fact, you’re covered. For instance, you could show them enter the residence without telling why it’s legal to do so, as long as you know why.
      Hope this helps, Gina! BTW, a little birdie told me you’ve joined the toe tag clan. Welcome! LOL

  10. Thanks for sharing such cool & useful info, Sue!

  11. Another outstanding and well researched post. I can’t wait to read my ARC of your coming book.
    Craig recently posted…Boy, Oh, Boyack!My Profile

  12. This is an exceptionally well put together summary on searches, Sue. Great job! Sounds like you’ve got a good source. *Reaches out paw*

    I can think of only one other varience of invasive search and that’s compulsory security searches at airports, train stations, etc. For the most part, the security people in public transit positions are considered ‘persons in authority’ and any contraband seized can be used as evidence of statutory offences.

    Very good point about ‘fruit of the poison tree’. This is always a slippery area for investigators and admissibility of evidence gained as a result of search and seizures all comes down to probable cause and proper legal procedure. Different jurisdictions have different tolerences and it’s wise, like you say, for a writer to do their homework on the era and era in which their story takes place.

    • Thwack! Get that paw away. LOL Thanks for adding the variance. That’s important info. Officer X told me to always check with the Parole Board in my area. Good advice. Who knew they’d answer questions for writers?

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