As 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…
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.
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.
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 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.
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 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 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.
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!
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.
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.
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.
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.
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