I asked two of my favorite detectives (I seem to be collecting them like baseball cards, so that’s high praise!), Garry Rodgers and Adam from WritersDetective to share their police procedures and protocol to show how the U.S. differs from Canada. Gary (in blue) represents Canada. Adam (in dark red) represents the United States.
I’ve just been arrested for first-degree homicide. Please Mirandize me.
“Sue Coletta, I am a police officer and I am arresting you for the first-degree murder of Donald J. Trump. You are not obliged to say anything, however, anything you do say may be given in evidence. Furthermore, you have the right to retain and instruct counsel without delay. Do you want to call a lawyer?”
Admonition of Rights
1. You have the right to remain silent. Anything you say can and will be used against you in a court of law.
2. You have the right to talk to a lawyer and have him present with you while you are being questioned. (If under the age of 18 years you have the right to have your parent(s) or guardian present while you are being questioned.)
3. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.
a. Do you understand each of these rights I have explained to you?
b. Having these rights in mind, do you wish to talk to me now?
That is what is printed on every notebook our agency provides to its officers. We are trained to READ the admonishment every time and write in our reports that the suspect was “READ his rights from my Department-issued Miranda Admonishment card.” This helps in a defense argument that the officer did not “fully” admonish their client. “That’s a lot to remember Officer. Are you sure you remembered every part of that Admonishment? Or did you leave out a sentence?” By reading it each and every time, it kills that argument.
If the Detective is concerned that the suspect is not going to talk, he might skip the a. and b. section and just start asking questions. If the suspect replies to the question, that is called “implied consent.” The suspect’s consent to answer questions is implied by his responding to a question. Our prosecutors really prefer affirmative answers to the a. and b. sections, and to have it clearly recorded on audio.
The specific wording of the Miranda Admonishment may vary slightly from agency to agency. “Miranda” comes from a 1966 U.S. Supreme Court ruling in Miranda v. Arizona and the wording of the admonishment is taken from Chief Justice Earl Warren’s published majority opinion.
Someone called in a report of a body in a wooded field. Once you’ve had a chance to determine this is a homicide, what do you do? In other words, do you need a warrant for the victim’s home and car? She lives alone. Are there other documents you need to fill out? Please explain.
Garry: The first priority is to secure and protect the scene, then to assemble the crime scene investigators and ensure that the coroner is notified. It is illegal in Canada to tamper in any way with a dead body or the scene without having a coroner’s approval.
There is no statutory requirement to get a warrant to search a victim’s home or possessions, provided it’s done with reasonable cause. Seizing anything of evidentiary value is another thing and a warrant is required for a police officer to take anything into their possession and remove/retain it. It’s best practice to obtain a warrant when in doubt. Further, if a police officer does seize evidence, then a form must be completed so the judge who issued the warrant is aware of the search results and then must authorize the retention of the exhibits for a specified period. Extensions are routinely given.
I should also mention that under the Coroner’s Act, when it comes to death investigation a coroner has the same powers as a Supreme Court judge and may issue warrants, including their own. A coroner can search any person, place, or thing at any time if they believe there may be evidence in regards to the death. It’s policy, though, that when dealing with criminal cases that warrants are deferred to the police and the criminal justice system.
Adam: Set a gigantic perimeter to preserve the crime scene. The woods may offer tire and shoe imprints. If the body has been there awhile, the fauna above and under the body may actually help determine an estimated date of death.
For searching the home or crime scene (if it’s on private property) in the U.S., the detectives would likely get a “Mincey Warrant.” The warrant stems from the 1978 U.S. Supreme Court ruling in Mincey v. Arizona. (Are you seeing an Arizona pattern here?) The ruling essentially says that you still need a search warrant if there is any kind of expectation of privacy. Generally, these are used when the crime scene is in someone’s home or business. Vehicles are a different story when it comes to needing a search warrant in general, but in a murder investigation the detectives will generally include that in their warrant to avoid having to debate it on the stand later.
Modern Mincey Warrants will often include verbiage about allowing non-Peace Officer technical experts into the scene (such as CSI Specialists, Forensic Pathologists, etc.)
“Warrantless Searches” –exceptions to the 4th Amendment warrant requirement– might NOT extend to non-Peace Officers. So, we specifically include allowing these experts “to assist in serving the warrant” in our affidavit just to avoid a potential legal battle.
Do you need a warrant to place a GPS tracking device on a vehicle?
Garry: It depends on whose vehicle it is. If it’s surreptitiously placed a suspect’s vehicle then, yes, a warrant is required. If it’s on a bait-car, for instance, where there is consent, then no. It’s also common to put trackers or “bird dogs” on undercover vehicles for the operator’s safety and warrants are not needed.
Adam: As of 2013, a warrant is required. Prior to 2013, a battery powered GPS device did not require a warrant; a warrant was only required if we were tapping into the vehicle’s electrical system to power the GPS device.
In 2013, the 3rd District U.S. Court of Appeals in United States v. Katzin built upon the 2012 U.S. Supreme Court decision in United States v. Jones that requires court orders for all GPS trackers. This really changed how we use GPS, as we used to use it to build probable cause. Now we need to meet the probable cause standard to install a GPS device. As a result, it is far less risky to write a “ping warrant” (which also requires probable cause) to ping the location of the suspect’s cell phone than it is to crawl under the bad guy’s car and slap a tracker on.
What about wiretaps?
Garry: In Canada, wiretaps fall under Part Ten of the Criminal Code, which is informally known as the “Privacy Act”. There is also no specified term called “wiretap”. It’s called “Interception of Private Communications” up here and it pertains to any mechanical or electronic means of eavesdropping on a suspect’s conversations, whether that be on a cell, landline, email, social media, or in private verbal conversations. Devices could be anything from a telephone tap to an audio listening device (bug) to intercepting a server. I once duct-taped a running Dictaphone to the underside of a shelf in a phone booth because we knew the bad guy was about to use that phone. We only got one side of the conversation, but it was still good evidence.
Adam: Wiretaps require an even higher burden of proof to obtain than a simple search warrant. As I mentioned above, a typical search warrant requires “probable cause.” Probable Cause is a legal term that describes a threshold of articulable facts that are considered in their totality to equal adequate reason to arrest a person, search a location, or seize an article as evidence relating to a crime.
The US Courts have held that listening in to private communication is one of the most intrusive searches done by the Government, so it requires a higher burden of proof to show the Court that this kind of search is reasonable. To obtain a Court ordered wiretap, the Detective must provide an “exhaustion argument” as to what other investigative steps law enforcement has taken (or can’t be considered for good cause) that have proved ineffective in proving this case.
For instance, an application to the Court for wiretap into a drug trafficking organization would explain that the “exhaustion argument” has been met as this particular organization is counter-surveillance savvy (they can’t be followed effectively by police due to their sophistication), their threats of violence toward any members “snitching on” organization prevents law enforcement from cultivating informants, their use of multiple layers of management and personnel prevent simple search warrants on known drug locations from resulting in the prosecution of higher level leaders of the organization, etc.
The key thing is that law enforcement must show the steps that they have ACTUALLY taken (and failed at) or they must specifically state why they haven’t taken the action mentioned against this specific organization.
Whenever we talk about wiretaps, the topic of Edward Snowden and the NSA come up. To be clear, all of those cases of warrantless wiretapping were done under the guise of spying and/or national security. Criminal investigators do not have access to any of that, nor would those calls be allowed into evidence in a criminal court as it would deny the defendant of their 6th Amendment right to Due Process.
What about surveillance? Does that require a warrant, or can you follow anyone on gut instinct alone?
Garry: Physical surveillance – the good old eyeball type – is wide open to anyone and no authorization is required. But as soon as you use a surveillance device – camera, tracker, bug, or wiretap, then a judicial warrant must be obtained.
Adam: Surveillance does not require a warrant, but it must be for a “legitimate purpose.” If surveillance is NOT for a legitimate purpose, you might be toeing the line of stalking. Surveillance is one way to build your totality of facts to the point of “probable cause.”
In homicide cases, do you work on a sort of a point system? If so, how many pieces of circumstantial evidence do you need to secure an arrest?
Garry: I’m not aware of a “point” system, per se, unless you mean that a certain number of evidentiary pieces are needed to lay a charge. There are two groups of evidence – direct and circumstantial – and the number of evidentiary items could be all over the place and will be unique to the case facts.
The other day you ran a blog post on the Zodiac Killer and the topic of similar fact evidence came up. This is an arena where the numbers of similar points of evidence would have a high impact but there would still be no handcuffing on a specific amount of points required.
I should mention that fingerprint evidence takes comparison points into account and a minimum of ten similarities are generally required. There are cases where the only point of evidence implicating an accused was one, sole fingerprint and they were charged – and convicted.
Adam: We do not work on a point system. We put ourselves in the seat of the juror and the defense attorney by seeking to prove the case beyond a reasonable doubt as required at trial.
When it comes to timing an arrest (as in at what stage to make the arrest), we tend to balance strategy and public safety.
Most often, we will arrest the suspect as soon as we are legally able to. However, I have worked cases where the motive of the murder was so specific (in one instance it was the murder of a son-in-law that was suspected of abusing his own child) that not arresting the murderer right away allowed us to conduct further surveillance and wiretapping. In those cases, that helped us gather more evidence to prove our case while still being reasonably sure that the suspect wasn’t going to kill anyone else while still out of custody.
A man reports his wife missing. After an exhaustive search, your gut screams that he killed her. But there’s no body. He allows you into his house, but there’s no trace of any wrongdoing. After several rounds of interrogation, the husband stops cooperating. What would be your next step? Can you force him to talk to you? Can you force him to give up his DNA in case you find a way to connect him later? If so, how? Remember, right now there’s no circumstantial evidence. You’re working on gut instinct alone.
Garry: It’s completely forbidden in Canada to force a person to talk and there’s no warrant provision available through any court to force a person to verbally incriminate themselves. The right to remain silent is sacred here. Always has & always will be. Any cop who tries forcing a suspect to talk is probably going to be looking for a new job. Tricking them, like through an undercover sting is another matter because it’s not viewed as the suspect thinking they’re dealing with a person in authority and those kinds of statements would be viewed as voluntary.
Getting DNA is a little different from getting someone to talk. There is legal provision for getting a DNA warrant and forcing a suspect to provide a biological sample. But in this case, where you have nothing to go on but your gut, and he’s not cooperating, then you’re left to your own creative resources. Can you get his cigarette butt? His coffee cup? We nailed one guy for murder after fishing his Kleenex out of the garbage after he blew his nose.
As for the next step, well… there’s always some way to further an investigation. You just gotta get creative.
Adam: A hunch is something you get high in your back; not a legally approved investigative tool…but I always listen to my gut. 🙂 Barring any evidence to the contrary, we would keep the case open as a Missing Person investigation. We’d certainly be mindful that this is a possible homicide investigation and continue to follow up on any leads, use any legal means to monitor financial activities, lifestyle changes, etc. that might indicate the husband had a motive. It is very hard to prove a murder case without either a body or evidence that she is no longer alive (i.e. a large enough quantity of her blood to prove that she could no longer be alive.)
Can we force him to talk? No.
In this scenario, we probably would not have enough to get a warrant for his DNA, nor would we really need it at this point. We don’t have a crime scene to place the husband in. If the crime scene was inside the family home, his DNA wouldn’t prove anything.
Once we found a body or had a location we needed to tie the husband to, THEN we’d try to get a warrant for his DNA. The DNA is usually obtained via a buccal swab. (Essentially a Q-tip rubbed around the inside of the mouth to collect cells from the inner cheek and gums.)
However, let’s go back to strategy and not wanting to tip our hand in the investigation. Again, assuming we have a crime scene and we need his DNA to test against evidence found there, we might use a surveillance team to collect DNA evidence he discards. So if he blows his nose into a tissue or discards a soda cup with a straw into a trash can while out in public (and we can articulate that the DNA sample came from the suspect), we could use that DNA sample for initial testing.
If that DNA sample collected from the trash matched the crime scene sample, that would be enough probable cause to get further warrants (either for DNA testing where it’s a controlled sample collection, an arrest warrant for the suspect’s involvement in the murder, or possibly a wiretap investigation.)
If we did have this DNA match from the surreptitiously obtained DNA sample, I would first seek a wiretap for the suspect’s phone. Then, I would seek a search warrant to obtain the suspect’s DNA via a buccal swab. Again, to use strategy: by having the suspect come in to give a DNA sample, I increase the likelihood (and the psychological stress) that he will then talk about it to someone via the telephone we are listening to. We call this “tickling the wire.”
Lastly, do you know of any glaringly obvious differences between the two countries?
Garry: First, I think the main difference might be that it’s easier to get evidence admitted in Canadian courts. While we don’t have Miranda or some of the other restrictive court rulings, we have an all-encompassing, constitutional legislation called The Canadian Charter of Rights and Freedoms before which all other laws must bow. It’s got a deadly little section in it that deals with any action which “may bring the administration of justice into disrepute.” This is a two-headed coin and the courts are bound by this in deciding whether or not to allow evidence into a proceedings. It’s long held that disallowing an important and relevant piece of evidence just due to a technicality would be viewed as disreputable by the common person and, therefore, must be allowed. I think the Canadian justice/legal system is not as tightly restricted as the American one when it comes to the “fruit of the poisoned tree”.
Secondly, our paper currency is much prettier than yours, but for some strange reason, yours is worth 30% more. Go figure. But it works great for a Canadian like me who’s selling books on Amazon because I get paid in US dollars. 🙂
Adam: Yes! We have 70 degree weather in February and our uniforms aren’t nearly as cool looking!
Garry Rodgers is a retired homicide detective and forensic coroner, now bestselling crime writer. Garry lives on Vancouver Island on Canada’s west coast and host the popular blog DyingWords.net. Connect with him Twitter: @GarryRodgers1
B. A. “Adam” Richardson is a working detective in California. He is also a teacher. Adam created WRITERSDETECTIVE to help authors and screenwriters add realism to their fiction writing. You connect with him at his website: www.writersdetective.com or on Twitter: @writersdetectve
On Facebook: www.facebook.com/badamrichardson