Archive for May 3rd, 2011

May 03 2011

13 Legal Warrantless Searches in the United States

I provide advice about how to write novels, comic books and graphic novels. Most of my content applies to fiction-writing in general, but I also provide articles specifically about superhero stories.

If your characters are police officers, warrants are a hassle.  They’re designed to be (so that the police can’t just intrude on citizens’ privacy without cause).  To obtain a search warrant, the police must show a judge that they have “probable cause” (substantial evidence demonstrating that they’re likely to find evidence of a crime at the location or on the person specified on the warrant).

 

Reasons why a character might not be able or willing to obtain a warrant:
 

  • Time.  Under the best of circumstances, a police officer can get a warrant within an hour, but in smaller towns, there might not be any judges on duty in the middle of the night.  Also, judges will be slower to respond if the case is less urgent (i.e. no lives are at stake).
  • The police may not have probable cause yet.  Gotham’s police may find it suspicious that Bruce Wayne always seems to disappear right before Batman shows up, but that isn’t enough to get a search warrant for Wayne Manor.
  • Search warrants come with limits attached.  For example, if the police/district attorney can convince a judge that a murder victim’s body has probably been stashed at a house, the judge would probably allow a search of the house but only places where a body would fit. If the police started searching drawers or other small containers, any resulting evidence would probably be inadmissible.

So let’s say an American police officer doesn’t have a search warrant.  Under what circumstances can he legally search?

 

1.  The suspect voluntarily lets officers inside and/or consents to a search. “Hello, I’m Detective Smith and I have some questions.  May I come inside?”  If an owner lets the officer come inside, anything within plain view of the officer is admissible as evidence.  If an owner consents to a search, anything found is admissible.  Note: Consent must be freely and knowingly given.  If the officer uses deception or threats to obtain permission, any resulting evidence will probably be thrown out at trial.

 

2.  In certain circumstances, permission may be given by a third party. Third parties are almost always more receptive to searches because they have less reason to fear the police than criminals do. 

  •  A spouse (or anybody with equal rights to the property) can let police search.  Frequently, spouses don’t know about the criminal activity and will let the police look around if asked nicely.  One really effective tactic is emphasizing the possibility that the search may help clear the suspect.  (“We’ve received some troubling information about your husband and we’d like to clear his name as soon as possible.  Do we mind if we look around? We’ll leave everything like it was and you can watch us.  Or we can come back with a warrant later, but it’ll be messier”).
  • An employer can let police search a workspace (including lockers and computers).  “We’ve received some troubling information about your employee.  Could we check his computer?  We’ll be real quiet.”  Note that a manager may be leery about offering access if she fears that the company is somehow involved in the crime.  If so, police can gently prod the manager with veiled threats like “We can come back later with a warrant, but if we do, we’ll have to cordon off the building.  It’d be bad for business.”
  • Police can ask school officials for permission to search the lockers, purses and backpacks of minors without a warrant.  School officials don’t have much reason to decline such a request (they hate crime as much as the police do).
  • When a child lives with his parents, a parent can allow police to search the child’s space unless the child pays rent or has otherwise established exclusive, private ownership over his space.
  • A host can allow police to search a guest’s quarters. A landlord cannot.
  • Hotel employees can let police search a vacant room.  See #9 for more details.
  • Store-owners are usually very cooperative about sharing surveillance footage.  But you’ve got to be fast!  Many stores cut down on costs by retaping over old footage every few days.

 

3.  Exigent circumstances–action is immediately necessary to prevent physical harm, preserve evidence or prevent a suspect from escaping. For example, let’s say your officer is on patrol when he hears a scream from inside a building.  He would be entitled to force entry to investigate a possible assault in progress.  Anything he sees in the course of investigating this possible assault would be admissible, even if it wasn’t related to the assault (e.g. drug paraphernalia).

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