Law and Fiction: Getting the Facts Straight 7

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Getting the Facts Straight: Search Warrants
(First published in the Sisters in Crime Guppy Newsletter, First Draft)

Let's talk about search warrants.

Last month, I read a mystery that really ticked me off. The protagonist -- a police officer -- is investigating the murder of a prosecutor. He suspects the murder is related to a twenty-year old case. Back then, a drug task force unit armed with a search warrant set up a raid on a reported drug dealer's apartment. As they prepared to break down the door, someone inside shot and killed an officer. While the killer fled, other officers broke into the apartment and seized evidence, including a gun bearing the drug dealer's fingerprints. But at the dealer's murder trial, the victim's partner tearfully admitted he had obtained the search warrant with information from a confidential informant whom he could not identify or produce -- he knew only the informant's street name and the man could not be found. Reluctantly, the judge dismissed the case. Twenty years later, tensions among the surviving cops are still high, and a new prosecutor's zealous determination to reopen the case may have led to his murder.

Except that it wouldn't have happened that way.

The initial warrant may well have been faulty. But once shots were fired from inside, a new crime had been committed and no warrant was required for officers on the scene to enter and search for people -- or evidence -- in plain view. They couldn't rifle through drawers searching for drugs or stolen cash without an additional warrant, but they could have seized the gun and drugs spread out on the kitchen table, and secured the apartment until warrants could be obtained.

Search warrants are often in the news, and often used in mysteries and crime novels. Let's start our discussion at the beginning, the Fourth Amendment to the Constitution of the United States:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Most state constitutions include a similar provision.

In a nutshell:
-- no unreasonable search and seizure.
-- no warrants without probable cause, supported by oath and particularity.

The missing element in the case above was the evidence supporting the warrant. When an officer applies for a warrant based on knowledge obtained from someone else, he must be able to articulate specific reasons why that information is reliable. If he can't produce the informant to testify, he must identify the informant -- unless he can establish that doing so would put the informant in mortal risk -- and why the informant is reliable. Past reliability is generally sufficient.

On my first day of law school, Professor Blakey roared from his podium: "Remember this. The police do not need a warrant to make an arrest in a public place." That's still true.

If the person is in a private place -- his home or someone else's -- police need a legal right to be there. That right can come from:
-- a warrant allowing police to search the place,
-- a warrant for the arrest of someone reasonably believed to be there, or
-- consent from an adult whom the officers reasonably believe has a right to consent.

No arrest warrant is needed in exigent circumstances, such as when an officer witnesses a crime, or is pursuing a person suspected of committing a crime. A "mere suspicion" that evidence will be found inside does not create an exigency.

An arrest warrant can be thought of as the legal right to seize a person. A search warrant is the legal right to search for -- and seize -- a person or thing shown to be involved in a crime.

While procedures for obtaining and executing warrants and the use of confidential informants are beyond my scope here, I want to touch on a few specifics.

Both arrest and search warrants must be based on probable cause, that is a showing of good grounds to believe:
-- the person sought was involved in committing a specific crime, or
-- the items sought are evidence of a specific crime, e.g., they were used or obtained in committing the crime, or prove a link to the crime.

Another type of warrantless seizure is the "stop and frisk," where an officer stops a suspect and frisks him for guns, knives, or other weapons. Any evidence found in the course of a reasonable patdown to protect the officer's safety may be seized and the person arrested. An officer gets a report that a person fitting the suspect's description stole a diamond ring from a jewelry store a block away. He may stop the person for questioning. If the suspect is wearing a ring matching the description of the stolen item, the officer may ask to see it. If there is reason to believe his own safety is at risk -- the robbery was at gunpoint, the officer sees a gun-like bulge on the suspect's hip, or the officer knows the suspect usually carries a Bowie knife -- he can frisk the suspect and seize the weapon. But he can't pat the suspect down solely to search for that ring. He must build the trail of evidence leading to that suspect -- and the jeweler's description may be enough.

But if the stolen item was larger -- a 2x4 inch prescription bottle filled with Oxycontin. If the officer frisks the suspect for a gun and feels the bottle in a pocket, can he seize it? Probably. At the very least, he can ask the suspect to remove it -- or do so himself if he still fears for his own safety. The officer can then ask questions -- or make an immediate arrest if the bottle bears the name of the victim.

Valid search and seizure complete, with no warrants required.

Other valid, warrantless searches are those made pursuant to arrest, or to prevent the destruction of evidence. While one officer cuffs a suspect, his partner may follow the suspect's girlfriend into the bathroom to prevent her from flushing the cocaine they were packaging down the toilet, or prevent her from feeding papers that establish accounting fraud into the backyard barbecue.

Professor Blakey always grinned when he talked about "the fruit of the poisonous tree" -- the principle that evidence obtained as a direct result of a constitutional violation must be excluded from trial unless the prosecutor can establish that the evidence would inevitably have been obtained through other legitimate means. The professor grinned because the exclusionary rule sprouted so many interesting appeals and tricky rulings. The plot described above turns on a misapplication of the exclusionary rule.

Expectations of privacy are another key factor in search and seizure. May officers who stop a driver suspected of DUI open a closed container in the back seat? What if the container is a padded rifle case? Not if they've safely removed the driver so he can't get to the gun. What if he wasn't alone? What if he's suspected of an armed robbery committed with a rifle?

Okay, so you've answered those questions. What if he was suspected of selling marijuana? If the driver is alone, and there's no gun-shaped objects in plain sight, can officers search the car's trunk? No -- they'll need to seize the car and get a warrant to allow them to search for drugs stashed under the seat, in any closed containers, or in secure spaces such as the glove box or trunk.

But what if the driver had a passenger, who suddenly reaches underneath the seat? The officer can do whatever is necessary to reasonably protect himself -- so he orders the passenger out, hands up, to make sure she isn't reaching for a gun. Later, back at the station, he can apply for a warrant to search under the seat for drugs, or in some states, weapons.

You may not have thought the Fourth Amendment to the United States Constitution had much effect on your daily life -- assuming you're not a criminal. But if you're writing crime, it's key. And it's part of the foundations of freedom and independence in our country. I've only just touched on it here. If your writing raises Fourth Amendment questions, drop me a line.

So what should the author of the book I've described have done differently? He wanted to create tensions between the prosecutor, the surviving partner, and the detective who actually provided the informant's tip, to bring both detective and drug dealer into present action and cast doubt and suspicion on the detective. He could have let the prosecutor in the original trial make the right legal arguments -- that officers could enter without a warrant to prevent further crime and stop the suspect from fleeing, all questions about the validity of the warrant that brought police there aside. Let the judge make the wrong decision. Let the fingerprint evidence be suspect, or inadmissible because of errors in evidence-gathering or examination (as in the O.J. Simpson trial). Let the shooter escape and resurface years later, so no trial ever occurred.

It's fair in fiction to exploit ambiguities in the law, or to rely on something that's possible, if improbable. But it's not fair to the reader to build a plot on a deliberate misrepresentation of the law.

Don't you let me catch you doing that.

A 1984 graduate of Notre Dame Law School, a former law clerk to the Washington State Court of Appeals, and a lawyer admitted in Washington and Montana, Leslie Budewitz lives, writes, and practices law in northwest Montana. If you have a question about a legal issue in your fiction, please browse her website, www.lawandfiction.com or email her at leslie@lawandfiction.com.

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