Lt. Dave Swords on Search and Seizure
Today’s special guest expert is thirty-year police veteran, Lieutenant David Swords (ret.) of the Springfield, Ohio Police Department. Nearly half of Lt. Swords’ police career was spent as an investigator, working on cases ranging from simple vandalisms to armed robberies and murders.
David is the author of a novel, “Shadows on the Soul.” He and his family live near Springfield.
Search Your Heart and Seize the Day
A crime writer’s primer to the Fourth Amemdment – Part 1
How many times have you heard someone complain that a criminal “got off on a technicality?”
Actually, that is a very simplistic way to summarize complex legal maneuverings, but when it does happen, the issue that is probably involved stems from interpretations of the Fourth Amendment of the U.S. Constitution, the “Search and Seizure” amendment.
The Fourth Amendment, the heart of search and seizure law, very simply says:
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.
That’s easy enough to understand, right? Yet, that short amendment has generated more case law than I would care to recount. Entire volumes have been written about search and seizure case law, but I will try to summarize it all using the “K.I.S.S.“ method. That is: Keep It Simple, Stupid.”
The Fourth Amendment says that no agent of the government (including officers at the state and local level) can search anything without a warrant, but … the courts have always recognized certain necessary exceptions to that rule, and it is those exceptions that usually cause problems in court, since the vast majority of searches and seizures are accomplished without officers first obtaining a warrant. I will try to explain many of the more common exceptions to the rule and how they may apply on the street at three o’clock on a Wednesday morning.
However, before we get into the exceptions to the rule, let me explain one issue that is very important. No discussion of searches or arrests would be complete without first defining probable cause, which is really the basis of just about everything a law enforcement officer does. At its simplest definition, probable cause is obtained by the analysis of facts that would “lead a reasonable and prudent person to believe a crime had been committed and that a particular person had committed that crime.” By the way, an arrest is considered a seizure of a person and therefore any claim of innocence can be based on an appeal to the Fourth Amendment.
A seizure of a person is an arrest.
Of course, all of the following exceptions would be moot if an officer always got a warrant signed by a judge, but that can take several hours to acquire and is just not practical in many cases.
An officer may search anything if the owner gives the officer permission to do so, and there’s no law that says you cannot ask. This seems pretty obvious, but it has been necessary for courts to spell it out when the issue was called into question. Problems can arise with shared property, as in the case of roommates or parent/child situations.
While verbal consent is legal, many departments have forms a person can sign, authorizing an officer to search a car or premises. This precludes the possibility a person could later deny having given an officer consent to search.
Driver gives consent to search his car.
Officers may seize any contraband (things that are in and of themselves illegal) or fruits of a crime that they see with the naked eye. The trick here is that they must have a legal right to be where they are when they see the item. Can officers look into someone’s window and then take legal action concerning something they see? If they are on the sidewalk or have been called to the house by the resident and are standing on the front porch, yes they can. But if they have climbed a fence and sneaked into someone’s yard, just because they want to know what that rascal is up to, they may have more of a problem in court.
Marijuana in plain view.
Stop and Frisk or “pat-down” search
This is one instance in which the U.S. Supreme Court decided that officers with reasonable and articulable suspicion (not necessarily probable cause) may stop a person they believe may be involved in criminal activity and conduct a cursory pat-down frisk of the person’s outer clothing to check for weapons. It is not really a search, but a minimal intrusion on a person’s freedom of movement, and conducted primarily for the purpose of safety.
A search incident to a lawful arrest
Officers may search a person they have taken into custody on a legal arrest. Unlike the stop and frisk, this can be a full search of a person’s clothing, purse or even the person themselves. In cases where a person is arrested and then charged with a separate crime because of contraband or evidence found in a search incident to arrest, for instance drugs, and the person is found innocent of the original charge, the evidence seized is usually admissible as long as the arresting officer had good probable cause for the original arrest. Probable cause does not necessarily have to extend to proof of guilt. An officer may have good probable cause and still have an arrestee later found in court to be innocent.
Pat-down (frisk) search for weapons.
This full search capability does not extend to persons stopped for traffic violations, since their detention is temporary and usually not fully custodial. Cont’d…
*Tomorrow – Part two of Search and Seizure with Lt. David Swords
Hi, Meriah. How does the officer get through the door?
Well, first you knock. Actually, that’s something I didn’t have time to get into, but there are such things as “no knock warrants.” But we’ll have to save that for another day.
In the scenario presented, we have an officer who needs to force entry. Operative world here being FORCE. That’s where my size 13 shoes always came in handy!
With probable cause or a warrant, officers can literally force entry. In other words, break into a door or window.
Yes, Clea, that would be considered plain view. I don’t think an attorney would argue that an officer had no right to take the knife from the person. But, that does not prove they stabbed the victim. Without witnesses, that would depend on statements made by the suspect, and that gets into the Miranda rights, which is an entirely different animal, which we may get into at a later date.
This is such great information! Thanks, guys, for posting this.
Yes, that did answer my question, thanks! Let me get a little more detailed, though. How does the officer get through the door, whether he/she has a warrant or not? Mille grazie!
Thanks so much for this!
So… to doublecheck: if a person is found standing over someone who has been stabbed, and that standing person is holding a knife, that knife would be considered “plain view”? Or is there a diff. ruling that covers such a case?
I hope I answered your question. If not, let me know. As you can see, “it’s all in the details.” One little detail can change things completely. That’s one reson you’ll hear police officials say, “This investigation is very fluid.” Small details can send you off in a completely different direction.
I agree. I preferred to work at night when I was younger. When I finally made detective I was tickled at the idea of working all day shifts. I quickly learned that being a detective meant working both day and night. Many times, I worked my regularly scheduled eight hours during the day, and then would be called out to work several more hours at night. Weekends, too.
Evenings shift was always my favorite when I ws younger. I didn’t like midnights. Loved the work, but the other 16 hours of the day were a little rough after a while.
You’d probably better use the “felony prone” search for your dog, then.
A quick answer this AM before I have to head out for an appt. If the officer saw drugs, the need to enter immediately would probably be based on the desire to get the drugs before they can be destroyed. Any indication that there is anyone in the home, or not? That would be a factor. He could call other officers to watch the drugs while he gets a warrant.
Bloody rags? That’s different. That may indicate someone is inside in need of help. That could necessitate an immediate entry. However, once he sweeps the house and finds no one, he could search no further until he has a warrant.
On a practical note, if he saw bloody rags and drugs, the arguments would be made to force entry to search for injured persons and then seize the drugs via the plain view argument. Be back later.
Finally…! Better late than never. Just wanted to say, I found this very interesting and informative. Better not get my dog to assume the position though. With one paw at the front, she end up head-butting the wall!
Great summarizing Dave you made it very clear to me.
Hmmm, 3 a.m…
Night shift was always the hubby’s favorite–fewer chiefs and indians.
Thanks for a great giggle, Lee.
I’ve got to teach my dogs how to do that! What a hoot! They already do “Paws up!” and they’ll jump through a hula hoop, one of their favorite things to do. I guess the new command will be “Assume the position!” Looks like I have a summer training project, they’ll love it all those extra cookies.
Peg H 😉
Meriah – Dave may not be around until tomorrow for part two. Please check back.
mn – We can’t tell all our secrets…
Thanks for posting, Dave.
Again, Lee, your pictures are a scream. How did you get the dog to submit to the pat-down?
I have a hypothetical question. If a detective knocked on an apartment door, then looked in the window (next to the door) and saw something illegal (drugs, say) or maybe bloody rags, what would he/she do if no one answered? Assume there’s no resident manager, or at least not at the time.
Thanks very much!
You’re right, Lee. The Lt. has never made a mistake, but David certainly has made a few!
Thank You, Vivan. Search and seizure issues are not matteers that one would spend a lot of time on in a novel, but they could turn a story 180 degrees.
Glad you picked up on the day/tme thing Terry. Next month I’ll post the exceptions for 6 PM on Wednesday. They are remarkably similarto these, but doing it this way, you can go on for years!
Dave, thank you for the information. It will help me make my writing so much more realistic.
Thanks, Lee, for all you provide for us.
Elena – You were right. There was an error. I goofed when I formatted Dave’s text over to the blog (The Lt. has never made a mistake in his life). I think it’s right now.
Fascinating post. I see nobody’s asked the ‘obvious’ question — are you going to post exceptions for the other 6 days of the week? Or times other than 3 AM?
(Ducking and running, and Lee will probably ban me for my ‘smarta**’ post, but between edits and taxes, I’m a bit punchy today. )
And I’ll bet you’ve taken enough ribbing about your name, too.
OK, OK — back to work. Looking forward to tomorrow.
Still giggling over the dog in the line up – I know I’ll spend the rest of the day coming up with a plot!
At the end of the first paragraph after the “invisible” patch of very healthy marijuana in plain sight, there seems to be an incomplete sentence. Or else I need ‘extra’ simple this morning.
Looking forward to tomorrow,
Thanks, Jordan, but I can’t take credit for the visuals, as Lee took care of all but my picture. (And sadly, I can’t brag too much about that!)
Wouldn’t it be wonderful if everyone adopted the KISS method in life? I’m sure we could all think of examples!
Hey Dave–Thanks for the interesting post and the visuals are nice. I think that dog in the frisk search is packing some contraband kibble.
Hi Dave! Happy to see you as Lee’s guest blogger.
I really like your “Keep It Simple Supid Method.” Great information!