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  #1  
Old 12-26-2011, 08:31 PM
IMfez IMfez is offline
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Do police have to show the actual search warrant to you?

About a year ago I saw a video (which I can't find now) where the police were in confrontation with a dad on the doorstep of his house, because they were searching for his child (regarding some crime) The parents demanded to see a search warrant to let the cops in. The cops said they had a warrant but it was in the computer (in their car) and "If you don't step aside you're going to jail." Not knowing what to do, the dad eventually caved in and the cops started searching the home.


Is this legal? I thought the cops had to present you with a warrant in the US. Seems that in the above example, the cop could have easily faked a warrant.
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  #2  
Old 12-26-2011, 08:38 PM
alphaboi867 alphaboi867 is offline
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IANAL, but faking a warrent would serve no purpose. Any evidence the police found wouldn't be admissible in court.
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  #3  
Old 12-26-2011, 08:54 PM
typoink typoink is offline
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IANAL either, but I woulda said that's the POINT of a warrant. My understanding has always been that a cop needs your permission to search WITHOUT a warrant. To search without your permission, that's what the warrant is for.
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  #4  
Old 12-26-2011, 09:10 PM
zombywoof zombywoof is offline
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Ever see them yell "Search Warrant" and bust down someone's door in the middle of the night (without showing anything to anybody) on a show like "Cops"? IANAL either but I assume they wouldn't be doing so if it weren't legal.

Last edited by zombywoof; 12-26-2011 at 09:12 PM..
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Old 12-26-2011, 11:57 PM
kopek kopek is offline
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Like everyone else IANAL but I believe at some point you have to physically be handed something that passes as/for a search warrant in your jurisdiction. They may have broken down your door and already handcuffed you and looked for things in plain sight, but there is going to be sore sort of piece of paper involved. And get a copy for the defense attorney. Lets say the police kick in your door at noon and the warrant shows it was signed and issued at 12:10 or it has the wrong date or address ------- you may just have had the luckiest day of your life.
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Old 12-27-2011, 02:09 AM
appleciders appleciders is offline
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Originally Posted by kopek View Post
Like everyone else IANAL but I believe at some point you have to physically be handed something that passes as/for a search warrant in your jurisdiction. They may have broken down your door and already handcuffed you and looked for things in plain sight, but there is going to be sore sort of piece of paper involved. And get a copy for the defense attorney. Lets say the police kick in your door at noon and the warrant shows it was signed and issued at 12:10 or it has the wrong date or address ------- you may just have had the luckiest day of your life.
This is, I think, correct. You will have the warrant in your hands as they search your house, and unless they suspect that they could be walking into an ambush, they'll probably ring your doorbell, hand you the warrant, and let you stand outside and read it while they search. However, if the cops believe that it might be dangerous to warn you that they're about to do a search, they may break down the door, cuff you, and then hand you the warrant.
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  #7  
Old 12-27-2011, 02:36 AM
JBDivmstr JBDivmstr is offline
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Originally Posted by IMfez View Post
About a year ago I saw a video (which I can't find now) where the police were in confrontation with a dad on the doorstep of his house, because they were searching for his child (regarding some crime) The parents demanded to see a search warrant to let the cops in. The cops said they had a warrant but it was in the computer (in their car) and "If you don't step aside you're going to jail." Not knowing what to do, the dad eventually caved in and the cops started searching the home.


Is this legal? I thought the cops had to present you with a warrant in the US. Seems that in the above example, the cop could have easily faked a warrant.
(bolding mine)

IANAL
IIRC, 'searching for someone involved in a crime' without a warrant, is only allowed in the case of a felony crime when the perpetrator is known (or reasonably suspected) to be on the premises.
As others have already said, if the cops have a warrant it will be presented. It might be after they've kicked the door in and you're in cuffs, but they will have a physical document to present to you. For one thing, the warrant will (should) state exactly what they are searching for.

In the case of a child being abused or neglected, there is no requirement for a warrant. The cops are going to come in and verify whether or not a child is 'in harms way'. I'm not sure whether or not they can act upon any other illegal things that they observe.
Again IANAL, BUT this is my understanding of the law here in Texas. YMMV
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Old 12-27-2011, 03:33 AM
Floater Floater is offline
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Originally Posted by JBDivmstr View Post
IANAL
IIRC, 'searching for someone involved in a crime' without a warrant, is only allowed in the case of a felony crime when the perpetrator is known (or reasonably suspected) to be on the premises.
Neither am I

At least in Sweden a police office is allowed to frisk you or do a house search without a warrant if there is a risk that you will get rid of evidence if it's not done at once and all conditions for issuing a warrant are met.
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  #9  
Old 12-27-2011, 04:07 AM
SeaDragonTattoo SeaDragonTattoo is online now
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I was on some ride-alongs for a few weeks, a long time ago, with an animal cruelty investigation team. They served a warrant on one of the rides I was on. They had to work very closely with police as they weren't officers themselves, and they wrote the request for the warrant together. It was a search for fighting dogs and the paraphernalia for training and fighting.

While the fine particulars are fuzzy, I remember the warrant had to be very specific as to exactly what the search was for and also had to list specifically where they wanted to search. Like if the property had a detached garage, basement, or shed, those had to be specifically listed. If they weren't, they could not be legally searched.
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  #10  
Old 12-27-2011, 09:19 AM
RealityChuck RealityChuck is online now
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Originally Posted by zombywoof View Post
Ever see them yell "Search Warrant" and bust down someone's door in the middle of the night (without showing anything to anybody) on a show like "Cops"? IANAL either but I assume they wouldn't be doing so if it weren't legal.
That's a "no-knock" warrant, which can be issued if circumstances call for it (e.g., in a drug bust where the suspects could flush the evidence down the toilet when you knock), but is not standard.

Other than that, in the US, the cops are required to show you the warrant.
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  #11  
Old 12-27-2011, 09:23 AM
md2000 md2000 is offline
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I get my fine points of law from the news and L&O, but for what it's worth -

The warrant is to ensure that police only have a good reason to search what they search. They can't be on a fishing expedition looking for any reason to charge the perp. If the grounds for the warrant are found to be too flimsy, the search results may be inadmissible.

For example, in one case the son is suspected of drug dealing or something; the warrant said the son's room and common areas. The father warns the police they cannot search the study, it is his private office. If they are looking for, say a gun or a pair of shoes, they cannot search a pile of papers or open something too small to contain what they are looking for.

The OP however brings up an interesting detail. The cops probably had an arrest warrant for the kid, not a warrant to search the house. IIRC the police can only enter a residence in hot pursuit, i.e. if they are chasing someone and thought they saw him go in there. Otherwise, I think they need a warrant to enter the house, which means they need reasonable grounds to believe he is there.

An arrest warrant of itself does not give the police free reign to march in anywhere they want. I suppose reasonable grounds for a search would include "this is where he lives" or "The neighbour reported seeing him enter 5 hours ago". I also suspect the search warrant can only be executed once, it's not a license to keep marching in evey few hours until the person is found. Each new search would require a new warrant with a new grounds for expecting the perp to be there. Eventually a judge might get tired of the keystone kops routine.
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  #12  
Old 12-27-2011, 09:30 AM
Broomstick Broomstick is offline
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Originally Posted by md2000 View Post
The OP however brings up an interesting detail. The cops probably had an arrest warrant for the kid, not a warrant to search the house. IIRC the police can only enter a residence in hot pursuit, i.e. if they are chasing someone and thought they saw him go in there. Otherwise, I think they need a warrant to enter the house, which means they need reasonable grounds to believe he is there.
There is also "probable cause". Say the police are driving around a neighborhood on patrol, hear gunfire, screams, and breaking glass. Since that could be evidence of a possible crime in progress with hazard to life and limb they would be allowed to investigate, including entering private property. However, your neighbor going up to a random cop and accusing you of being a theif or growing pot in your bedroom closet is not sufficient grounds for a search.

Probable cause is kind of subjective and open to lots of interpretation, so I'd think most cops would prefer to get a search warrant if there's time.
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  #13  
Old 12-27-2011, 09:47 AM
Loach Loach is online now
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The OP does not sound like it was a case of a search warrant but probably an arrest warrant. The legality of entering into a structure to find a suspect will vary widely due to the circumstances and from state to state. Officers probably wouldn't have a paper copy of an arrest warrant with them.

In the case of a search warrant there is really no need to not present a copy. I'm trying to remember if there is any case law where you MUST be presented with a copy prior to the search. You absolutely will get a copy at some point. It won't be on a computer. It will be a pretty extensive packet which must be signed by a judge. I can see some exigent circumstances when an officer may need to start a search after receiving word from someone that the warrant has been approved but before he has a copy. Faking a warrant makes no sense because you just destroyed your case.
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Old 12-27-2011, 10:08 AM
Elendil's Heir Elendil's Heir is offline
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I helped prepare a half-dozen or so search warrants back in the day, when I was an Ohio prosecutor. The cops took along two copies, keeping one and leaving the other with the owner of the premises or whoever they found there. As noted earlier, the more specific the warrant, the better from a legal standpoint - the search warrant must describe with particularity what is to be searched, and what is being looked for. An overbroad warrant will either not be approved by the judge, or will lead to the later suppression of any evidence seized.

An odd detail: if the search warrant was to be executed at night (which wasn't typical), we were trained to prepare the warrant with a reference to "the night season." Not "nighttime," but "the night season." Nobody seemed to know why.
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  #15  
Old 12-27-2011, 10:15 AM
md2000 md2000 is offline
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Originally Posted by Loach View Post
The OP does not sound like it was a case of a search warrant but probably an arrest warrant. The legality of entering into a structure to find a suspect will vary widely due to the circumstances and from state to state. Officers probably wouldn't have a paper copy of an arrest warrant with them.

In the case of a search warrant there is really no need to not present a copy. I'm trying to remember if there is any case law where you MUST be presented with a copy prior to the search. You absolutely will get a copy at some point. It won't be on a computer. It will be a pretty extensive packet which must be signed by a judge. I can see some exigent circumstances when an officer may need to start a search after receiving word from someone that the warrant has been approved but before he has a copy. Faking a warrant makes no sense because you just destroyed your case.
In fact, on L&O there is the occasional bit where the cops are on their way to a location when the prosecutor phones them and says "OK, I have the signed warrant". SO presumably presenting the warrant or even holding the signed is not ncessary, but it must be authorized by a judge before the search is executed.

The other proviso is that the searchers better be sure of the scope of contents before executing it. If they search the wrong places or find something not covered by the warrant, then the evidence is excluded and the officers and city/state are open to any liability.
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Old 12-27-2011, 10:22 AM
silenus silenus is online now
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Originally Posted by kopek View Post
Like everyone else IANAL but I believe at some point you have to physically be handed something that passes as/for a search warrant in your jurisdiction. They may have broken down your door and already handcuffed you and looked for things in plain sight, but there is going to be sore sort of piece of paper involved. And get a copy for the defense attorney. Lets say the police kick in your door at noon and the warrant shows it was signed and issued at 12:10 or it has the wrong date or address ------- you may just have had the luckiest day of your life.
Partially incorrect. U.S. v Leon established the "good faith" exception. If the police believe they are operating with a valid warrant, and the warrant is later demonstrated to be flawed, that does not necessarily invalidate the evidence gathered. Searching at noon with a warrant time-stamped 12:10pm - sure. The address with numbers transposed or the name spelled wrong - no.
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Old 12-27-2011, 10:37 AM
Loach Loach is online now
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Originally Posted by Elendil's Heir View Post
I helped prepare a half-dozen or so search warrants back in the day, when I was an Ohio prosecutor. The cops took along two copies, keeping one and leaving the other with the owner of the premises or whoever they found there. As noted earlier, the more specific the warrant, the better from a legal standpoint - the search warrant must describe with particularity what is to be searched, and what is being looked for. An overbroad warrant will either not be approved by the judge, or will lead to the later suppression of any evidence seized.
Do you know of any case law where the paper copy must be served before the search can begin? I know that is almost always the case. I have always had a warrant in my hand when I have been involved in a case. But I can think of some circumstances in which it is not exigent enough for a warrantless search but timely enough that someone might feel they shouldn't wait for the copy to get there.

I have also often been involved in cases in which some evidence or probable cause of for a crime is observed and we seized the property (such as a car) or secured the structure or room until such time as a warrant was approved. We were not allowed to search and it would have screwed the case but legally we were able to deny access to their property until a warrant could be obtained.
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Old 12-27-2011, 10:38 AM
Loach Loach is online now
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Originally Posted by md2000 View Post
In fact, on L&O there is the occasional bit where the cops are on their way to a location when the prosecutor phones them and says "OK, I have the signed warrant". SO presumably presenting the warrant or even holding the signed is not ncessary, but it must be authorized by a judge before the search is executed.

The other proviso is that the searchers better be sure of the scope of contents before executing it. If they search the wrong places or find something not covered by the warrant, then the evidence is excluded and the officers and city/state are open to any liability.
Never go by what L&O says. I do like the show but they play fast and loose with the law whenever it suits them.
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  #19  
Old 12-27-2011, 10:54 AM
md2000 md2000 is offline
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So, is being told of a warrant by phone not legal? I would presume the overwhelming issue is "did the signed warrant exist and did you abide by its restrictions".

Nobody has said definitvely a warrant MUST BE produced on demand during a search or DOES NOT NEED TO BE.
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Old 12-27-2011, 11:16 AM
Elendil's Heir Elendil's Heir is offline
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Originally Posted by Loach View Post
Do you know of any case law where the paper copy must be served before the search can begin? ... I have also often been involved in cases in which some evidence or probable cause of for a crime is observed and we seized the property (such as a car) or secured the structure or room until such time as a warrant was approved....
Hey, good to have you here, Loach!

It's been awhile since I was involved in preparing search warrants, but IIRC in Ohio, at least, the hard copy of the search warrant must be provided to the owner (or whoever's there) upon demand, or otherwise at the conclusion of the search. Different states' laws may vary, of course, and some police departments may even adopt policies that are more citizen-friendly than required by law. I have heard of police securing a car or structure until a search warrant could be obtained, but was never involved in a case where that was done.
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Old 12-27-2011, 11:44 AM
Loach Loach is online now
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Originally Posted by Elendil's Heir View Post
Hey, good to have you here, Loach!

It's been awhile since I was involved in preparing search warrants, but IIRC in Ohio, at least, the hard copy of the search warrant must be provided to the owner (or whoever's there) upon demand, or otherwise at the conclusion of the search. Different states' laws may vary, of course, and some police departments may even adopt policies that are more citizen-friendly than required by law. I have heard of police securing a car or structure until a search warrant could be obtained, but was never involved in a case where that was done.
In some cases it has to be done. If you stumble on evidence of a crime while on an unrelated call you can't just say "Don't touch anything we'll be back in a couple hours with a search warrant".
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  #22  
Old 12-27-2011, 12:25 PM
Saint Cad Saint Cad is online now
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So back to the OP's scenerio. Let's say it was videotaped that the guy asked for the search warrant, was denied and threatened with arrest if he persisted in seeing the search warrant before allowing officers entry.

1. If there was a valid search warrant that was "in the computer" or left on someone's desk, is the search still legal?

2. If there was no search warrant, was it a legal search since the guy "allowed" the search? (I hope to TFSM that it's a no since he was threatened with arrest if he didn't allow it.)
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Old 12-27-2011, 03:57 PM
Loach Loach is online now
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Originally Posted by Saint Cad View Post
So back to the OP's scenerio. Let's say it was videotaped that the guy asked for the search warrant, was denied and threatened with arrest if he persisted in seeing the search warrant before allowing officers entry.

1. If there was a valid search warrant that was "in the computer" or left on someone's desk, is the search still legal?

2. If there was no search warrant, was it a legal search since the guy "allowed" the search? (I hope to TFSM that it's a no since he was threatened with arrest if he didn't allow it.)
1. Would like to know the answer. I have a feeling its going to be different between jurisdictions. The exact circumstance has never happened to me so I'm not sure.

2. Absolutely not. If a search is done without a warrant it must fit one of the criteria for warrantless searches. If it is a search due to consent it must be an informed consent. You can't trick someone into consent. No reason to. If there actual exigent circumstances the law allows for that. If not no reason not to wait. Forcing consent would be an easy win for the defense.
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Old 12-27-2011, 09:06 PM
md2000 md2000 is offline
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Originally Posted by Loach View Post
1. Would like to know the answer. I have a feeling its going to be different between jurisdictions. The exact circumstance has never happened to me so I'm not sure.

2. Absolutely not. If a search is done without a warrant it must fit one of the criteria for warrantless searches. If it is a search due to consent it must be an informed consent. You can't trick someone into consent. No reason to. If there actual exigent circumstances the law allows for that. If not no reason not to wait. Forcing consent would be an easy win for the defense.
So what is the appropriate response in the OP or similar situation ? "I do not give you consent to enter" while standing aside to avoid an obstruction or assaulting officer charge? If the officer is determined to force his way in (believes he can get away with it or believes he has legit grounds) confrontation is not good. But standing aside may be taken as consent or invitation to enter....
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  #25  
Old 12-27-2011, 09:51 PM
IMfez IMfez is offline
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Originally Posted by Loach View Post
2. Absolutely not. If a search is done without a warrant it must fit one of the criteria for warrantless searches. If it is a search due to consent it must be an informed consent. You can't trick someone into consent. No reason to. If there actual exigent circumstances the law allows for that. If not no reason not to wait. Forcing consent would be an easy win for the defense.

From what I've read, officers are allowed to trick people into consent. It's called a "knock and talk" and it has a very high success rate.

Though the knock and talk does not involve lying about having a warrant, the use of this technique would make it easier for an officer to conceal how he gained consent.
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  #26  
Old 12-28-2011, 02:56 AM
Patch Patch is offline
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The other proviso is that the searchers better be sure of the scope of contents before executing it. If they search the wrong places or find something not covered by the warrant, then the evidence is excluded and the officers and city/state are open to any liability.
ISTR being told by a police officer some years ago if they were searching a residence, say, and found something illegal that wasn't covered by the warrant, they just called in and got a new warrant that covered the illegal material.

Does that sound correct to our resident legal folks?
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Old 12-28-2011, 08:21 AM
Bricker Bricker is online now
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Originally Posted by Loach View Post
You can't trick someone into consent.
Depends on what you mean by "trick."


OFFICER: Good evevning, sir. I stopped you because your left taillight is out. Do you have your license and registration?

DRIVER: Yes. Here they are.

OFFICER: Thank you. (Shines light in back of car). You don't have anything back there I need to know about, do you? Knives, guns, rocket launchers?

DRIVER: Heh. Um, no.

OFFICER: Great! Then you don't mind if I take a look?

DRIVER: If I say no now, he'll think I have something to hide! Um... OK.
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Old 12-28-2011, 08:26 AM
Bricker Bricker is online now
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ISTR being told by a police officer some years ago if they were searching a residence, say, and found something illegal that wasn't covered by the warrant, they just called in and got a new warrant that covered the illegal material.

Does that sound correct to our resident legal folks?
Kinda sorta.

As long as the search was in keeping with the scope of the original warrant, then what they find is admissible. So in searching for stolen guitars, they open a closet and discover bags of meth, there's no need to obtain a second warrant for that meth to be admissible.

But now they have probable cause to support a search for meth, and it's advisable to get a second warrant that allows the search for meth, because it will permit them to expland their search. A briefcase would have been off limitrs for the first search, since they were obviously not going to find stolen guitars in a briefcase. With the new warrant, they can search the briefcase for meth.

However, if during their first search, they opened the briefcase anyway, the bags of meth they find therein would not be admissible, nor could they go back and get a secodn search warrant for meth based on the discovery of meth in the briefcase, since opening the briefcase was beyond the scope of their warrant's search.

Last edited by Bricker; 12-28-2011 at 08:27 AM..
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  #29  
Old 12-28-2011, 08:50 AM
Wesley Clark Wesley Clark is offline
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Originally Posted by IMfez View Post
From what I've read, officers are allowed to trick people into consent. It's called a "knock and talk" and it has a very high success rate.

Though the knock and talk does not involve lying about having a warrant, the use of this technique would make it easier for an officer to conceal how he gained consent.
It was my understanding that the police were well trained in tricking and intimidating people out of using their 4th and 5th amendment rights. I believe judges and prosecutors use tricks to stop people from using their 6th amendment rights (if you want a trial, you are going to get a more severe penalty, etc). It is a messed up situation IMO. One of the few times intimidation and trickery can be used to deny people their rights.

I don't know if lying and saying you have a warrant would be legal though. However if the cops says it then lies about having never said it later, it is the cops word against a civilian in court.

Last edited by Wesley Clark; 12-28-2011 at 08:51 AM..
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Old 12-28-2011, 10:13 AM
Crafter_Man Crafter_Man is online now
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Originally Posted by Bricker View Post
OFFICER: Great! Then you don't mind if I take a look?
Answering this question can be a bit tricky:

DRIVER: Yes.

OFFICER: Yes, I can take a look? Then that's what I'm going to do.

.
.
.

DRIVER: No.

OFFICER: No, you don't mind if I take a look? Then that's what I'm going to do.



So when the officer asks you this question, do not simply answer "yes" or "no". Instead say, "You do NOT have permission to search my vehicle."
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  #31  
Old 12-28-2011, 10:40 AM
Jack Batty Jack Batty is offline
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Side-question: How legal would this be (I saw it on L&O:CSI:SVU:LMNOP)?

At the time, I recall thinking that it sounded damned illegal. The situatation was something around a child-porn ring and they had the one-guy dead to rights, but they needed his personal computer to seal the deal. There was some big gnashing of teeth about the expediency required, because if they couldn't get the warrant toot-sweet, he'd just destroy the evidence.

The solution was to post a police guard at the front door of the residence, barring anyone - even the owner - from entering until a judge could rule on the warrant.

Correct me if I'm wrong, but wasn't prior restraint roundly rejected by the Supreme Court?

Last edited by Jack Batty; 12-28-2011 at 10:41 AM..
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  #32  
Old 12-28-2011, 12:58 PM
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Very tangential, but this reminds me of an incident several years ago. My daughter was still living with us, came home from an outing with friends and realized she had left her wallet in the coffee shop they'd been at. Panicked, she tried to dial information to get the phone number and mistakenly dialed 911. She told them oops it was a mistake, then called information, and as she rushed out the door advises us, hey, the cops are probably gonna stop by soon because I called 911 by mistake. See ya.

Sure enough about 5 or 10 minutes later there's an officer at the door. I did not admit him, told him the story through the screen door. No, she's not here now. All the while he's craning his neck around trying to see into the house. Finally I just said my husband is sick with the flu and I'm not letting you in and I need to close the door now.

I understand why he was there -- maybe someone was in danger and was forced to deny the call. But I still wasn't letting him in for no reason.
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Old 12-28-2011, 01:48 PM
Patch Patch is offline
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Originally Posted by Wesley Clark View Post
It was my understanding that the police were well trained in tricking and intimidating people out of using their 4th and 5th amendment rights. I believe judges and prosecutors use tricks to stop people from using their 6th amendment rights (if you want a trial, you are going to get a more severe penalty, etc). It is a messed up situation IMO. One of the few times intimidation and trickery can be used to deny people their rights.

I don't know if lying and saying you have a warrant would be legal though. However if the cops says it then lies about having never said it later, it is the cops word against a civilian in court.
The book Tactics for Criminal Patrol by Charles Remsberg has an interesting section on how to get consent from drivers to search their vehicles. He notes (emphasis his),

Quote:
Consent must be asked for and granted when a "reasonable person would believe he is legally free to disregard further contact with you and leave your presence." In other words, your request must be posed when the suspect is in what could flippantly be called a 'screw you' period.

Legally this period begins when you have concluded the reason for the stop... and have returned his license, registration, insurance card, and any other documents... You may want to mark the end of your official detention by saying casually, as a throw away line: "Okay you're free to go; have a safe trip," as you hand him your papers... But the US Supreme Court says such notice is not required... These courts presume that a reasonable citizen knows that constitutionally he does not have to remain once the purpose for the stop is ended.
Remsberg recommends continuing to talk to the driver so they won't realize they have the option to leave.

Quote:
Technically, you've confirmed that he's agreeable to talking to you. Your tone conveys that you're posing a strictly routing, even stupid question to which you are of course expecting a negative answer. hen the driver says, "No, then casually but quickly pop the $64,000 question:

"Well, you wouldn't mind if I took a look, would you?"

This phrasing, to, employs psychology in your favor. The implication is that the subject will look guilty if he does mind. An assumption is built into the question. It's psychologically harder to decline than a straight-forward:" Can I search your car?"
He goes on to recommend to obtain consent from people who aren't inclined to consent, how you can search if you don't have consent, and recommended tools to dismantle vehicles during your search.

Crafter_man
has it right. Say "You do NOT have permission to search my vehicle," and leave as soon as you get your paperwork back.
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  #34  
Old 12-29-2011, 08:07 AM
MikeF MikeF is offline
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For OP - we always supplied a copy of the warrant to the suspect. It is a NJ Court Rule. Usually at the time it was served but sometimes later if there were exigent circumstances. We didn't wait for the person to read it or give their approval but they did get it. If no one was home a copy was left at the scene along with an inventory of any items seized. Warrants aren't large documents. Ours were about a page and a half. Its, basically, a form with the particulars of the case filled in. The supporting affidavit could be quite large and defendants get a copy of that along with the rest of their discovery (after indictment).

Warrantless searches are presumed to be invalid by the court. The burden is on the state to show that the warrantless search was one of the exceptions to the warrant requirement. One of those exceptions is consent and the state has to show that consent was freely given and that the person was aware that they had the right to refuse. In NJ that means getting it in writing where cars are concerned. But not houses or persons - that's weird. I'm pretty sure this is just a NJ Attorney General Guideline, not a law.

Also, a NJ rule requires that the officer have a reasonable suspicion to believe that criminal activity is afoot (my words) before asking for consent. Most cops aren't going ask for consent if they don't believe that to be the case but some will, just hoping to get lucky. Experience has shown that type of fishing to be an inefficient use of time and it is not good for public relations. Suspicion can cannot be based solely on race, religious affiliation etc. It can be based on something as simple as two people in a car having two different stories about where they are going to or coming from or not knowing the last name of your passenger or the name of the "friend" you borrowed the car from. This info can be attained in a very casual, almost friendly, conversation. The standard is "reasonable suspicion", which is far less than the "probable cause" necessary to get a warrant.

In the early days of this tactic I knew of cops who would sometimes search someone even though they didn't get consent. It was usually a case of the person loudly and vehemently refusing. And they NEVER had anything on them. Someone carrying drugs is usually not going to antagonize the police. They want the interaction be over ASAP and arguing with the police isn't the way to do it.

Getting consent to search a car, residence or person and having it stand up in court is a bit of an art. Officers (well, some officers) are formally trained to get consent from people. It really isn't that hard. Completely innocent people will often say, "Sure, go ahead". Dirty (as in possessing contraband) people will often consent because they think if they refuse the cops will get even more suspicious. If they say "yes" the cops will think that they are clean and just let them go. Why would someone carrying drugs knowingly consent, right? They are bluffing the cops and then are afraid to retract the consent when the the cops call their bluff. And I don't mean afraid as in "I'm going to get beat up" afraid. More of "I'm afraid I am about to get caught" afraid. The whole "fight or flight" syndrome kicks in and part of that is the inability to think and communicate clearly.

So, its not trickery the cops are using, its using human nature against this particular human. Its all legal and moral and its what the police are paid to do. I can't tell you the number of people my interdiction team team obtained consent from only to find that the person was carrying thousands, sometimes tens of thousands, of dollars worth of drugs. No threats, violations of rights, lies or trickery involved. It wasn't necessary. It defies common sense but it happened all the time. If the person told us to go pound sand we wished them a good night and waited for the next bus from NYC to arrive. It was like shooting fish in a barrel.

Sometimes I wish that I hadn't retired. Naaaaah.
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  #35  
Old 12-29-2011, 08:31 AM
Shodan Shodan is online now
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Quote:
Originally Posted by Bricker View Post
Depends on what you mean by "trick."


OFFICER: Good evevning, sir. I stopped you because your left taillight is out. Do you have your license and registration?

DRIVER: Yes. Here they are.

OFFICER: Thank you. (Shines light in back of car). You don't have anything back there I need to know about, do you? Knives, guns, rocket launchers?

DRIVER: Heh. Um, no.

OFFICER: Great! Then you don't mind if I take a look?

DRIVER: If I say no now, he'll think I have something to hide! Um... OK.
Just to be clear, the following would not be legal -

OFFICER: Mind if I search your vehicle?

DRIVER: Not without a warrant.

OFFICER: OK, wait here.

OFFICER goes back to his squad car and talks on the radio for five minutes. DRIVER cannot hear what is said.

OFFICER: I talked to a judge, and he gave me a search warrant over the radio.*

DRIVER: Then I guess I have no choice - go ahead.

In that case, the bazooka and fourteen pounds of crack found under the back seat is not admissible, correct?

Regards,
Shodan

*The officer is lying about this.
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  #36  
Old 12-29-2011, 09:47 AM
Martin Hyde Martin Hyde is offline
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Quote:
Originally Posted by Wesley Clark View Post
It was my understanding that the police were well trained in tricking and intimidating people out of using their 4th and 5th amendment rights. I believe judges and prosecutors use tricks to stop people from using their 6th amendment rights (if you want a trial, you are going to get a more severe penalty, etc). It is a messed up situation IMO. One of the few times intimidation and trickery can be used to deny people their rights.

I don't know if lying and saying you have a warrant would be legal though. However if the cops says it then lies about having never said it later, it is the cops word against a civilian in court.
I don't know that prosecutors are really tricking people out of their right to a trial by jury. But by the time a criminal defendant is at a point of formally having to decide how they are going to plea they will typically have legal counsel. They may have already confessed to law enforcement prior to asking for counsel (because many criminals are stupid), in those scenarios unless their public defender can find some reason to throw out the confession or something I'd imagine the PD's primary role is going to be to negotiate the best possible plea agreement.

Prosecutor's have case loads to the ceiling, so for most criminals if you plea they will be willing to cut you a deal on the sentencing, sometimes even lowering the charge. This happens even with small stuff...I've known people who had DUIs and were dead to rights on the charge, but retained counsel and got it negotiated down to reckless driving. Or if they had to plead to a DUI they got the minimum penalty.

From the perspective of a defendant it's a scary thing to have to decide to go to trial versus plea out. Unless you've committed a capital crime or something really serious, most crimes you can plea out such that you'll get out eventually. It might be 10 years or 15 years for a really bad crime, but most of them you can plea to something where you can be out of jail in under 10 years assuming you get paroled and have good behavior in prison.

But if you go to trial and lose? Well, then the prosecutor is going to let you be sentenced and that will almost always mean you get whatever statute says you should get. In sentencing judges/juries may show some leniency, but they're going to sentence you based on the crime you were convicted of--whereas a prosecutor can actually have you plea out to a lesser crime with a whole lesser sentencing range. It's almost a game theory sort of thing, you can roll the dice on a trial (which prosecutors overwhelmingly win), or you can plea out in exchange for knowing what your punishment is going to be and that punishment being less than the worst outcome of a trial would be.

I've read that more than 50% of criminal defendants, by the time they first talk with legal counsel, have already confessed their crime to law enforcement (and will have waived their right to silence and counsel in a signed statement), so the vast majority of people getting ready to be tried for a crime are already fucked three ways til Sunday so it's really not the prosecutor tricking them to their detriment. In reality the prosecutor offering a deal to them is beneficial to the State (keeps cases clearing faster) and the defendant (gets them a reduced sentence.)
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  #37  
Old 12-29-2011, 10:23 AM
md2000 md2000 is offline
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There was a case in Toronto many years ago, where the police were trying to get a confession out of a man and his girlfriend for the murder of his wife. They showed the guy a "signed confession" from his girlfriend. He laughed in their faces, and when they let him go, he sued them for forgery, since the "signed confession" was a blatant forgery. The Canadian Supreme Court basically said that it was not, since in interrogation, practically anything goes.

Last edited by md2000; 12-29-2011 at 10:24 AM..
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  #38  
Old 12-29-2011, 11:54 AM
Patch Patch is offline
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Quote:
Originally Posted by MikeF View Post
For OP - we always supplied a copy of the warrant to the suspect. It is a NJ Court Rule. Usually at the time it was served but sometimes later if there were exigent circumstances. We didn't wait for the person to read it or give their approval but they did get it.
Out of curiosity, if you hand the warrant to the homeowner and your team goes waltzing in, and the homeowner says "Wait a minute, this warrant is for 123 Criminal Place, and my address is 123 Criminal Way. You have the wrong house." Do you double check the warrant against the address to be sure, or does it just disappear into the noise of the 'suspect' trying get you to stop a search?
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  #39  
Old 12-29-2011, 12:18 PM
Guinastasia Guinastasia is offline
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Quote:
Originally Posted by md2000 View Post
In fact, on L&O there is the occasional bit where the cops are on their way to a location when the prosecutor phones them and says "OK, I have the signed warrant". SO presumably presenting the warrant or even holding the signed is not ncessary, but it must be authorized by a judge before the search is executed.

The other proviso is that the searchers better be sure of the scope of contents before executing it. If they search the wrong places or find something not covered by the warrant, then the evidence is excluded and the officers and city/state are open to any liability.

Once again, L&O isn't fact, but I believe they usually have it physically on them when they arrive. So I'm guessing they have someone fetch it for them.
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  #40  
Old 12-29-2011, 12:27 PM
MikeF MikeF is offline
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Shodan - the drugs and bazooka would be tossed. Either because the cop lied about having a warrant when he didn't or because the cop coerced the consent. Remember, in any warrantless search the court starts with the assumption that it was a bad search and the state has to prove otherwise. When defendants start saying that they were threatened, tortured or whatever into consenting the cops have to convince the judge that that wasn't the case. Written consents help as do tape/video recorded encounters. The judge will take in the totality of the circumstances when deciding if the consent was freely given. Sometimes its a he said/she said situation and the judge will determine who is more credible. And THAT'S why it is so important to remain credible as a cop. If you get caught in one lie or are even accused enough times, you might as well go write parking tickets for the rest of your career. Judges have long memories and they talk to their fellow judges. As a trainer, I am constantly telling trainees that no two bit dope dealer (or even drug kingpin or murder suspect) is worth your life or professional reputation. Once lost they are gone forever.

Patch - we would always double check with the guy who wrote the warrant to make sure we had the correct house. In hundreds of warrants I never hit the wrong door. If the mistake is a minor one such as, Street versus Road or whatever, the warrant will stand. The warrant will have not only the address but a fairly detailed description of the house. The team hitting the house will do a recon to be sure it matches the place they intend to hit. On those occasions where the wrong house gets hit - I can only attribute that to sloppy work on someone's part. There's really no excuse.
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  #41  
Old 12-31-2011, 10:16 AM
Loach Loach is online now
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Quote:
Originally Posted by md2000 View Post
So what is the appropriate response in the OP or similar situation ? "I do not give you consent to enter" while standing aside to avoid an obstruction or assaulting officer charge? If the officer is determined to force his way in (believes he can get away with it or believes he has legit grounds) confrontation is not good. But standing aside may be taken as consent or invitation to enter....
No standing aside is not consent. Again the OP is hard to answer because it actually seems to be an arrest warrant to me not a search warrant.

Quote:
Originally Posted by IMfez View Post
From what I've read, officers are allowed to trick people into consent. It's called a "knock and talk" and it has a very high success rate.

Though the knock and talk does not involve lying about having a warrant, the use of this technique would make it easier for an officer to conceal how he gained consent.
No you can not trick people into consent. You would be amazed at how many criminals consent even when they know it's going to get them arrested. Since all of our consents have to be a signed form with all their rights enumerated or on video, tricking or lying would not work out too well in court.

Quote:
Originally Posted by Patch View Post
ISTR being told by a police officer some years ago if they were searching a residence, say, and found something illegal that wasn't covered by the warrant, they just called in and got a new warrant that covered the illegal material.

Does that sound correct to our resident legal folks?
Anything that was found while looking under the old warrant would be admissible. However, in order to then look for evidence of the second crime as well the original warrant would have to be amended.

Quote:
Originally Posted by Wesley Clark View Post
It was my understanding that the police were well trained in tricking and intimidating people out of using their 4th and 5th amendment rights. I believe judges and prosecutors use tricks to stop people from using their 6th amendment rights (if you want a trial, you are going to get a more severe penalty, etc). It is a messed up situation IMO. One of the few times intimidation and trickery can be used to deny people their rights.

I don't know if lying and saying you have a warrant would be legal though. However if the cops says it then lies about having never said it later, it is the cops word against a civilian in court.
Police are trained in ways to talk to people. Some are better than others. In fact the training is actually pretty small in comparison to what you learn just by doing it. And no I have never been trained to work around the constitution. I have been taught the limits of my authority and how to work within them.

Quote:
Originally Posted by Crafter_Man View Post
Answering this question can be a bit tricky:

DRIVER: Yes.

OFFICER: Yes, I can take a look? Then that's what I'm going to do.

.
.
.

DRIVER: No.

OFFICER: No, you don't mind if I take a look? Then that's what I'm going to do.



So when the officer asks you this question, do not simply answer "yes" or "no". Instead say, "You do NOT have permission to search my vehicle."
The driver must be informed of their rights when consenting. It is a more than a yes or no answer. And consent can be withdrawn at any time. So after the officer said that the driver would just have to say no again. And in my state just asking for consent there must be at least an articulable suspicion. No fishing expeditions allowed.

Quote:
Originally Posted by Shodan View Post
Just to be clear, the following would not be legal -

OFFICER: Mind if I search your vehicle?

DRIVER: Not without a warrant.

OFFICER: OK, wait here.

OFFICER goes back to his squad car and talks on the radio for five minutes. DRIVER cannot hear what is said.

OFFICER: I talked to a judge, and he gave me a search warrant over the radio.*

DRIVER: Then I guess I have no choice - go ahead.

In that case, the bazooka and fourteen pounds of crack found under the back seat is not admissible, correct?

Regards,
Shodan

*The officer is lying about this.
Case dismissed.
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  #42  
Old 12-31-2011, 07:36 PM
LinusK LinusK is offline
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I'm a criminal defense attorney in Texas. There's no requirement here that the police show somebody a warrant. Of course, laws and policies vary from place to place, but it's not a constitutional requirement, and it's not a requirement of state law, at least not in this state.

In general it's a bad policy to argue with the police about what they can and can't do. Of course, if they ask permission, you're free to say no. And if you're not sure about something, ask. ("Am I free to leave," is always a good question to ask.) But in general it's best to be quiet, polite, and unhelpful.
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  #43  
Old 01-01-2012, 04:27 PM
lawbuff lawbuff is offline
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Quote:
Originally Posted by IMfez View Post
About a year ago I saw a video (which I can't find now) where the police were in confrontation with a dad on the doorstep of his house, because they were searching for his child (regarding some crime) The parents demanded to see a search warrant to let the cops in. The cops said they had a warrant but it was in the computer (in their car) and "If you don't step aside you're going to jail." Not knowing what to do, the dad eventually caved in and the cops started searching the home.


Is this legal? I thought the cops had to present you with a warrant in the US. Seems that in the above example, the cop could have easily faked a warrant.

Your question seems to be do the police have to show you a warrant before or at entry. This 9th circuit case deals with the rule 41 of the federal rules of criminal procedure. Of course it deals with a person answering the door or your facts and no break in is necessary. Whether other circuits are similar in case law is unknown without further research. The US SC has never ruled "directly" that a copy must be presented "at entry". This case deals with dicta and substantial interpretations of SC cases though.

At par. 17:

To comport with Rule 41, the government must serve "a complete copy of the warrant at the outset of the search." Gantt, 194 F.3d at 990.


http://law.justia.com/cases/federal/...4/1095/577201/


Now, state Rules of criminal procedure vary state to state. I have never read one where textually a copy must be presented at point of entry, but the case law, as in the above, may hold true on that. Some I have read say a warrant must be left and others say a warrant need be left only if items were taken, along with an inventory of what was indeed taken.
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  #44  
Old 01-01-2012, 04:47 PM
lawbuff lawbuff is offline
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Quote:
Originally Posted by Jack Batty View Post
Side-question: How legal would this be (I saw it on L&O:CSI:SVU:LMNOP)?

At the time, I recall thinking that it sounded damned illegal. The situatation was something around a child-porn ring and they had the one-guy dead to rights, but they needed his personal computer to seal the deal. There was some big gnashing of teeth about the expediency required, because if they couldn't get the warrant toot-sweet, he'd just destroy the evidence.

The solution was to post a police guard at the front door of the residence, barring anyone - even the owner - from entering until a judge could rule on the warrant.

Correct me if I'm wrong, but wasn't prior restraint roundly rejected by the Supreme Court?
In Illinois v. Macarthur, US SC 2001, they permitted such as you describe. The police kept the owner from entering for 2-3 hours until a warrant could be obtained. He had MJ in the house and to prevent it from being destroyed, no entry was permitted without the police accompanying him.

Last edited by lawbuff; 01-01-2012 at 04:51 PM..
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  #45  
Old 01-01-2012, 05:00 PM
lawbuff lawbuff is offline
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Quote:
Originally Posted by Shodan View Post
Just to be clear, the following would not be legal -

OFFICER: Mind if I search your vehicle?

DRIVER: Not without a warrant.

OFFICER: OK, wait here.

OFFICER goes back to his squad car and talks on the radio for five minutes. DRIVER cannot hear what is said.

OFFICER: I talked to a judge, and he gave me a search warrant over the radio.*

DRIVER: Then I guess I have no choice - go ahead.

In that case, the bazooka and fourteen pounds of crack found under the back seat is not admissible, correct?

Regards,
Shodan

*The officer is lying about this.

He may be lying, but as long as probable cause exists to search, under the so called "automobile exception", no warrant is required.

On the other hand, consent MUST be freely and voluntarily given, such a lie circumvents that, so if the officer told the truth about no warrant and no PC existed to search under the AE, any evidence found could be suppressed by a Motion.
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  #46  
Old 01-01-2012, 05:34 PM
Leo Bloom Leo Bloom is offline
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Quote:
Originally Posted by Bricker View Post
....

As long as the search was in keeping with the scope of the original warrant, then what they find is admissible. So in searching for stolen guitars, they open a closet and discover bags of meth, there's no need to obtain a second warrant for that meth to be admissible.

But now they have probable cause to support a search for meth, and it's advisable to get a second warrant that allows the search for meth, because it will permit them to expland their search. A briefcase would have been off limitrs for the first search, since they were obviously not going to find stolen guitars in a briefcase. With the new warrant, they can search the briefcase for meth....
This is to prevent the meth from mysteriously vanishing, only if the stolen guitars and meth are in the stolen guitar searchable area/warrant vortex. Got it.

lawbuff cites Illinois v. Macarthur where the police held the suspect from re-entering his home while waiting for the second warrant to come through for some pot, which was found in the course of executing the first warrant? Since that pot discovery was made illegally (w/o a warrant), how could a second warrant be issued?

Would the prosecuting logic be, "well, we found some pot, and that'll be inadmissible; then since we cause to believe there's more pot (or whatever), we'll get the second warrant and really get the goods.

Is that legal?
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  #47  
Old 01-01-2012, 07:22 PM
lawbuff lawbuff is offline
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Leo, Mcarthur only dealt with 1 warrant, period, read the case.
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  #48  
Old 01-02-2012, 01:56 AM
Leo Bloom Leo Bloom is offline
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Could my query be addressed as a hypothetical, as everyone else's have? IAcertainlyNAL, and reading the case--even if I knew where to find it--would be useless.
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  #49  
Old 01-02-2012, 12:00 PM
lawbuff lawbuff is offline
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Leo, if contraband was found illegally, and contraband was found again after a warrant was applied for to search again, the Exclusionary Rule may or may not apply, as we see in this case, although it does not deal with as we are discussing. I have read cases on exactly what we are discussing, but would have to research.

Here, although a constitutional violation occured, the SC upheld the admission of evidence, and threw out the ER.

http://www.law.cornell.edu/supct/html/04-1360.ZS.html

Last edited by lawbuff; 01-02-2012 at 12:02 PM..
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  #50  
Old 01-03-2012, 09:46 AM
Saint Cad Saint Cad is online now
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Quote:
Originally Posted by Shodan View Post
Just to be clear, the following would not be legal -

OFFICER: Mind if I search your vehicle?

DRIVER: Not without a warrant.

OFFICER: OK, wait here.

OFFICER goes back to his squad car and talks on the radio for five minutes. DRIVER cannot hear what is said.

OFFICER: I talked to a judge, and he gave me a search warrant over the radio.*

DRIVER: Then I guess I have no choice - go ahead.

In that case, the bazooka and fourteen pounds of crack found under the back seat is not admissible, correct?

Regards,
Shodan

*The officer is lying about this.
I have heard that in Washington (state), State Patrol carries a blank warrant in their trunk pre-signed by a judge that they just need to fill in the particulars and give to the driver. Assuming this is true, would such a warranted search be legal?
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