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”.
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.
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If there was a valid search warrant that was “in the computer” or left on someone’s desk, is the search still legal?
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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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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.
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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…
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.
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?
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.
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.
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.
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.
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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.”
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?
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.
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),
Remsberg recommends continuing to talk to the driver so they won’t realize they have the option to leave.
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.
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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.
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.
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 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.)
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.
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?
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.
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.