Entering a property without a search warrant, then finding evidence and subsequent search warrant

Factual Questions
21

Haven’t seen the movie, but…

First, just because you’re legitmately in the parking lot after a perp doesn’t give you the right to nose around looking for more evidence of other stuff at your leisure. You grab the perp and leave.

I assume the real answer is - if the defendant can persuade the judge the reason was simply a pretext, not a legitimate issue, or a set-up by the police, then the judge (or appeal court) could toss the evidence. “You pulled him over on failure to signal, but the dashcam shows him signalling”.

22

Here’s the scene.

23

This is one reason why search warrants often include looking for cash, because cash could be hidden almost anywhere, and so it covers the police looking almost anywhere.

24

Thanks, very helpful.

25

I assume still, the cash has to be a part of the crime. If it’s asault with a weapon, no robbery, what motive could the warrant have for searching for cash? Whereas, yes, if it’s suspected drug dealing, cash is an obvious component of the crime.

But you still have to have probable cause that the crime is happening on the premises, or that the search of the premises will provide concrete evidence of the alleged crime.

Techdirt website mentions cases frequently where officers overstep their bounds, and often get away with it - sometimes even at the appeal level.

26

IANAL, but I believe this is incorrect, at least until the current Supreme Court gets around to revisiting it. They can walk directly from the sidewalk to your front door and knock, and anything they spot en route is fair game. But without a warrant, they can’t just traipse across your lawn and peek over your back fence, even in the absence of no-trespassing signs. I think this is the concept of “curtilage” which markn_1 referred to above.

27

Can the police use technology to look into your home?

By that I mean, from a position off your property, can they use telescopes and infrared cameras and eavesdropping devices and drones and what-not to look into your property? If a police officer cannot traipse across your property and peek over the back fence per @Thing.Fish post can they send a drone over your house to look into your back yard?

28

That is correct. You can’t just add things to a warrant randomly. There has to be a legitimate purpose to be searching for those items and the reasons are laid out very specifically in the affadavit. Judges are people so there is a wide variety but I’ve never dealt with any that wouldn’t pick apart a search warrant application that doesn’t have the proper justification.

29

That is a good question and I don’t believe it’s settled law at the Supreme Court level. In general if it’s anywhere that you have an expectation of privacy a search warrant is needed. The law sometimes has trouble keeping up with technology. So you’ll have a mishmash of caselaw in different states until you can get a supreme court ruling. Then there will be some new bit of technology that have to be looked at a little differently and it starts over again.

30

Yes and no.

Police can use technology to supplant their ability to engage in typical police observations, but they can’t use it to enhance their abilities beyond what would otherwise be possible.

Example: pole cameras. I worked a drug case once where the police installed a video camera on the top of a utility pole and then focused it directly on the front door of a dealer’s house so they could record the comings and goings of the residents. That was legal, even though it was recording 24/7 for weeks, since it would have been permissible for the police to have an officer stand across the street and watch the door (never mind that a cop is far more obvious than a camera, or that the camera makes constant surveillance so much easier).

But, the cops would not have been able to use the camera to look over the fence and into the backyard, since that’s not an observation available to a passing pedestrian.

So, cops wouldn’t be able to use infrared to look into the home without any warrant.

What about a flyover? It might be OK, I’m guessing (and I’m sure that there’s law on this), since you don’t have the ability to shield the area above your house from airplanes. Basically, it’s plain view, albeit from a different angle.

Then again, a person flying overhead isn’t normally close enough to see the details of your backyard, so maybe it would not be acceptable.

(There are lots of permutations of this. What about if cops put up a ladder and climb it to look into the yard? Not sure; people will debate and disagree. This is why each case is different, and lawyers get to make arguments).

And there are workarounds, too. The utility police camera raised the fact that the utility company can consent to allow the police to use their infrastructure to assist with an investigation. That same cooperation also extends to utility rates, and so cops may, for example, get a search warrant based off the fact that a house is using way more electricity than would be expected, thereby providing evidence of a marijuana grow. Believe it or not, how much you pay the electric company is information that they have and can share without your knowledge or consent.

31

True, but cash can often be a component of many crimes, so it’s potentially something that could be on a lot of warrants. Or if it’s not, then they’re likely to put in something else similarly small and easily-hid, like SD cards.

32

If it’s a component of the crime then it’s valid. If it’s not they it won’t be in the search warrant. I don’t know what you are arguing.

33

How strictly is “component of the crime” defined, here? Owning cash is not, in itself, a crime, so “component of a crime” must be broader than that. Is it as broad as “the crime can potentially lead to the criminal gaining money”? Because almost anything can fit in there.

34

Cash is a bad thing to look for, because it’s fungible (unless you have serial numbers). You’re looking for the evidence that you expect to find, as described in the warrant. But if you happen to find new and unexpected evidence while searching, you get to use it.

So don’t go for cash. Go for “electronic devices”, such as cell phones. That also gives you access to everything (I.e. inside drawers, in cabinets, under mattresses), and in our modern times there are myriad ways to connect your suspected crime to a phone (I,e. “Based on training and experience, criminals often keep photographs of their conquests on their phones as ‘trophies’; or ‘they tend to communicate about their activities’; et al).

35

A very specific case comes to mind about peering into a domicile using technology: Kyllo v. U. S.

The police busted a grow house by scanning the exterior walls of a suspected house with an infrared camera, finding indications that one room was significantly hotter than the rest of the house.

The Supreme Court ruled 5-4 that such a use of technology was in fact a violation of the 4th Amendment.

36

In every search warrant I have written the items being searched for and the reasons for the search have to be very specific. If not you are risking having the warrant and search thrown out before trial. Who wants to waste all that time and effort? There is no upside.

37

I once had the “interesting” experience of being home when a search warrant was executed on my domicile; turns out one of my roomies had some hobbies the rest of us weren’t aware of, including burglary. The warrant specified that they were allowed to search for postage stamps. Which was totally kosher as that’s one of the items the fool had stolen, but didn’t leave much of the house off limits to the cops.

38

Depends on where they can see over the fence from. They can’t traipse across your lawn to peer over the fence but if they see something in your fenced back yard while they are walking to your front door to knock, that’s another story. But they might see it from your neighbor’s yard or if part of your “back” yard borders the public street - maybe you have a corner lot or there is no house behind yours - and they will be able to get a warrant based on that.

39

Sure, and the point is, that’s easy. “We believe that the subject is in the habit of selling the items that he steals, and that therefore there will be a significant amount of cash found in the house”. Or “We believe that the subject may be keeping electronic records of his criminal activities, and that these records might be stored on thumb drives, SD cards, or other small electronic items”.

40

Yes, that is my understanding; they can act on whatever they can see from public property, or on what they can see while taking the most direct route from public property to your front door.

Here is a hilarious cite, from a case which seems very much like what the OP is asking about: Majority Rejects “Mullet Doctrine” In Fourth Amendment Case".