I know that law in books is going to be modified to suit the plot…
Here’s the scenario: Cop is looking for his missing almost certainly kidnapped girlfriend. He enters the house where he thinks she might be, and finds the frozen body of the house owner’s dead wife. (But not his girlfriend)
However, he is acting as a private citizen and is not anywhere his jurisdiction. In the later trial, the discovery of the dead wife is treated as illegal search and seizure. Note: the perp is on trial for a somewhat unrelated crime.
ETA: trial and crime were in Chicago. Our hero was chief of police in a small town a couple of hours away
That seemed odd to me. Is this correct or was the author just milking the trial for drama?
It’s still the same sovereign - a local police chief is a state law enforcer. However, an off duty police officer is generally considered a private citizen so long as the officer is not acting at the behest of a law enforcement agency (even within his jurisdiction).
I believe many police officers are considered to always be on duty from a legal standpoint. On the one hand, this means that a police officer who’s not currently at work can still do things like carry a gun or make arrests. On the other hand, it also means he’s always considered to be a police officer and not a private citizen on issues like a search.
I can’t speak for other states, but in Florida police officers are not always on duty. However, if they observe evidence of a crime or other event requiring law enforcement response (like a car crash) they can transition to on duty status immediately - though they are not required to.
(My WAG based on watching TV) It’s not only whether he was on duty or not, but also whether he had probable cause to enter the house and search for anything, that make it an illegal search (I don’t see any seizure going on in this scenario). The second part would be true of any cop, including the chief of police in Chicago.
If he is in private citizen mode and not acting as a police officer this seems breaking and entering he will be arrested. Is he willing to admit to the B&E to tell police he found the body? That seems like fruit of the poisonous tree (inadmissible…IANAL). Would it be different if he were not a cop but just Joe Random?
My question is (based on the OP) is if he breaks into the house and local police respond (neighbors called it in or alarm went off) and the police enter the house to search for the OP’s guy who broke in can anything the local police find then be used against the owners? They are looking for the person but see drugs, frozen body, etc.?
For a car all you need is probable cause to search. For a residence you need probable cause to get a search warrant. You can’t just claim probable cause and enter the residence. There are certain exigencies that can allow you to enter the residence without a warrant those generally let you search to the point that the exigent circumstances end then you have to hold the scene and get a search warrant.
Yeah, no, I remember reading a case where an off duty police officer had a side gig as a security guard. Or maybe the other way around… One night he detained the defendant in the parking lot at gunpoint because there was a rumor that some people had threatened to shoot the bouncers. The guard patted the defendant down and confiscated a gun, then cuffed him. The club called police who arrested the defendant and the charged him with unlawful possession. The court ruled that the security guard was a private individual not in cahoots with govt at the time, despite being off duty, and thus his detention of defendant w/o reasonable suspicion and seizure of the gun did not taint the conviction.
US, 9th Circuit in Arizona I believe, but I can’t seem to find the case.
Since you mention that it’s a book set in Chicago involving local police, note that until Mapp v. Ohio in 1961 the exclusionary rule didn’t necessarily apply in state courts. Meaning evidence illegally obtained by police could be used to convict you in state court i.e. murder charges. At least unless state law prohibited such evidence - not sure about Illinois in say the '30s.
ETA: Illinois adopted a state equivalent of the exclusionary rule in 1923. People v. Brocamp, 307 I.L. 448.
Yeah, it seems to me that this all hinges on what the guy was doing in the house to begin with. If he was there lawfully (for instance, if he was invited in, if he had a warrant to search the place, or if he heard screams and gunshots inside), and he found the body in the course of that legal entry, then it’s valid evidence. If he was just breaking in on a hunch, then he’s a burglar, and nothing he found was valid.
On the contrary, the question is whether he was a government agent or a private citizen. The exclusionary rule does not apply to evidence obtained unlawfully by a private citizen (unless the citizen was acting as a government agent).
The papers having come into the possession of the government without a violation of petitioner’s rights by governmental authority, we see no reason why the fact that individuals, unconnected with the government, may have wrongfully taken them, should prevent them from being held for use in prosecuting an offense where the documents are of an incriminatory character.
From Burdeau v. McDowell, 256 U.S. 465 (1921). A private detective working for petitioner McDowell’s ex-boss had broken into petitioner’s office, drilled petitioner’s personal safe, broken locks on petitioner’s personal furniture, stolen incriminating papers, and turned the papers over to federal prosecutors.
The 4th amendment’s exclusionary rule does not apply to mere burglars (and of course most definitions of burglary require an intent to commit a felony, so really it sounds more like breaking and entering, but that’s beside the point). He has to be a state actor, or else there has to be something more than the 4th amendment at work. In Texas (of all places) for instance, state law actually does preclude admitting evidence that was unlawfully obtained against a criminal defendant. But that, again, is state law. Not the 4th amendment.
I would also note that just because a crime was committed, doesn’t mean prosecutors are going to actually bring charges. So it’s hardly binary between being a state actor who violated the 4th amendment’s protections against unreasonable search and seizure on the one or he’s a private actor who must be arrested and prosecuted for a crime on the other.
Just to throw another wrench in as to why he broke into the house: the heroine who was his SO was trying to figure out who had taken his first wife, so the heroine had a brunch with all the suspects. Friends were helping her, and they had a video camera set up. During the brunch, everyone fell asleep except the bad guy, who kidnapped the heroine. no one was awake to catch, but they had him on video. Hero was trying to find heroine.
Honestly I think the author didn’t really know enough about the law to get this straight. She just wanted a trial with inadmissible evidence that ended up with the bad guy getting a light sentence
So the key question is whether the policeman being off-duty is suffiecient for him to not be considered an agent of the state. I wonder if carrying badge and gun at the time makes a difference?
Interesting question - if a police chief is an executive paid a monthly salary, rather than by the hour, is he technically never “off the clock”?
Re the exigent circumstances - saw that in an episode of Chicago PD - one cop says “did you hear that, someone screamed!” even though there was no sound. This gave them exigent circumstance pretext/pretence (much like chasing a suspect) to enter the premises. But as Loach points out - to clear the exigent circumstances. I suppose you could try to explain the scream or gunshot may have come from inside the freezer in the basement, but that would be a stretch. Similar to - if the warrant says “search for gun” you cannot open envelopes and file folders that could not possibly hold a gun.
We had a case in my province where DNA evidence was obtained by a private detective who broke into the suspect’s car and obtained a DNA sample from a cigarette butt. That was sufficient grounds to get an order requiring the suspect to give DNA samples. I think the accused challenged the source of the butt, unsuccessfully.
Bizarre case: suspect was a doctor who defeated three prior DNA tests by inserting tubes with other men’s blood in his arm, which tested negative against semen samples from the victims. The fourth time, using the info from the cigarette butt, the police got an order for buccal swabs and hair roots as well as blood samples, which matched the semen samples.
ETA : was re-reading the refs to the WP article snd it was a chapstick , not a cigarette butt.
So, can the police hire a private detective (or anyone really) to break in and collect evidence the police cannot and they just not bother arresting and/or prosecuting that person? Then take that evidence and go after someone else?
Seems silly but that seems to be something the police could do.
It depends heavily on state law and on the officers department written policies.
Off duty I can legally take action anywhere in the state for felonies and I can legally take action off duty for any violation of law within the municipality I work. But my departments policies dictate I can only put myself on-duty for violent felonies regardless of where I am. Anything else I’m just a wittness. And if I’m working for another employer at the time (say as a private dick or security guard) I cannot put myself on duty for anything. I’d be operating as a private citizen.
And the state actor doesn’t have to be paid or a professional. If the police use anyone to act on their behalf to obtain evidence improperly it would be considered to be an extension of the state and subject to the 4th amendment restrictions