On an old Law and Order episode, a woman was confronted at her residence by two detectives and an attorney. They had neither an arrest warrant nor a search warrant. During the conversation which took place outside her apartment door in the hall the police explained that she might as well allow them to enter and search her apartment since one detective would remain outside her door until the other returns with the warrant to ensure that she did not leave with any evidence.
Could the police search her person if she were to attempt to leaver her apartment after denying them entry? I have seen this argument made at other times either on television or in the movies. It seems to make no sense. They can’t search her apartment without her consent but if she tries to leave it they can search her person without her consent? They ultimately were granted admission due to extreme coercion which became the issue on the show and found a pair of shoes with crime scene evidence embedded in the soles. She could easily have left the apartment in these shoes with no one being the wiser.
Which implies they need probable cause? If they had probable cause, could they not arrest her when she answered the door? (And if they do arrest her on her way out, the question would be - why didn’t you arrest her immediately?)
I’m trying to imagine what sort of evidence they would expect to find that could not be significantly compromised by the person during the time they were waiting for a warrant. Bloody clothes? Wash. Shoes? Wash and clean. (Or bleed all over them - good luck finding a spot that’s the different blood.) Jewelry? Chop with wire cutters and flush. Drugs? Duh. Almost anything - throw out window, who’s watching outside, land it on neighbour’s roof not street, etc.
Actually, no. They’re distinct legal terms. The police only need reasonable suspicion, not probable cause, to prevent you from leaving the scene, frisk you for weapons, and ask relevant questions.
Regarding the destruction of evidence- yes, it’s possible, but it is also in and of itself a crime. You might make it harder, but the idea you’ll destroy 100% of the evidence without making yourself look guilty in the process has backfired on a lot of criminals over the years.
This is what I find about “detain” rather than arrest.
Of course, reading that, I cannot imagine in what universe the NYC stop-and-frisk would be legal. Basically it seems the police have to have some suspicion of imminent illegal activity. For the OP, basing it on a crime long past and over does not work. Second, the frisk part is only for weapons, cases have shown that continuing to search when something is obviously not a weapon (i.e. pill bottle) can get the case tossed. the only question the stoppee is required to answer is to identify themselves. In the OP case, they know who the person is. How long does it take to verify no hidden weapons? if they think the person is carrying away evidence leaving the apartment, then that suggests to me they would need to arrest them to search them, and I suspect “that’s what I think they are doing” is not probable cause.
I am NOT a lawyer. I just have known some, and watch a lot of tv shows about them.
If she left her apartment while they were waiting for the warrant, could they search her? I think so. Why?
Well, she knows they are coming with a warrant to search her apartment, and it seems obvious that she would prefer to be there when that search takes place, so her leaving is … a little odd. Odd enough that it might well constitute probable cause to believe she is committing a crime. That crime would be the destruction of evidence.
So, as the Detective waiting outside, I might be able to get away with searching her. “Your honor, based upon my years of experience and (blah blah blah), I considered it probable that she was attempting to destroy evidence, and so I searched her for evidence of same.”
That’s not a slam dunk, but I could see it working.
I sure hope not. “Based upon my years of experience and blah blah blah” is not the sort of thing probable cause is based on. “I saw her run into the bathroom with a bag and then heard the toilet flush immediately,” sure. “I thought it was odd,” nah.
People leave their homes all the time for all kinds of reasons. Simply leaving at some point over some undefined period of time is far from the level of proof I would expect someone to have before they determined that the imminent destruction of evidence was more likely occurring than not occurring.
Exactly. Plus, … what evidence? “we’re looking for a pair of ruby slippers, size 6” is far different from “maybe your husband was at the crime scene, we’re not sure, and maybe if we dig around your apartment, we’ll find something incriminating” - those are two wholly different scenarios. OF course, finding drugs in her pocket during a detain when a pair of ruby slippers don’t fit in that pocket would open a big can of worms.
If the police don’t know what they are looking for, then I assume they can’t get a warrant, so fishing expeditions - either in the home, or searching a person without probably cause or specific idea what you are looking for, are not allowed - unless they consent, hence the mind games to make them consent.
As I understand, a warrant would say something like - witnesses say someone who looked like suspect was seen at the scene, wearing the following clothes, shoes, and carrying the following weapons; plus victim was robbed, wallet and iPod are missing. Search suspect’s place of abode for any of the above mentioned items. It can’t say - we think he did it, so can we dig around his place for whatever we can find? It has to be somewhat specific.
Same stopping the woman leaving - needs probable cause, not gut instinct. I’m sure the police report would say “looking furtive” just to cover their butts; however, carrying a large package? Suspicious. Wearing weather-appropriate clothing and carrying a purse? Not exactly suspicious.
The 4th Amendment. An arrest is a seizure; the things that give rise to probable cause for an arrest in public are exceptions to the general rule that you need a warrant for an arrest. Private dwellings have much more protection associated with them then public settings, so the rule there is just that you need a warrant to enter the home to make an arrest.
If they had “reasonable suspicion”* she was armed and dangerous, they could frisk (feel around outside her clothes) her for weapons. Otherwise, I can’t think of a way they could legally do so. Whatever they find during the illegal search would likely be suppressed, i.e. not admissible as evidence. BUT the product of an illegal search may be used to indict in a grand jury proceeding.
Other than having the evidence suppressed, the officer may be individually liable for money damages under 42 U.S.C. § 1983 for violating a constitutional right while acting for the state.
*A less stringent legal standard than “probable cause,” which is required for a search/arrest warrants.
Yes thank you for pointing out that the jurisdiction would be New York,
where perhaps the police have been given great flexitude to clean the streets…
Here.
https://www.nycourts.gov/judges/SearchWarrant_Manual.pdf
According to that, the action of securing the boundaries of a private place while obtaining a search warrant to search is it is legal … Its the done thing in New York.
Missed the edit window so obnoxious double post it is.
New York law would not preempt warrant requirements because it stems from constitutional rights, i.e. the 4th Amendment protection against unreasonable search and seizures. New York may have laws and procedures to protect a citizen’s right beyond what’s required by the federal constitution, but it may not limit it.
Unless they are in hot pursuit, or are suddenly now seeing new evidence (“He just admitted something that leads me to believe he did it”), wouldn’t the cops need a warrant to arrest someone in or out of their home?
The only advantage to slamming the door then is that the police cannot enter unless it is “hot pursuit” for a just-occurred crime or known fugitive?