Author Archives: Kim

Warranted: search warrants

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Today we continue our exploration into the complicated world of warrants. This time it’s search warrants.

A search warrant gives police the power to look through private property for evidence or contraband. A search warrant has to be specific about the place to be searched and the items to look for. Once police have a valid warrant, they can enter the premises and look anyplace the items might reasonably be. If they’re looking for a stolen car, they can’t check dresser drawers. But if they’re looking for something small, like drugs? They can look pretty much anywhere.

Generally speaking, police are supposed to knock and announce their presence before serving a warrant. This is to protect everyone. If you owned a gun and someone came crashing into you house in the middle of the night, you might easily shoot (or be shot) before realizing they were the police. However, if police believe that knocking and announcing will present a danger to them (or someone else) or might endanger the evidence, they can request a no-knock warrant. Then they can just come barging on in (which does sometimes end up with people getting killed).

The courts have drawn up a long list of situations in which warrantless searches are allowed. Probable cause is still needed in most of these cases, but police need not get a warrant. A sampling of these warrant exceptions:

  • Automobile exception—police don’t need a warrant to search an automobile or anything in the auto. This applies to other forms of transportation as well.
  • Search incident to arrest—if a person is placed under arrest, police may search anything within her reach, even if she’s in cuffs.
  • Plain view—police don’t need a warrant to search items within plain view (or plain smell). So if a cop is legally inside someone’s house and happens to spot evidence or contraband sitting out, that’s fair game.
  • Emergency—if there’s an immediate threat to anyone’s safety, or if police are in hot pursuit of a fleeing felon, they can enter without a warrant.

Want a plot bunny? Police get a no-knock warrant to search Claude’s house. However, before they can serve the warrant and while the warrant is still valid, Claude moves out and Deirdre moves in. Cops come crashing into Deirdre’s house in the middle of the night, she’s terrified and confused and reaches for a weapon, cops shoot her.

 

Warranted: arrest warrants

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Last week we discussed the general requirements for obtaining a warrant. This week we’re getting more specific—we’re talking about arrest warrants.

Just to review, an arrest is a type of seizure, and therefore the requirements of the 4th Amendment apply. But even though that amendment implies you need a warrant, a long series of cases says not so much. In fact, police never need a warrant to make an arrest if the person is suspected of a felony. They also don’t need a warrant to arrest someone who’s committed a misdemeanor in their presence. So the only time they must have a warrant is for misdemeanors that the police didn’t witness. This constitutes a pretty small proportion of arrests, so in practice, arrest warrants are rarely required.

However, even if police don’t have to get a warrant prior to making an arrest, they might choose to do so. Why? Well, a warrant offers some potential benefits:

  1. It gets the suspect’s name into the system. This way, if the suspect is later stopped for something else—perhaps something small—police can easily tell whether he’s wanted for another crime. One of my students once failed to pay a speeding ticket or appear in court, so a warrant for failure to appear was issued in his name. Later he and a buddy decided to go swimming in an apartment pool after hours. Someone complained, cops came, and when they checked Steve’s name, there he was. He ended up spending the 4th of July weekend in the local jail.
  2. With an arrest warrant, the police can enter any property where the suspect is, without getting a search warrant. Absent an arrest warrant or search warrant, police can’t enter private property unless they are in hot pursuit of a fleeing felon (that is, the crime has just occurred) or some other emergency exists.
  3. Before getting an arrest warrant, a cop has to convince a magistrate or judge that there’s probable cause that the suspect committed a crime. This provides somewhat of a guarantee that the arrest won’t later be thrown out (by a judge) for insufficient evidence.

Even when a warrantless arrest is made, police must still have probable cause. An arrest made with less than probable cause is illegal and will be invalidated, ending the case.

Incidentally, want a plot bunny? Alma invites her friend Brad over to her house, unaware that Brad has an active arrest warrant out in his name. The cops see Brad enter her house and barge right on in after him. Too bad for Brad. But also too bad for Alma, who’s been packaging heroin in her living room. When the cops see the drugs, they arrest her too.

 

Warranted: general requirements

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For the next few weeks we’ll be tackling a big subject: warrants. This week we’ll talk about general warrant requirements, next week is arrest warrants, and the following week the focus will be on search warrants. Finally, we’ll discuss what happens if police violate the warrant requirements.

The part of the US Constitution that applies here is the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Okay, fine. So the amendment says that we have the right to be free from unreasonable searches and seizures. Great. And if the police want to get a warrant, they need probable cause.

So first off, what’s a search or seizure? Well, a search is government intrusion into a place or thing in which the owner has a reasonable expectation of privacy. If a cop overhears my phone conversation while I’m sitting at the adjacent table in Starbucks, that’s not a search because I can’t reasonably expect privacy. But if she grabs my phone and starts scrolling through my texts, that is probably a search.

A seizure is a meaningful interference with property or with a person’s freedom. If a cop tows my car away, that’s a seizure. If she slaps cuffs on me and hauls me off to jail? Also a seizure.

Great. But, um, what’s probable cause? The courts have been reluctant to define it too precisely, but basically it means there’s enough information that a reasonable person could deduce that evidence or contraband is likely in a particular location or that a specific person has committed a crime. It’s more than a hunch, more even than a good guess, but it’s far less than beyond a reasonable doubt, which is the standard of proof required for criminal convictions.

In simplest terms, the 4th Amendment says that in order to search or seize property or arrest someone, a police officer must have probable cause. And she must present her evidence in a sworn statement to a neutral party—a magistrate or judge—who will determine if probable cause does indeed exist. Furthermore, the warrant has to be specific about the place that’s being searched and what’s being searched for, or the identity of the person who can be arrested.

Now as it turns out, the use of warrants is more complicated than that. We’ll get to some particulars in the next two weeks.

Another thing to note now, however, is the procedure for obtaining warrants. The cop can show up in court. But almost all jurisdictions allow phone warrants as well, in which the transaction occurs via phone instead of in person. This is helpful if time is of the essence, e.g., the evidence is likely to disappear.

Supremacy clause

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Now is an excellent time to discuss the Constitution and the Supremacy Clause.

Here’s the clause itself, in Article IV:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So what does this mean?

Briefly, it means that the feds get the ultimate say as to what’s legal and what’s not. But in practice, things are more complicated.

States cannot contradict federal law. In other words, federal law preempts state law. So if a federal statute forbids or explicitly permits something, or if a federal court has ruled on something, the states have to live with that. Here are two examples:

In Obergefell v. United States (2015), the Supreme Court held that the 14th Amendment protects the right of same-sex couples to marry. Pursuant to that opinion, states can no longer prohibit same-sex marriage. The many state statutes and state constitutional clauses prohibiting these marriages are invalidated.

Under federal law, possession or use of marijuana is prohibited except under some very limited circumstances. It’s a Schedule I drug, subject to the same restrictions as LSD and heroin. Now, states can decide for themselves whether marijuana will be prosecuted under state law, and many have opted not to. But they can’t stop the feds from doing their thing. So if I light up a joint in California, the state and local police won’t come after me. But the feds might (although that’s unlikely unless I’m a big-time dealer).

If the federal courts hold that a particular right is not protected by the US Constitution, the states can still grant that right under their state constitutions. For instance, Oregon has interpreted its own freedom of speech clause more broadly than the feds have. So although the feds say obscenity can be prohibited under federal law, Oregon does not prohibit it under state law.

An upshot of all of this is that the states can generally give their citizens more freedoms than the feds do, but not fewer.

So if you’re frustrated by recent legal developments within the federal government and worried that particular rights may be curtailed? You can put on pressure locally to make sure your state provides the protections that are important to you.

Oops! I made a mistake!

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Fatigued after an 11-hour flight, Anna grabbed her well-worn suitcase off the luggage carousel. That bag had seen a lot of miles with her. She took a taxi home, left the suitcase near the front door, and collapsed into bed. She’d missed that bed!

Jet lag is rough. She woke up 12 hours later, still feeling bleary. After pouring coffee down her throat, she dragged her suitcase into the bedroom to unpack. But when she tried her usual combination, the lock wouldn’t open. She tried again. Nothing. Swearing, she thought to check the name tag.

Oh no. It  was someone else’s battered black suitcase. Hers was probably still sitting at the airport, but that wasn’t her biggest worry. She’d stolen someone’s stuff! What if the police were already on their way?

Anna can relax. She’s not going to be making a trip to the Big House, at least not over the suitcase.

Mistake can sometimes be used as a defense to criminal charges—but only sometimes, because there are two kinds of mistake.

The first kind is called mistake of fact. It occurs when the defendant was wrong about some material fact, such as Anna believing she’d grabbed her own suitcase. As long as Anna’s mistake was reasonable, it will usually be successful as a defense.

Why? (This paragraph is law geekiness, and you are welcome to skip it if so inclined.) Crimes require that the defendant commit a particular act—or fail to do a particular act, like paying taxes owed. This is called the actus reus, the evil act. But most crimes also require that the defendant have a particular state of mind at the time of the action. This is called the mens rea, the evil mind. Larceny, for example, requires that the defendant take someone else’s property (that’s the actus reus) and that she do so intentionally (the mens rea). So if Anna honestly believes she’s grabbed her own suitcase, she didn’t intentionally take someone else’s stuff and therefore didn’t have the mens rea. So she can’t be convicted.

(Okay, extreme geekiness over.)

The other kind of mistake is mistake of law. This happens when a person believes that the law permits a particular action—but the person is wrong. So if I honestly believe it’s legal to light up a joint in Boise (it’s not), the cops can arrest me and I won’t be able to use mistake as a defense.

The reason behind this rule makes policy sense. If we allowed people to claim mistake of law, well, wouldn’t everyone just purposely avoid learning what the law says?

So here’s a real-life example. Every fall I host a barbecue at my house for my department colleagues. It’s the one (and generally only) time everyone comes to my place. I live in a subdivision with a lot of identical-looking houses. A couple of years ago, one of my colleagues drove to my house, opened the front door (unlocked), and marched inside—only to discover it wasn’t my house. Luckily for her sake, nobody there noticed and she crept back out. But if she had been caught, she’d have had a valid defense.

Mistrials

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The case was going badly for the prosecutor. One of her star witnesses had disappeared days before the trial began, another fell apart under cross-examination and retracted most of his original statements, and the primary investigating police officer alienated the jury by appearing arrogant. But just as the prosecutor was ready to give up, screams reverberated from outside the courtroom. A moment later, a bailiff came rushing inside. “Your Honor! Your Honor!” the bailiff shouted. “A spaceship has landed three blocks away and aliens are everywhere!”

Smiling triumphantly and without missing a beat, the prosecutor leapt to her feet. “Your Honor? I move for a mistrial!”

What is a mistrial? Most simply, it’s the cancelation of a trial in progress. Either side can move for a mistrial, and the judge can declare one at any point up until the jury renders a verdict.

Mistrials are rare. They result in huge additional expenditures, plus they represent wasted time for everyone involved. If the defendant has been kept in jail pending her trial, a mistrial means she’s going to spend even more time locked up. For these reasons, the system strongly discourages mistrials. But they do occur.

What could cause a mistrial? Well, rarely is it an alien invasion. But that could be a reason. Anything that makes it impossible for a fair trial to proceed could be cause for a mistrial. Potential causes include:

  • Natural disasters or other serious, long-term emergencies
  • Death of someone critical to the case, such as one of the lawyers or a juror
  • Juror misconduct
  • Serious errors in matters such as choosing the jury or admitting evidence
  • Errors that are fundamentally prejudicial to the defendant, such as the prosecutor making statements she shouldn’t
  • Jurors’ inability to reach a verdict

When I googled for recent mistrials, I found some interesting cases.

  • At a murder trial in Iowa, the prosecutor improperly informed a potential juror that Iowa does not have the death penalty.
  • At a trial in Texas for improperly carrying a weapon, a juror was assaulted (by someone unrelated to the case) outside the courthouse and was too distraught to continue.
  • In a robbery case in Virginia, technical errors meant people in the hallway—including witnesses—could hear testimony going on in the courtroom. Also, one juror kept falling asleep.
  • In a corruption case against the former LA County Sheriff, the jury was deadlocked after four days of deliberations.
  • In a California homicide case, a juror disregarded instructions and looked up the legal definitions of specific crimes.
  • In a Colorado homicide case, the prosecutor withheld evidence of a police officer’s misconduct.
  • In Kansas, a local news station aired footage of potential jurors in a murder case. Interestingly, after the mistrial was declared, a change of venue was also granted.

When a mistrial is granted, the system basically pretends as if the trial never happened. Double jeopardy doesn’t prohibit the defendant from being retried. The prosecutor can choose to drop the case entirely, but most often, a new trial will start from scratch.

Jurisdiction

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Jurisdiction is… interesting. If you watch cop shows or legal dramas, it’s a term you’ve heard thrown around, yet few people have a firm handle on what it means. Today I’m going to fix that.

At its most basic level, jurisdiction simply refers to the legal authority to handle a particular case. Law enforcement agencies have particular jurisdictions, as do courts. Technically, jurisdiction refers to a particular subject matter—that is, whether an agency has power to deal with a particular type of case. A small claims court does not have jurisdiction to hear a murder case. Your local police department does not have jurisdiction to make arrests for federal immigration offenses.

In practice, however, we often use jurisdiction in a geographic sense as well. The LA County Sheriff’s Department has jurisdiction in LA County—and not, say, in Kern County.

Jurisdiction is a complicated issue in the US because our legal system is fragmented. While most countries have a single (federal) court system and a single (federal) law enforcement agency, we don’t. We have state and federal courts, some of them with quite specific areas of authority (such as military cases or bankruptcy cases). And we have many thousands of police agencies at local, state, and federal levels.

Jurisdictions can overlap. Imagine I kidnap someone in Wyoming and drag him to my hometown, only to be caught on the nearby university campus. In that case, dozens of law enforcement agencies might be involved, including the FBI (a federal agency) and many state and local police departments. Just from my own area, my city police, the Highway Patrol, and the campus police might be there (the latter two are both state agencies). It can be confusing! And while agencies very frequently cooperate with one another, sometimes friction or rivalry may exist.

The takeaway for you as an author? If a police department or court is dealing with a case in your book, make sure they have proper jurisdiction. That may require research to determine who handles what, but you definitely don’t want to get it wrong.

 

 

High-speed chases

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Not long ago, my husband was watching a police chase via live feed on Facebook. The chase covered a long distance, all the way from Inglewood (near central LA) to Kern County, 92 miles to the north. But what’s interesting about this case was the time it took: 2 hours.

Now, I’ve made that drive quite a few times myself—albeit not in a stolen Mercedes—and yes, when traffic is heavy it can certainly take that long. And when you have two little kids in the car with you who decide they need to pee with great frequency? It can take even longer. But you’d think someone eluding the police would manage better than 45 mph, right?

We’ve all seen exciting high-speed chases. I have two fictional movie favorites: Blues Brothers and Raising Arizona. And in real life, high-speed chases do happen. But they’re risky to the officers involved and to innocent bystanders. One study says that since 1979, over 11,000 people have been killed in high-speed chases. Over 5000 of those people were non-violators and 139 were police officers. Years ago, one of my students was doing a police ride-along when other cars got involved in a high-speed pursuit. The fleeing suspect ran over woman and her baby as she pushed a stroller through a crosswalk.

Not only have innocent people died or been injured during high-speed pursuits, but sometimes police departments get slapped with lawsuits by people who were injured or received property damage.

For these reasons, some agencies have banned high-speed pursuits completely. They’ve determined that it’s better to let a bad guy go free than risk everyone else. Most agencies haven’t gone that far, but they usually have policies in place that restrict high-speed pursuits to situations where they consider the suspect a danger to others. They may, however, use helicopters, drones, and other technology to keep tabs on a suspect in a low-speed chase. Or they can just follow him slowly, as happened most famously when OJ Simpson was arrested. In the case my husband was watching, the suspect was apparently wanted initially for trashing a hotel room.

The truth about science and crime

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Every crime show ever.

Setting—messy crime scene

Attractive Detective 1: Wow, look at all this blood and semen so helpfully spread all over the crime scene!

Attractive Detective 2: I will collect it and rush it to the crime lab, pronto!

5 minutes later,  setting—gleaming hi-tech crime lab

AD 2, handing evidence to Attractive Lab Tech: This case is super important. We need results pronto!

ALT: Right on it, Detective.

5 minutes later

ALT: Here you go, Detective. Yep, all the DNA definitely belongs to Slimy Suspect. I’m 100% sure.

AD2: Great, thank you!

5 minutes later, setting—courtroom

Stern Judge: I sentence you, Slimy Suspect, to life in prison!

How many times have you watched TV shows with essentially this scenario? There are many inaccuracies here, but today I’m going to focus on one, involving that crime lab.

On TV, the lab gets the evidence and analyzes it, and the suspect promptly finds himself whisked off to jail. In reality, though, evidence analysis takes time. Most of this is due to high demand and limited capacity. It’s estimated that the current backlog may include well over 350,000 cases. And it’s not just DNA from crime scenes, but also drug testing and evidence from rape kits. Depending on the jurisdiction and the case, it may take over a year to get results back from the lab.

Time isn’t the only problem. Labs range in quality and not all are accredited. Their employees also vary in accuracy. There have been numerous reported cases of lab employees making errors in their work, either by accident or on purpose.

And even the best employees of the best labs can’t always get wonderful results. Forensic evidence can degrade or be contaminated. To give a personal example of this, when I was in college and working at a deli, I was robbed at gunpoint. When the police came, they dusted the counter for prints, but we all knew that was a pretty useless activity. Over the course of the day, dozens of people had touched that counter, so distinguishing the robber’s prints from everyone else’s would have been impossible. (They never caught anyone for the crime.)

And even when the evidence is in great shape, an analysis can never deliver absolute certainty. The best it can do is offer a probability of a match. And if the (innocent) suspect has an evil identical twin, he may be out of luck.

Finally it should be noted that DNA and similar evidence isn’t present at most crime scenes. If someone robs a bank, she’s probably not going to leave behind blood or anything else that is an obvious source of DNA evidence.

So those pretty detectives and lab techs might make for fun TV viewing, but they have little to do with law enforcement reality.

The hole

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You’ve heard it mentioned in countless prison movies—the hole, prison slang for solitary confinement—and it turns out, the truth is pretty ugly.

Let’s define the term first. An inmate in solitary confinement will be housed alone. Generally, the only humans he interacts with will be prion guards, and even that will be brief. He will remain in his cell almost all the time, perhaps being permitted out for a brief period to shower or exercise (also by himself). Solitary has other nicknames too, such as adseg (short for administrative segregation). Solitary is often placed in an area called the SHU, for Secure Housing Unit.

Some of the first US prisons used solitary for all inmates. The theory was that prisoners kept alone would have time to think about their erroneous ways and reform themselves. What happened instead was that, deprived of human contact, the prisoners went crazy. Because solitary confinement was also expensive and restricted inmates from doing most kinds of work, it was soon replaced by other prison models.

But solitary remains in use for several purposes: 1. Punishing prisoners for crimes or misconduct committed while they are locked up; 2. protecting vulnerable prisoners from other inmates; 3. restricting suicidal inmates’ access to objects they could use to harm themselves; and 4. segregating inmates determined to be especially risky, such as gang members.

Conditions in solitary vary a great deal. In some cases, they are very poor. The cell may be extremely small and sometimes devoid of everything except some kind of toilet. The inmate may even be naked. Prisoners in solitary are often given little to do with their time.

There are no limits on the length of time someone can spend in solitary. Some have spent decades there. Many advocates argue that this amounts to torture, especially when the prisoners are young or mentally fragile. It’s also poor policy, in that most prisoners in solitary will eventually be freed but will have a sky-high risk of recidivating.

The US uses solitary to a great extent, and some people claim that this amounts to human rights violations, especially when the confinement is long-term.