INSIDE A CRIME SCENE, SEARCH WARRANT LIMITATIONS, AND CRIMINAL APPEALS - 063

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This week on the Writer's Detective Bureau, inside a crime scene, search warrant limitations, and criminal appeals. I'm Adam Richardson, and this is the Writer's Detective Bureau.

Welcome to episode number 63 of the Writer's Detective Bureau, the podcast dedicated to helping authors and screenwriters write professional quality crime-related fiction. This week, I'm answering your questions about what it really feels like inside a crime scene, the limits of a search warrant, and some clarification on cold cases and criminal appeals, but I have some people to thank first.

As always, I need to thank my gold shield patrons on Patreon, specifically Debra Dunbar from debradunbar.com, C.C. Jameson from ccjameson.com, Larry Keeton, Vicki Tharp of vickitharpe.com, Chrysann, Jimmy Cowe of crimibox.com, and Larry Darter for their continued support, and special thanks this week to Natalie Barelli of nataliebarelli.com for upping her pledge and becoming a gold shield patron just a few days ago.

I'd also like to thank all of my coffee club patrons for their support every single month. Your support keeps the lights on in the Bureau. You can find links to all of the writers supporting this episode by going to the show notes at writersdetective.com/63. To learn about setting up your own Patreon account for your author business, visit writersdetective.com/patreon, P-A-T-R-E-O-N.

We're starting this week with a flashback to 2015 when I first started my blog and when award-winning and bestselling crime writer Sue Coletta gave me a shot at my very first guest blog post. You can still find it up on Sue's website AT suecoletta.com. before we get into our first question, which will line up nicely with this actually, I thought I'd blow the dust off of this guest blog post I did, and share what it really feels like inside a crime scene.

It's a familiar scene. A dead body is on the floor. Blood spatter is everywhere and spent shell casings are strewn about the room. The first police officer on scene checks the area for the shooter, but he's GOA. The officer then checks the victim for a pulse, DRT (GOA means gone on arrival, and DRT is some unprofessional slang for dead right there). This is a murder scene. The crime scene is locked down. The yellow tape goes up and homicide detectives are called.

What happens next? Well, before CSI swabs a single blood droplet or a homicide detective opens a single drawer, your detective needs a warrant. I know what you're thinking, "But this is a homicide scene." Well, hang on a second. In 1978, the U.S. Supreme court ruled in Mincey v. Arizona that even though a homicide occurred inside a building, it does not give law enforcement carte blanche to search the premises for evidence beyond what is in plain view.

In other words, if investigators wanted to search beyond what is immediately visible, things like bullets stuck in walls, blood spatter behind the bookcase, or looking into drawers, they need a search warrant to further bolster the warrant argument. The court ruled that it was not reasonable for law enforcement to freeze the crime scene for hours and hours or to bring in scientific experts that are not sworn law enforcement officers without a warrant.

It's time for you to meet the Mincey warrant. It's a relatively short fill-in-the-blank search warrant for a crime scene. The next time your detective responds to a crime scene, consider mentioning the Mincey warrant to add a little bit of realism to your story. At this point, the Mincey warrant has been approved, and your investigative team can go into the scene and do all the CSI processing you've seen on TV, but what's it really like inside the crime scene?

The image you probably have in your mind right now is one of important looking people doing important looking things all over the place. Blood spatter experts readying their swabs, CSI photographers photo documenting everything. Ballistics experts plucking rounds from walls and plotting trajectory angles, detectives in suits with little blue booties on their shoes trying not to disturb anything. Maybe even a uniformed officer standing at the entrance to the scene with a clipboard.

This familiar scene absolutely occurs in real life, but it's not what the crime scene initially looks or feels like. Remember in the beginning of this before the Mincey warrant bit where we talked about the crime scene being locked down and yellow tape going up? That locked down is a timeout. Everything stops. What you don't see on TV is what it's like to be the first one back inside the crime scene. It can be very surreal like you're stepping around inside a photograph.

I remember the scene of an officer involved shooting where officers engaged suspects fleeing from a jewelry store robbery and a gun fight. The battle occurred in the front yards of a residential street after the officer's foot pursuit of the suspects led them into a neighborhood of small houses with decent size front lawns. It was after dark when I arrived, and the entire street was still locked down. Our CSI team had set up spotlights on tripods illuminating part of the street like a night game on a football field.

Our CSI team was shorthanded that night, so I was assisting the CSI photographer by painting with light the area's not lit by the spotlights. We were the only two inside of this crime scene, which was literally an entire city block. As I slowly moved around the scene with a light source, the CSI photographer kept the shutter on her camera open to capture as much detail as possible. Everything behind the yellow crime scene tape was in an eerie real life freeze frame. Time seemed to stop. A police car was stopped halfway on the lawn with its front doors open.

A police motorcycle was on its side in the middle of the street. Spent shell casings were strewn about the street and sidewalk. A jewelry thief laid dead on a front lawn. The only things that seem to move and make sound were the emergency lights from the police car and the police motorcycle. As the police cars light bar a word and clicked, its light danced across the trees and houses. Everything else in the previously chaotic scene was perfectly still. How will you capture this surreal feeling of frozen time when your detective first enters a crime scene?

in our Facebook group this week, Cassie Gustafson asked, "When police are conducting a search on a private residence with a warrant purpose accused of lewd and lascivious acts against the child, how far would the search extend in the house, to the kitchen, garage, barn attic? Would things be pulled out from all drawers, cupboards, cushions, et cetera, or would it be more centrally located around electronics and such? Thanks."

Well, Cassie, as you know, we've talked about search warrants quite a bit on this podcast and the probable cause required to get them in previous episodes, but we haven't covered in much detail what a search warrant actually allows the police to do as far as the search itself. In case you haven't listened to the previous episodes that talk about search warrants, let me give you a very brief CliffsNotes version.

When an investigator has probable cause for a search warrant, meaning sufficient articulable facts to believe that this search will turn up evidence to a crime, a specific crime, the investigator authors an affidavit in support of a search warrant. This is where the facts of the case are laid out. The investigator drafting this affidavit is called the affiant or affiant. The affiant then swears to the judge that the facts in the affidavit are true and correct to the best of the affiant's knowledge.

Now if the judge agrees with the affiant's assertion that probable cause exists to search this location, then the judge signs the search warrant, which is technically a separate legal document. The affidavit is the document that tells the story of the case and the facts supporting the request for the search warrant, where the search warrant itself is the actual court order. Now to get back to Cassie's question, where the investigators are allowed to search and what they are allowed to search for really come down to what the affiant included in the affidavit and what the judge finds to be reasonable.

Whatever he finds a reasonable is going to be listed on the actual search warrant. Let's say I am Ace Ventura, pet detective. I'm working the case of my career, the case of the stolen elephant. All of my leads point to the stolen elephant being inside the mansion of one Ray Finkle. My interview of the garbage man reveals that there's the unmistakable stench of elephant dung in the trash. I have surveillance video of the Acme elephant food delivery truck delivering 50 pound bags of what I believe to be Acme elephant food.

Finkle even posted photos of the elephant in his living room to Instagram. I put all of this into my affidavit in support of a search warrant, and the judge agrees that there is sufficient probable cause to believe that the elephant is or was in Ray Finkle's home. In my affidavit, I request that the search warrant be specifically issued for Finkle's home and that the evidence I'm seeking in this search warrant is the elephant. Now, off I go to Finkle's home with my search warrant in hand.

What am I limited to when it comes to my search? Well, I can only go searching for the elephant because that's the only thing I told the judge I was looking for. That means I can't go looking in the medicine cabinet, the dresser drawers or any kind of container that is smaller than the elephant. What about that detached garage that has the newly added elephant height roof? If I only asked the judge to look in the house itself, that means I can't go in the garage either because the search warrant doesn't cover it.

I think you see where my ACE Ventura analogy is going. for your scenario, Cassie, the affiant will include specific verbiage in the affidavit and on the warrant itself for all the locations that should be covered by the search warrant and the specific evidence the detective is looking for. When the judge is reviewing the affidavit, he or she is also ensuring that the search warrant itself is not overly broad in what it's looking to search for and where it is looking to search.

In the case of your lewd and lascivious act case, your affiant is going to ask for the search warrant to cover the suspect's residence, vehicle, any outbuildings or storage locations that the suspect has access to or control over. If your suspect rents a room in a house from someone else, the detectives will likely be limited to searching the suspect's bedroom and any common areas he has access to, but they will not be allowed to search the bedroom of the landlord.

Now, it doesn't mean that the detectives can't sweep that room for safety reasons when they first serve the warrant to make sure someone isn't hiding in the closet or something, but that would be about the limit on searching that otherwise off limits area. Now as for your evidence that your detective is looking for, she'd explained that based on her training and experience that suspects in lewd and lascivious acts upon children often video record their crimes to relive the experience again later, and therefore the affiant requests that a search warrant be issued to include all devices and memory media capable of storing this kind of footage.

You could also include things like the telephone and because of how the grooming occurred as far as trying to make contact with that child. Any relevant facts in the case that can lead to potential evidence or justification to seek that evidence needs to be included in that search warrant affidavit and then again on the search warrant itself. Now, unlike looking for an elephant, your detectives are able to search anywhere your suspect might be able to hide, I don't know, a microSD card because the judge finds that your request is specific and not overly broad.

Without getting too into the weeds on search warrant stuff, affiants will always include a list of evidence that they're looking for that will reasonably get them access to those smaller areas. Asking for things like utility bills to prove who has access to this location is a common thing to ask for, especially as it defeats an argument that the suspect has no connection to the location. Yes, we could look inside drawers, inside cereal boxes, sofa cushions, anywhere the suspect could have hidden any of the evidence listed on our search warrant.

Ace Ventura search warrant should have included evidence that tends to show that the suspect possessed the stolen elephant to include receipts for elephant food, utility bills listing the suspect's name, address and so on. It's also worth mentioning that when you seize electronic equipment under this search warrant, things that have some sort of internal memory like a cell phone or a video camera or a computer or even an entire computer network, you may have to author a second search warrant or get an addendum to your original search warrant to cover the extended forensic searching of the devices, especially if you didn't cover the request for the computer forensic search in the original search warrant.

Many of the warrants we write will have a boiler plate so we also call them and go by, just a pre-filled out list of types of evidence that we're looking for. You don't have to reinvent the wheel every time you write an affidavit, but, and this is a big one, you have to make sure that everything listed in that boiler plate list is applicable for this case and not simply thrown in there just because you always look for that kind of thing. Everything you ask for has to be intentional and specific to the search warrant.

Plus, you need to specifically justify in your affidavit why you are looking for those things. Let's say we serve Cassie's search warrant looking for all the things related to a child sex crime, and lo and behold, we find a drawer in the closet that has a knife with dried blood on it or a map that says serial killer burial locations with xs marking spots in the nearby woods. Can we seize that as evidence since it's not listed on our original search warrant?

Technically, we probably could because we found it in plain view as we had a legal right to be searching that location, but we are getting close to exceeding the scope of our search warrant if we switch our focus to searching for items related to homicides. What would realistically happen is we would pause our search and have the judge authorize an addendum to the search warrant to now include evidence of murder, then resume our search looking for murder evidence in addition to the original lewd and lascivious acts upon a child evidence.

There would be essentially an additional paragraph added to the end of your affidavit, and then the stuff that you're looking for in that affidavit would then be included in the search warrant, and the judge would sign that a denim as well. Now that you know all this, my one piece of advice is to not bore your reader or viewer with all the technical details of search warrant mechanics. Now, it is absolutely great for you as the author or screenwriter to know because your protagonist knows this stuff inside and out, but going into too much detail about it will definitely slow down the pace of your story and cause readers to nod off.

Lastly, once you've served your search warrant and you leave the location, that's it. You can't go back without a new search warrant. You can stay as long as you need to like post a single officer overnight and have your detectives come back the next day, but once the police leave the location completely, they don't get to come back without a new search warrant. Reconsider that scene of your protagonist going back through the murder scene house looking for missed clues a week later because that isn't reality.

Ken Shoemaker, who you can find at facebook.com/shoemakerken51, writes, "Hi Adam, I'm working on a case that involves corruption and bad police work. I have a tough question. You are promoted to lieutenant and given command of your own unit. Your first order is to review a cold case due to go to retrial on appeal. Another agency investigated the case originally. During your investigation, you find mislabeled evidence and wrong case numbers, untested evidence, witness statements that contradict each other and have changed many times."

"Your supervisors are telling you to rubber stamp the case file and send it back to the DA. You also find that many people involved with the case have political ties to a sitting governor and the mafia. How would you proceed?" Thanks for reaching out, Ken. First, we need to unpack your scenario here because there's a lot going on, and a bit of it doesn't make sense to me. You said your first order is to review a cold case due to go to retrial on appeal.

First, a cold case is one that is open and unsolved, so there wouldn't have been a trial since a cold case by definition means it hasn't gone to trial, or at least the actual culprit hasn't been identified and tried. Let's assume that you really mean an old case, not a cold case. I'm not trying to call you out on this. I'm mentioning this as a learning point because the legal side of the jargon often has a very specific and different meaning than what we just assume it to mean.

On a quick but related tangent, my favorite example of this is the word mayhem. I always think of 1960's television show Batman and the booming announcer's voice teasing mayhem in Gotham or something of the like. We think of mayhem as pandemonium, which is defined as wild and noisy disorder or confusion or uproar. The synonym I think we're really thinking of is bedlam, because the legal definition of mayhem is what Mike Tyson did to Evander Holyfield or Lorena Bobbitt did to her then husband, which is to permanently deprive someone of their own body part.

I digress. We'll quit the vocabulary lesson, and we'll go back to your case. Back to the old case going on trial on appeal, assuming this is a case where the defendant in the trial was found guilty and the case is being appealed, it's important to understand that an appeal is not a retrying of the case. It's not a do over. An appeal is where the convicted person is asking an appeals court to review whether the trial court made a legal error.

Using your example Ken, those legal errors could be things like the prosecution hiding exonerating evidence or if the judge wrongfully allowed into evidence something that was obtained in an unconstitutional manner. By that, I mean something like seizing a murder weapon in a situation where a search warrant was required but didn't have one, so it should not have been entered into evidence or that the detectives discovered the murder weapon as the result of questioning the suspect after the suspect expressly invoked his right to have an attorney present before questioning.

That would be the fruit of the poisonous tree issue. Those are the things that the appeals court is looking at. When the appeal happens, it's not something the police department really gets involved with as far as an evidence review because the appeals court is really looking at the totality of the trial court's proceedings, so what evidence was allowed in, the rulings of the judge as the trial progressed, those sorts of things.

Now, it is important to understand that retrials are a thing, but those usually come about as the result of either a mistrial, meaning the judge halted the trial often as the result of a hung jury, which is when a jury is hopelessly deadlocked in deciding a verdict or if an appeal has been granted by the appellate court in the defendant's favor and then the prosecutor's office has the option to try the case again. I'll save the double jeopardy discussion for another day, but I'm betting that this last scenario is what you're thinking about for your story.

Then I should mention that I do have a question also as to how all of this mislabeled evidence and contradictory testimony or interviews didn't come to light during the first trial as all of it would have been turned over to the defense attorneys as part of the discovery process, well, realistically. With regard to the contradictory witness statements, those witnesses realistically would have been subpoenaed to testify in the trial. That way, the jury would hear what the person had to say under oath.

The witness statements that were contradictory, if those were recordings or transcripts from a police interview, those may not have ever even been relevant because the witness statements may have actually been given as actual testimony in the court. It is possible that a case would be retried after an appeal is affirmed like we just talked about, but that brings us to the last part of your question. Reviewing another department's investigation.

There'd be no reason for your character, the police lieutenant, to be reviewing a case that doesn't belong to the police department he works for. It would either be reviewed by the original investigating officer or that investigating officer's supervisor or manager, or it would be reviewed by an investigator for the district attorney's office, which in your scenario you referred to as the prosecutor. That DA investigator is a detective type of assignment that is technically a law enforcement officer, not an attorney.

DA investigators handle supplemental interviews of witnesses. Once a case has been filed in court by the DA, they locate witnesses, and they'll handle certain types of criminal investigations. Their mandates really differ from one DA's office to the next, but it's a career worth researching for new character ideas that you don't typically see in fiction. Now that said, I have to admit that I saw in season five of Bosch that Michael Connelly included a pair of DA investigators assigned to the DA's conviction integrity unit.

Regardless of the messy details of the scenario here, the most important question you asked is how would you proceed? I don't mean me specifically, but how should any law enforcement officer or prosecutor proceed when faced with potentially exonerating evidence? The answer is that you have to do what is right and say something. Our entire justice system is built on the belief that as U.S. Supreme Court Justice White delivered in his opinion of the 1895 U.S. Supreme court case Coffin et al v. United States, he said, "It was better to let the crime of a guilty person go unpunished than to condemn the innocent," which is a reference to Blackstone's ratio.

Anyway, the bottom line is that it is our duty to protect the innocent. To acquiesce to anything less is to go down one hell of a slippery slope, and it shouldn't be lost on your detective that if the guy in prison is actually innocent, then it means the converse is also true, that your real culprit, your real suspect is still out there, and justice still has not been served. I hope this helps, Ken. Again, you can find ken at facebook.com/shoemakerken51. You know what time it is. It's your quick weekly reminder to do something about those easy to guess passwords you're using over and over.

Check out LastPass for free or upgrade to LastPass premium for $3 a month. Just go to writersdetectivebureau.com/lastpass. Thanks so much for listening again this week. If you are doing NaNoWriMo this year, then happy preptober. Let's get your crime fiction story preparation questions answered. Do it right now.
Send them to me by going to writersdetective.com/podcast. Thanks again for listening. Have a great week, and write well.