FLOWERSANDFORENSICS, SEEING THE JUDGE, AND KNOCK & NOTICE - 074

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This week on the Writer's Detective Bureau, Flowers & Forensics, seeing the judge, and knock and notice. I'm Adam Richardson and this is the Writer's Detective Bureau.

Welcome to episode number 74 of the Writer's Detective Bureau, the podcast dedicated to helping authors and screenwriters write professional, quality crime related fiction. This week I'm giving you a tip on a great new forensic science resource, and I'm also answering your questions about getting a warrant signed by a judge and the realities of knock and notice. But first, as always, I need to thank my gold shield patrons, Debra Dunbar from debradunbar.com, C.C. Jameson from ccjameson.com, Larry Keeton, Vicki Tharp of vickitharp.com, Chrysann, Larry Darter, Natalie Barelli of nataliebarelli.com, and Craig Kingsman of craigkingsman.com for their support. I also want to send a huge thank you to my Coffee Club patrons. You can find the links to all of the writers supporting this episode in the show notes at writersdetective.com/74, and to learn about setting up your own Patreon count for your author business, or to support the show for as little as $2 per month, visit writersdetective.com/patreon. P-A-T-R-E-O-N.

Before we get to this week's questions, I have a fantastic forensics resource that I'm really excited to share with you. I will include this in the January Writer's Detective APB that will be going out later this week, which if you aren't already aware is my mailing list. One of my new year's resolutions is to be more on top of my mailing list for 2020, so if you're interested in getting emails from me with curated links to writer's resources like the one I'm about to share with you, just go to writersdetective.com/mailinglist to sign up.

Okay. This name may sound familiar because she's been a long time member in the Writer's Detective Facebook group, answering all sorts of forensics questions. I'm happy to share that Melissa Kreikemeier has a brand new website and blog at flowersandforensics.com. Melissa is a former forensic scientist turned professional editor specializing in crime fiction and other scientific content. Melissa is awesome and she's already killing it with her blog by covering things like what crime scene investigators actually wear, or how long do DNA results actually take. What are the different types of crime labs and how do they work, and a whole lot more. Definitely bookmark this resource for future reference. Melissa tells me she has quite a few more informative blog posts already scheduled to go live soon. So again, her site is flowersandforensics.com

In the Writer's Detective Q&A Facebook group, author K.A. Lugo of jackslaughterthrillers.com and I had a back and forth about serving a search warrant at a crime scene. It brought up the topic of who actually gets the warrant signed. I've talked a lot about search warrants and arrest warrants on this podcast, and even how statements of probable cause are part of a warrant affidavit. How an affidavit is actually an application for a search warrant and how the one authoring an affidavit for a warrant is called an affiant, or affiant. However you want to pronounce it. But in my conversation with K.A., I realized I've overlooked a pretty important aspect of being the affiant in seeking a search or arrest warrant. In K.A.'s scene she had the detective Lieutenant bringing the search warrant to the scene where the detectives were about to serve the warrant.

From a writer's perspective, this seems like a pretty logical thing for the boss to do, right? Because getting the warrant is a very important thing and that's what bosses do, very important things. Or at least they like to think so. But here's the thing, it's the detective that gets the search warrant. It's not because it's, here we go with air quotes again, their job to get the warrant. The reason it's the detective's job to get the warrant, signed by the judge, is because the detective is the affiant or affiant. I still like affiant better. When you author a warrant affidavit, you bring that affidavit and the warrant itself, the warrant being the court ordered that the judge signs, and the affiant swears to the judge under penalty of perjury that in that affidavit the detective believes that the facts set forth are the truth as far as they know. The judge will not sign a warrant until the person who wrote the affidavit swears that what they've written to tell the judge the story of what happened so far and the explanation of how this equates to sufficient probable cause is the truth.

So that is why the detective goes to the judge and not one of the bosses. I should mention that the detective will undoubtedly have one of the prosecuting attorneys review the affidavit and warrant to make sure there's sufficient probable cause, because ultimately the prosecutor will be the one taking on the case in court. Also, you don't want to be the detective that wastes a judge's time. Especially if it's after hours. I can't tell you how many meals I've interrupted or nights sleep I've ruined of judges in my career. And if I'm going to show up at the Chinese restaurant to interrupt the judge's dinner with his extended family, all 15 them in a private dining room, I better deliver a warrant that is a no brainer for him to sign. That's a true story. But hey, the judge knew he was on call for warrant service that night, so it's not my fault. But because warrants, search warrants especially, are the bread and butter of every day detective life, detectives get to know the local judges.

So your writing ability and later on your testimony becomes your reputation in the local legal community. I mentioned this because if you want to portray your detective protagonist as being the best at their job, one way you can accomplish this is by having judges already assume that the affidavit is good to go just based on which detective is bringing them the paper. And paper being slang for a warrant. If you have a search warrant for a house, it's common for us to say, "We have paper for the house." Anyway, let's get back to the Chinese restaurant. After I called the judge and he told me to meet him at the restaurant, he excused himself from the table. We took an empty booth in the main dining room and I handed him the stack of paperwork I had. Over the next several minutes he silently read every page of the warrant packet I handed him. The affidavit and the warrant itself.

Then he looked up at me and said, raise your right hand. Do you swear under penalty of perjury that you believe the facts set forth in this affidavit are the truth to the best of your knowledge? I said, I do. Then he signed the search warrant, said good luck and went back to his dinner. Had this been my first time handing him a search warrant or a search warrant affidavit, I expect he'd have taken a lot longer to read and reread the affidavit and warrant. And even going so far as to ask me any clarifying questions if I wasn't clear in what I'd written, or hadn't anticipated the questions by already providing the answers in what I'd written. Which is one of the reasons why you go to the prosecutor's office first to make sure that it's dialed in before bringing it to the judge.

Now I will admit that reputation can really play a factor in how scrutinizing a judge will be with your affidavit and warrant. Now, I won't name any particular names here, but I once went into the courtroom of a judge that was assigned warrant duty that week, only to find him in the middle of presiding over a jury trial. I asked the bailiff when the next break would be so I could have the judge review my warrant, or to see whether or not I needed to go to a different judge that wasn't in trial. The bailiff looked at the judge, who despite there being a witness in the middle of testimony at that moment, waive for the bailiff to bring him my paperwork. The judge remained on the bench with the trial proceeding while at the same time leafing through my affidavit and warrant. After what seemed like only 90 seconds with the bailiff still standing next to the bench, the bailiff brought me just my affidavit back and said, the judge wants you to sign the affidavit under penalty of perjury.

So I signed it. Bailiff brought it back to the judge and the judge then signed the warrant itself in motion for the bailiff to hand the packet to the court clerk, who was at her desk right there in the courtroom because that's where clerks sit during a jury trial. I heard the thump, thump of two ink stamps and the bailiff handed me back the affidavit I signed with the court's clerk seal on it, and then also the search warrant that the judge signed, also with the clerk seal. I spent literally less than five minutes in that courtroom and walked out with a signed search warrant. All without the jury trial skipping a beat. Now is that how I would handle reviewing a search warrant if I was a superior court judge?

Probably not, but clearly my reputation for writing good paper, coupled with the deputy DA's initials showing it had been reviewed by the DA's office, certainly made that possible. But even if I did intentionally get one over on the judge or left something major out of that affidavit, all that would be rectified when the case went to court. If it wasn't proper the exclusionary rule would apply, if at least I wasn't acting in good faith with my warrant. Regardless of how diligent the judge was at the time, it certainly would get rectified when it finally went to court.

Darlene Chaney asked this question in the Facebook group, "How do cops routinely announce their presence at a residence or scene or possible suspect's home, person of interest or someone they're trying to arrest?" Amongst the few great answers I threw in my 2 cents, which was that it depends on the situation. When serving an arrest or search warrant, there is a knock and notice or knock and announce requirement on the part of the police agency before knocking in the door, which stems from the fourth amendment right to be free from unreasonable search and seizure. You can find state and federal law sections that cover knock and notice requirements before forcing entry into a dwelling. Knocking is certainly part of the job. If it's a high risk arrest warrant, they may use a "surround and call out" tactic, using a PA system or a Bullhorn. This is a trend that law enforcement has been moving toward in the last few years as opposed to forcing entry into the home by knocking down the door with a ram just because it's a little bit safer.

But the routine way that you asked about is something like four loud raps on the door, follow by police department or Sheriff's department. If they're serving an arrest warrant, it would be something along the lines of, "Police department arrest warrant, demand entry." The exact verbiage is going to vary, but the basic idea is that the officers are identifying themselves, explaining that they have a legal right to enter and what the occupants need to do to comply. This helps defend against claims by the occupants later on when they say they didn't open the door because they didn't know who it was or what they wanted.

But that said, there's nothing in the law that says the door you knock on needs to be the same way you enter that building. But that said, when I worked in a part of town near a college, we'd respond to a lot of noise complaint or party calls. I often knocked like this, which inevitably led to an occupant yelling, "Come on in." You wouldn't believe the look on the students' faces as I opened the door in my uniform, finding them in the middle of all sorts of crazy things, usually not legal.

Thank you so much for listening this week. And hey, I need your questions to keep answering for this podcast, so send them to me by going to writersdetective.com/podcast. And I mean that. I mean, you send me a question right now. I know you have one. So anyway, thanks again for listening. Have a great week and write well

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Writer's Detective Bureau

EPISODE LINKS:

Melissa Kreikemeier's Forensic Science and Editing website and blog: flowersandforensics.com

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