Aug. 17, 2018

PC for Writers, Wording for Warrants, Chain of Evidence for Murder Weapons - 004


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Transcript
This week on the Writer's Detective Bureau. What writers need to know about probable cause, the wording for warrants, and chain of evidence for a murder weapon. I'm Adam Richardson, and this is the Writer's Detective Bureau.

Welcome to Episode Number Four of the Writer's Detective Bureau, the podcast dedicated to helping authors and screenwriters write professional quality crime-related fiction.

Before we get into this week's listener's questions, I'd like to wish a big thank you to Guy Alton and Joan Raymond for supporting the show through Patreon. This show would not be possible without the support of listeners like Guy and Joan. thank you so much. If you'd like to support the Writer's Detective Bureau podcast for as little as $2 a month, or to learn more about how you can set up your own Patreon page, go to writersdetective.com/patreon.

What an amazing week this has been! This episode, Episode Four, is the first one I've recorded since launching this podcast, and I've been blown away by your feedback. I honestly wasn't sure how many people would even listen to this, and to be honest, it's weird to sit here all alone in my home office talking into microphone. I kind of just figured I was a high-tech version of the people I normally deal with on the street that talk to themselves.

But you're really out there, so thank you so much for listening, for reviewing the show on iTunes and Stitcher, and for being so kind. Above all, I want to encourage you to send me questions for future episodes. I read every single one, and honestly, I love helping you with getting these questions answered. There are no stupid questions, only questionable podcast hosts. Send in your questions to writersdetective.com/podcast. I promise I do not bite. 
 

 
A few episodes ago, Kelly Ethan asked a series of questions and the last question that she asked was one that I wanted to save for this episode. Kelly, who you can find at kellyethan.com asked, "What's the wording for a warrant?" 

Now before I get into exactly that, I want to give a quick little rundown on what writers need to know about probable cause in two minutes or less.

One of the key things to understand about criminal law in the United States is that it is grounded in the Bill of Rights. The Bill of Rights are the first ten Amendments to the Constitution. So when you hear somebody saying they "Plead the Fifth," that means they're invoking the rights provided to them through the Fifth Amendment to the United States Constitution. When we're talking about probable cause, arrests, searches, and search warrants, or arrest warrants, we're talking about the Fourth Amendment to the United States Constitution, which states that people have the right to be free from unreasonable searches and seizures.

It also goes on to explain that a search warrant can't be issued by a judge unless there's probable cause for doing so. But the Constitution doesn't actually define probable cause, which ultimately was left to the Supreme Court to figure that out for us. And the way that the Supreme Court interpreted the Fourth Amendment was seizure also includes, not just evidence and searching, but also counts as an arrest. So the seizure of a person also falls under the Fourth Amendment's right to be free from unreasonable search and seizure.

So what exactly is probable cause? That's a legal standard for the knowledge and facts that would lead a reasonable person to believe that someone in particular is committing, has committed, or is about to commit a criminal act. So as the officer that claims to have probable cause to make an arrest or a detention, I have to be able to to articulate the facts and circumstances that form the basis for that probable causeProbable cause doesn't mean the person is guilty 100%, but it means that it's probable that any other reasonable person that looked at the circumstances would think that was the case; that this person is probably culpable in this matter.

Probable cause is not the only standard when it comes to dealing with searches. There's a lower standard called reasonable suspicion, where it would be reasonable to believe that the person might be involved in a criminal act, and it's where there's sufficient enough facts for an officer to investigate further by briefly detaining the possible suspect. Probable cause, however is what is required to make an arrest, or to obtain an arrest warrant, or to obtain a search warrant.

Then the ultimate legal standard is beyond a reasonable doubt. I say it's the ultimate legal standard because that's what the prosecution needs to prove in a jury trial in order to get a conviction. So there's a big difference between having sufficient probable cause to arrest somebody and having sufficient evidence to prove that they are guilty beyond a reasonable doubt.

This is the most important thing for a writer to understand when you're telling the story. Often I'm asked, "How soon would a detective arrest a villain?" Let's say they are a murder suspect. As soon as that detective has probable cause, they could make that arrest, but then the right to a speedy trial clock starts to kick in, and the detective is then under pressure to obtain the additional evidence required to prove that case beyond a reasonable doubt.

So very often, the detective will have sufficient probable cause to make the arrest, but they will wait until they have enough evidence to prove it in court, to that beyond a reasonable doubt standard. So there's a certain strategy involved in when the arrest is made. It isn't necessarily the moment that it is possible to arrest them from a legal standpoint, as much as it is the smartest time to arrest a person based on having enough evidence to proceed immediately into the prosecution phase.

Obviously once an arrest is made, the gig is up as far as the suspect knowing that the cops are on to them. So sometimes having the element of surprise, and the ability to do additional investigation without the suspect being aware the police are aware of the crime, or aware of the suspect's culpability, the better. Which leads us back to the first question of this episode. 
 
 

 

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So, the warrant itself, is actually just a court order. It's a piece of paper signed by a judge that says the peace officer, police officer, deputy sheriff, is commanded to either take that person into custody, if it's an arrest warrant, or they're commanded to search the location that's specified on the face of the warrant for the evidence that's listed on the face of the warrant. Very often, the warrant itself is just a single page. The affidavit, however is the application for a search warrant.

The affidavit is essentially the story of the investigation. The way that we write our affidavits in the State of California usually starts with what we jokingly refer to as the hero sheet. We explain to the judge who we are, and when we're forming our affidavit, we refer to ourselves, the person that is swearing to the facts and circumstances that we're in this affidavit, as we are seeking this search warrant. We refer to ourselves as the affiant, or sometimes people will pronounce it as affiant.

So in that hero sheet section of the affidavit at the beginning I explain my training and experience, because later on in the affidavit I'm going to ask the judge to take my expert opinion into account when I sum up the meaning of all those facts and circumstances, and what they mean as I lay out the basis for probable cause.

So once I've explained who I am and what my training and experience looks like, I then explain how law enforcement got involved. This usually starts with the usual call to 9-1-1, or however it was the police got involved. Much of that section of the affidavit may be my relaying what was told to me by the original officer on the scene, or what was written in that original officer's police report.

From there, I will explain the additional investigative steps I have taken as the investigating detective. I then lay out those facts and those circumstances, usually in chronological order. Essentially telling the story of what happened thus far. Then to wrap things up, I explain my opinion of what those facts and circumstances are, and why those facts and circumstances should be considered the basis for probable cause to either issue a warrant for that person's arrest, or issue a search warrant for the location and the items I'm seeking as evidence.

With modern technology we can get a search warrant written in a pretty quick amount of time. But there's also a telephonic search warrant. With a telephonic search warrant, I essentially record a three-way phone call with myself, the prosecutor, and the judge. Then I lay out that same story. I explain who I am, what my training and experience looks like, the facts thus far and what I think all of this means as it relates to the basis for probable cause for my warrant.

If the judge finds that there is sufficient probable cause for a warrant, then he will give the verbal authority for me to sign his name to the face of the warrant, which from a legal standpoint means that that warrant has been issued, and so we can go ahead and serve that warrant. While it's quick to obtain a warrant in that way, it actually incurs more work later because once we've served that warrant, I then have to make a transcription of the phone call, write out a version of that warrant that we talked about on the phone in the formal affidavit and warrant format, and then create an additional copy that is blank [EDIT: blank on the Judge's signature line.] Because when the judge authorized my writing his signature on the face of what is called the Duplicate Original, that is the acting version of the warrant. But the final warrant will be the one that the judge actually physically signs.

So after that warrant has been issued and we serve it, I then have to take the two copies of the warrant that I've written out, the transcription of the phone call, and the recording of the phone call, and deliver it to the judge for him to review before he because signs that warrant [again].

There are some jurisdictions where search warrants, or arrest warrants, are actually written by the prosecutor's office or the prosecutors themselves based upon statements given by law enforcement, but in California the detectives generally are the ones that write the search warrants and the affidavits.

So once I've completed my affidavit and I bring it to the judge, I sign it and I swear under penalty of perjury that the facts contained in that affidavit are true to the best of my knowledge. Then the judge, if he or she agrees that there are sufficient facts and circumstances to form the basis for probable cause, then the judge will sign the face of that warrant. The more complicated a case, obviously the more technical the affidavit and the warrant it is to obtain, so it can be a little bit time consuming.

But the way that the Fourth Amendment is written, the only way you can make an arrest or a search without a warrant is under only a handful of exceptions to the warrant rule, which means writing warrants is a very regular thing for a detective. And we get pretty good at it. So if you're writing a detective protagonist that is really good at their job, a large part of their skill set will be being able to get a warrant quickly.

The typical Hollywood version of police work, is usually that maverick cop that does things his or her own way, but the reality is to be an excellent detective means that you know how to play within the rules. Because that's what we're doing. We're enforcing rules. That's what law enforcement is.

So being great at being a detective means being great at writing affidavits, getting search warrants approved the first time, not having to have a prosecutor or a judge return it to you because you've left stuff out of your affidavit or you came to the judge too early when you did not have sufficient facts and circumstances to illustrate the probable cause.

So I hope that answers your question somewhere in there, Kelly. Thank you so much for submitting that. And again, you can find Kelly at kellyethan.com.

 

 
Our next question was asking if I could walk through and explain the path taken by a typical murder weapon from the time it's found until it eventually shows up in court as evidence.

Generally speaking, detectives will carry a search warrant kit in the trunk of their car. This will essentially be a bag or briefcase that has various types of evidence bags, paperwork such as property receipts, a latent fingerprinting kit, a camera, latex gloves, sharps containers for packaging any kind of sharp objects, such as a needle or a knife. And then tape that is used to seal the bags of evidence.

Those bags of evidence will also be either paper, just like you would find at a grocery store, or used to find at a grocery store, or thick, clear plastic. The reason we have two different types of bags has to do with what kind of evidence we are collecting. If we are collecting anything that is clothing that has some sort of potential biological evidence on there such as blood, we want to make sure that the article of clothing dries out and does not start to mold. But then of course, there are other items of evidence where that's not a concern, and it's just easier to use a plastic bag. And it's up to that detective to maintain his or her own evidence kit and whatever it is they want to keep inside there.
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But generally speaking, that's what they're going to use when they're at the scene to package any evidence that they encounter and want to seize, as well as document the recovery of that evidence, and issue a receipt for that evidence if it's say taken during a search warrant and the owner has a right to have a receipt for any items that are taken by law enforcement. In fact, a copy of that receipt goes along with a search warrant return. This ties in nicely to the previous question.

When we serve a search warrant, let's say I serve a search warrant at a house, and I take a stack of money, or a book or checks or credit cards, or even a kitchen knife, I then provide that receipt for the items that were taken to the home owner, or if they weren't there, I leave a copy of it on the desk or kitchen table, but then that list of items that were seized pursuant to that warrant, goes back to the court for the judge to see.
And that's called a search warrant return. So, it is the face of the warrant that was served, the copy of that that was originally signed by the judge, along with a list of all of the evidence that was seized pursuant to that search warrant. So that's a little bit of tangent. But those are the kind of items that you will find in a search warrant kit.

Now, generally speaking, you take a photograph of the evidence before you seize it, but then once you seize it, you do carefully, obviously being mindful for fingerprints, that kind of thing, if that's an issue, you then place it in an evidence bag that is then sealed with ... You seal it with tape which generally is designed to indicate if there's been any kind of tampering. So it's usually a very thin cello tape. There's various types. The one we use is a very thin red tape that says evidence on it.

And then there's a place for us to sign it with our signature and write the date and time. So that way if anybody opens that bag it will essentially break the tape, so it's proof that something happened to that bag. And a lot of times that does happen. If I'm going to seize a, let's say I seize a knife, and then later on it's opened at the crime lab, then that tape is going to be cut. And then when it's resealed and placed back in after the whatever the lab does for testing, then that lab tech or that CSI investigator will sign that new piece of tape. And often times, there will still be the original tape on there so you see that it was opened twice and that tape was applied twice.

Now, the way the chain of custody works, is once I seal that bag, I'm essentially responsible for it. In most cases, you're going to be transporting, as the detective, you're going to be transporting that evidence to an evidence locker. And it's literally a locker in the sense that once you place that item inside there, you can account for the fact that it's in a locked container, that nobody else other than the evidence technician, which is an employee usually of the police department, who's job is literally to take custody of evidence and then track its whereabouts.

So if I book that knife into custody, where it has my signature as the person claiming it, I then document the fact that I placed it in let's say evidence locker number two. Then, when the evidence technician opens that locker, they then document that they took custody of that piece of evidence from Evidence Locker Number 2, and then either usually they transport it to the evidence room, where it's placed in a bin on a shelf, and that location is then documented. And then later, on when the lab is ready to process that stuff for any kind of scientific testing, then whoever at the lab takes custody of it then fills out that chain of custody form [also called a chain of evidence form.]

So the evidence tech may deliver the item to the lab, or the lab tech may come to retrieve it from the evidence officer, but all of that is logged in a chain of custody form. That is essentially a living history of that evidence from the time that it was seized and found by the original detective. And then ultimately when it comes time for a court appearance, then the district attorney or the defense attorney may obtain a subpoena for that evidence, which then prompts the evidence officer or evidence technician, to deliver that evidence to court. That way it can be presented in court as an exhibit.

If it ever were to be questioned, either side of the legal case could track who had possession of it. Or if it wasn't in a person's possession, if it was in a facility, such as the evidence locker, you can show exactly when the evidence was placed in the locker and then when it was removed. So if you're the detective, you certainly do not want to seize a piece of evidence on a Friday night and then it's late, and you don't want to go back to the station, so you take it home or you leave it in the car over the weekend, and then you book it on Monday. That is is going to be a bad in court when the defense attorney sees that.

As long as you can testify to it's whereabouts, and that it was under your care and control, you should be okay. So when this question was originally asked to me, the question asked about an example where would stopping the car anywhere to fill up gas, for an example, constitute a risk of messing with the chain of evidence? Well, it could be if you left it in an unlocked car and unattended.

Generally speaking, if you're going to be transporting evidence, and you need to stop for gas, hopefully you have a partner with you and that partner can essentially stay with the evidence and not leave it unattended. But generally speaking, you want to make sure you go directly back to the place that you are booking your evidence into.

Again the chain of evidence is, like I mentioned earlier, it's a history of that item and its whereabouts and every person that's listed on that chain of custody form, chain of evidence form, may end up having to testify as to its whereabouts and its condition. 
 

 
I started helping writers back in 2015, and that was when I was introduced to the concept of having a "platform," AKA a blog, and having a "list." More precisely and what I mean by that is a mailing list of fans that I could email. And more importantly it was a list that I could own, and not be beholden to the social media platform du jour that held the keys to my social circle. So fast forward several years and about 1,100 mailing list members later -thank you guys for listening to this- they, "the They" that offered this advice were right about needing to create a mailing list that you can own.

Back then I did what everyone else fumbling through this process did. I joined a mailing list service that offered a free option. And you know, I had my mom sign up so I had more than just me on there, and I just fumbled my way through convincing people that they should sign up one at a time, and that I was offering some sort of value to them.

Eventually I got to a point where my list had a few hundred people on it, and I was getting frustrated with the mailing list service that I was using at the time. The one I was on was really designed for businesses that were selling a product to consumers, and definitely not set up for writers or bloggers trying to foster growing a community with fans.

That was when I discovered ConvertKit*. And if you listen to other podcasts, you may have heard this name before. But the key thing about ConvertKit* is that it was designed for creatives. Writers, bloggers, artists, podcasters. I loved how easy it was to use and that it was really created for people like you and me. I really loved the software.

But to be honest, deciding to pay for a mailing list service rather than using the clunky free one of a different company was really a big decision. Was it going to be worth it? How am I actually going to grow and monetize this list? Am I really committed to turning this question and answer mailing list blog thing into something worth paying for month after month? It seemed daunting, but I made the leap.

I imagine if you haven't made this leap yet, and haven't already built some big mailing list of your own, you're probably feeling the same way about transitioning from a free mailing list service that works just okay, to a service like ConvertKit that is designed precisely for creatives, like fiction writers that want to build buzz for their self-published books. Well ConvertKit has now made making that leap a lot less scary. ConvertKit has introduced Creator Pass*.

Creator Pass* is four courses: Build, Launch, Grow, and Thrive, plus it includes a full year of ConvertKit mailing list service and an awesome online community of coaching and support.

Now a lot of companies claim that they have community and support, but I've never seen a company more committed to that than ConvertKit. The ConvertKit Beginners! group on Facebook is a perfect example of that. Matt Ragland is the ConvertKit employee that runs the beginner's group, and he is always online to help—well it seems like he's always online—even with the most basic things.

Now, I have to admit I've never had to ask for his help because ConvertKit is really intuitive and visual and they offer a ton of how-to videos on their support website. I literally joined the group because I wanted to be involved in the community. I can't say enough how awesome and supportive ConvertKit is as a company.

My wife and I attended the ConvertKit Craft + Commerce Conference they held earlier this year in Boise, Idaho. You're probably wondering what the heck would go on at a conference for a mailing list service, but it was seriously awesome. It was several days worth of learning from people who make their living online through podcasts, YouTube, writing, even hosting LEGO Meetups. The event was really inspiring and it demonstrated how invested ConvertKit is in helping their customers succeed.

We even held our own Writer's Meetup during the conference, and I got to meet some amazing writers that I know I'm going to keep in touch with for years. -Hey guys! Thanks for listening!- So anyway, if you want to join the ConvertKit family*, and make the leap a lot less daunting, you can't beat Creator Pass*. To learn more about the Build, Launch, Grow, and Thrive course plus the full year of ConvertKit service and the online support community, visit writersdetectivebureau.com/creatorpass*. If you're driving right now, the link will be in the show notes. 
 

 
Speaking of the Craft + Commerce Conference and amazing writers, one of the best parts of that trip was catching up with my friend, Danny R. Smith. Danny is a retired Los Angeles Sheriff's Department homicide detective that just released his second novel. It's called Door to a Dark Room, which is available now on Amazon or on his website, dickiefloydnovels.com.

Door to a Dark Room* is the second book in the Dickie Floyd Detective Novel series.
So you'll also want to check out the first novel, A Good Bunch of Men*, which you can get as an ebook right now for 99¢ on Amazon.

Both are fantastic reads! Danny is a great author and a good friend. I'd love it if you check out his books.
For links to his books, you can check out the show notes at writersdetective.com/4.
 

 
Thanks for listening to this episode of the Writer's Detective Bureau podcast. If you enjoyed this episode, please be sure to subscribe. If you belong to a writer's group in person or online, I would love it if you'd share this podcast. This podcast is created for you so don't be shy and submit your crime fiction questions or just say "Hello" at writersdetective.com/podcast.

​Thanks again for listening. Write well.