June 16, 2021

Search Warrant Walk-Through, Pinging a Missing Person's Phone, and California Arson Investigations


Face page of a search warrant

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Transcript

This week on the writer's detective bureau search warrant walked through pinging, a missing persons phone in California, arson investigations. I'm Adam Richardson. And this is the writer's detective bureau. Welcome to episode 100 hundred 10 of the writer's detective bureau. The podcast dedicated to helping authors and screenwriters write professional quality crime related fiction. And this week I'm walking you through how a detective gets a search warrant.

Whether phone records can be obtained in a missing person investigation, and whether police officers get involved in arson investigations in California. But first I need to thank gold shield patrons, Debra Dunbar from Debra Dunbar com CC Jameson from CC Jameson com. Larry Keeton Vicki Tharp of Vicki tharp.com. Chrysann Larry darter, Natalie Barrelli Craig Kingsman of Craig Kingsman dot com. Lynn Vitale,

Marco Carocari of Marco Carocari dot com. Terry Swann, Rob Kerns of nightfall fall press.com. Mariah stone of Mariah stone.com and Aurora Jacobson for their support along with my Silver Cufflink and Coffee Club patrons, you can find links to all of the patrons supporting this episode in the show notes at writers, detective.com forward slash 1 1 0, and to learn more about using Patrion to grow your author business,

or to support this podcast, check out writers, detective.com board slash Patreon, P a T R E O N. Well, I am back from a restful vacation in Costa Rica. My first international travel, since the pandemic started and I am a few weeks away from releasing my new crime fiction guns online course. Now you likely know already that I am not a big gun guy being a middle-aged mutant ninja seal is not my brand making you feel welcome and safe to ask any question without fear of being ridiculed is my brand.

And that is why I'm creating the crime fiction guns course writing scenes that include any kind of gun can be a real challenge. When you don't know what you don't know, this course will answer the questions you have about handguns rifles, shotguns, and their various forms of ammunition and how we use all that stuff. As evidence. If you are a gun owner or served in the military,

this course is going to be way too basic for you. So this is not the course for you, if you aren't sure about the difference between a rifle and a shotgun, this is the course for you. We will cover how each weapon system works from the inside out the nomenclature of the stuff you should know. And none of the really, you know,

nerdy gun stuff you don't need to bother with. So if you'd like to get on the list for the crime fiction, guns online course and secure a $10 off coupon, when the course launches, just go to crime fiction, guns.com and enter the best email address for me to reach you. When the course goes live, Jacobson writes, dear detective Richardson.

Thank you for your excellent podcast. Thank you so much, Aurora. I've learned so much. I have a question about obtaining search warrants. I know a little about it, but I'm not sure I understand the process after evidence has been gathered. Does the officer submit a form to his supervisor first? What happens after that? Can the supervisor okay. The warrant or does it have to go up the chain and where does the warrant go from there?

Thank you, Aurora Jacobson. Great questions, Aurora. But first let me thank you for becoming a gold shield patron of the bureau. I hope you can make it to a future patron only live. So if I miss anything with the answer I'm about to give, or you have up questions by all means the patron only Q and a is the place to get your answer in real time.

Okay. So great questions. But let me start by pointing out that search warrants might be obtained before gathering evidence or as a means of gathering evidence. Essentially, an officer or detective has to figure out if she or he has enough facts, which doesn't necessarily mean tangible evidence, but enough facts to articulate to a judge that they have probable cause to search this location for evidence of a crime.

And it's going to be specific evidence as well. So let's come up with a simple example of this. Our murder happens as the result of a drive by shooting and someone calls 9 1 1 to report it. The anonymous caller tells the nine 11 dispatcher that the shooter was in a red Honda accord with the license plate one, ABC 2, 3, 4, and it was last seen northbound in the 100 block of main street.

The dispatcher runs the license plate in the DMP system. And lo and behold, it's registered to the last of guy. First of bad, with an address of 200 north main street. The dispatcher does more record searches and learns that Mr bad guy has prior felony arrests for firearm violations and is a known gang member. Police officers respond to the scene of the shooting and to Mr.

Bad guy's house at 200 north main street, the victim, unfortunately, is dead. And the red Honda with a license plate one, ABC 2, 3, 4 is parked in front of the residence at 200 north main street. No one's in the car, but the officers can see a spent shell casing inside the car. Okay. So now you are the detective handling the case of Aurora.

What evidence have we collected so far? Nothing. Right. We can see evidence that we want to collect inside the car, and I'm not going to get into whether we can search the car with her without a search warrant. That's a whole other topic for podcast, but we definitely want to look for more evidence like the gun inside the residence. And also look for our suspect who may or may not be Mr.

Bad guy right inside the residence. So our goal is to get inside that residence and we need to use a search warrant in order to look for the evidence of this murder inside that residence. But we don't know anything for certain, right there sure is probable cause this car is related to the murder and that something of evidence is inside the house. That's what we have at this point,

right? So even without evidence in hand, we have articulable facts, meaning specific individual facts that we can articulate the meaning of that in totality, as we put them all together, amount to probable cause probable cause to believe that evidence of the crime is inside this residence. So at this point, all of these articulable facts are running around inside your head.

Just like when you have a story idea, but you haven't put them down on paper or down on the scream in Scrivener word, final draft Atticus. So like any writer we sit down to write, usually we write an affidavit in support of a search warrant and affidavit is essentially the application. So you're applying to the judge for a warrant. The warrant itself is the court order that says go forth and conquer.

I grant you the authority to go to this address and look for these items of evidence. That's what the search warrant is. But the affidavit, the application is where you tell the judge the story of what happened and what you've learned, meaning spelling out those facts and why all of that amounts to sufficient probable cause to search for these specific items of evidence.

So you as the detective type up the affidavit and also the search warrant itself, even though the warrants issued by the judge, you're still doing all the typing, the judges, grades your work and signs of the warrant. But yes, to get back to your question, Aurora, before we get to that point, your supervisor will likely review the affidavit and search warrant that you've written as will an attorney from the prosecutor's office.

And what they're doing is the reviewing the affidavit and warrant to make sure that you really did spell out all of the probable causes, that you didn't miss anything as well as checking for errors. And that you're also following the relevant legal procedures, which we don't need to dwell on right now. So once your boss and the prosecutor have given the, okay on your warrant and affidavit,

you are the one taking it to the judge because you are the one that is about to raise your right hand and swear that everything in that affidavit is the truth to the best of your knowledge. Normally you'd go to the courthouse, meet with whichever judge is handling warrants that day or that week in the judges chambers. Now you may have to wait while the judges on the bench,

or you may get directed to another courtroom where a judge is able to see you without delay. All of this obviously varies by jurisdiction, but you get the idea and it's something you can play with your story. So in you go to the chambers and like I jokingly said a minute ago, you hand in your homework to get graded and you sit there,

you sit there as the judge reads your entire affidavit and the warrant you prepared, then you swear that the facts in the affidavit are true. And if the judge agrees that you have sufficient probable cause he or she will sign the search warrant. And as soon as the ink of that signature hits the page, the warrant is valid, but it's only valid for 10 days.

So from there, the warrant is filed with the court clerk's office. That could be either the has staff that handles that. Or you may be the one who has to go hand, carry the warrant, the signed warrant down to the court clerk's office. But then once it's at the corks clerk's office, it gets the official stamp and all the other bureaucratic things that legal paperwork goes through.

But then after you serve your warrant and you collect your evidence, like we've gone to Mr. Bad guy's house, we've kicked the door in or whatever. And, you know, we found the gun, you then fill out another form called a search warrant return. That is a company by a list of all of the evidence you collected. Essentially it reports back to the court,

the result of the search warrant service. So you then take that search warrant return and that evidence list and bring that back to the court. And that gets filed along with your original search warrant. Now that is how search warrants are typically obtained. Some jurisdictions require the prosecutor to write the affidavit and warrant, not the detective. The one example of this that I'm aware of is the city of New York.

The detective works with the deputy da on putting together the warrant and affidavit, but the deputy da is the one going to get the warrant signed, not the detective. So just in case your story's set in the big apple, keep that in mind. Now I said that going into the chambers to get your warrants signed is the typical way it happens. I've obtained warrants,

many, many warrants, telephonically, meaning calling up the judge and the deputy da on a conference call and recording it. And I've also emailed the documents to the judge after calling him in the middle of the night, heck I've interrupted a judge's extended family dinner at a Chinese restaurant once where he excused himself from the big table. And then we sat in a booth on the other side of the restaurant.

One of the ways you can measure how good a detective is at his or her job is by how well they write their warrants and affidavits. It's a learning process for sure, but your warrant writing skills will eventually earn you a reputation. If you're good at them. While if you're horrible at them, it'll earn your reputation too. And you probably want to be a detective for very long,

but it didn't take me long to get to a point where my detective Sergeant really only read my warrants and affidavits just to get up to speed on an investigation rather than pulling out the red pen to correct anything. And it got to a point where one of my sergeants only read my stuff after they were already signed by the judge. Same thing goes with the deputy DA's and judges.

If you're in a smaller environment, when it comes to reading your warrants, if they know you're dialed in on your warrant writing, especially if you've been a detective for a few years and they've read many of your warrants, the review process, while still diligent seems to happen a little bit quicker. I actually talked about probable cause and telephonic search warrants, way back in episode four of the podcast.

So check out writers, detective.com forward slash four and click on transcripts to see what the face page of a typical search warrant.

Actually it looks like in fact, you know what? I'm going to add that picture to this episode's show notes page as well. So writers, detective.com forward slash 1, 1 0, but it's worth checking out episode four Aurora, if you haven't gone back that far in the back list to check out that episode and learn a little question comes from Elena Clark,

and you can find Elena's work at EAP Clark, author.net, and a later rights question about searching for a missing person. My characters are searching for a friend who's gone missing. This is in California. Her boyfriend is an FBI agent based in San Francisco. He wants to get her cell phone and text records. Two questions. One, my understanding is that you need a court order to get phone and text records.

Is that true? In two, he wants to report her missing to the local police department where she lives, which is Monterey California in order to get the ball rolling regarding phone records and so on. Is that the correct order of events? Oh, in third question, how long is that likely to take the missing friend has a history of disappearing, but now they're worried because she's under pressure from someone else and may be armed.

Great questions, Elena. And there's a lot to unpack here. So let's start real quick with a bit of interesting trivia about California law enforcement that relates directly to your scenario cops in California, whether that means a police officer, a deputy sheriff, or a California highway patrol officer all hold the same legal title of peace officer. So being a peace officer means I'm sworn to investigate and enforce laws of the state of California.

And I have peace officer powers of arrest, which differs slightly from a citizens' powers of arrest. The big difference being that I can arrest someone for a felony based upon probable cause. Even if I didn't see that person commit the felony, whereas the citizen can only make a citizen's arrest for crimes that they witnessed firsthand. So hope that makes sense. Okay.

So here's the trivia part, FBI, special agents, as you might guess, are sworn to enforce federal law, just like I'm sworn to enforce California state law. But here's the thing in California, FBI, special agents do not have California peace officer status, meaning they don't have California peace officer powers of arrest for state level crimes. Many states in the U S will grant state level peace officer powers to FBI special agents,

but California is not one of those states. So why does this matter? Because as far as your scenario goes, Elena, your FBI agent character barring any nexus to a federal crime has no legal authority to dig into this case. Now, if the agent suspects that this is a kidnapping, especially one that crosses state lines, then that's not an issue.

But as it stands in your scenario, your FBI character will be reporting his girlfriend missing to the police. Just like any other citizen would for starters, yes, the FBI agent boyfriend would report his girlfriend missing to the local police. So in this case, it sounds like Monterrey police would be the likely agency. Now that said he can report her missing to any police agency.

And they can't refuse to take the report, but making the report to the agency that handles the area where she disappeared from is the fastest way to get the investigative ball rolling. As for phone records, you do need to get a court order, but not right away. The feds passed the communications for law enforcement act, which we abbreviate as Kaleah C a L EA originally back in 1994,

but it's been revamped several times since then most recently was 2015. And to quote the FBI's website, Kaleah was intended to strike and maintain a balance between three competing national priorities, the public's right to privacy, the promotion of innovation and the communication industry's competitiveness and preservation of law. Enforcement's ability to conduct electronic surveillance by mandating industries, compliance with certain technical requirements under California law.

We can see what our clear requirements are by looking at California penal code section 1546. Most of Calias provisions have to do with getting a court order, which includes search warrants and wiretap orders for crimes, but a missing persons case. Isn't a criminal investigation usually. And certainly not until we find any signs of foul play. So in order for the Monterey police to get phone records,

and I'm guessing they're really looking to ping the location of the missing woman's phone, they need to show one of two things, either some sort of probable cause that a crime was committed, which we don't have, right? Or quote, if the government entity in good faith believes that an emergency involving danger of death or serious bodily injury to any person requires access to the electronic device information and quote.

So Monterey PD needs to show why they believe the girl's life is in danger or someone related because it says any person, obviously, if this is the case time is of the essence. So let's say the last contact with the girl was a text to her FBI boyfriend that simply said help. That might be enough to believe that she's in danger of death or GBI pretend that's what we're working with for a minute.

Monterey PD would contact the girl's phone company, which they determined based upon her phone number and get a copy of the phone companies. Exigent circumstances, records request form. It's usually a single sheet of paper or PDF nowadays. And the Monterey PD officer or detective would identify the target, meaning the victim's phone number, check the boxes for the records they're requesting.

So location info of the phone and subscriber info to confirm they're pinging the correct phone. And then the officer or detective would fill in their own official contact info. Since the goal is locating the girl, they'd start with pinging the phone, meaning using GPS from the phone or triangulating the location of the phone by the signal info sent to and from the nearest cell phone towers.

And they would get this info rather quickly. We're talking usually in under a half an hour from filling in that form and sending it to the phone company. Now they would be hard pressed to get any kind of text or call data info at this stage. So I doubt the officer would ask for it, knowing that to do so would be premature. And then once the phone company,

once they confirm the officer is who they say they are, they would then start pinging the phone and providing that info to the officer. But here's the thing within three court bays of obtaining that information, that officer needs to obtain a warrant, a court order, or quote, a motion seeking approval of the emergency disclosures that shall set forth the facts, giving rise to the emergency.

So you still have to do the paperwork in an emergency. You just do it after the fact. And the last one of those three, that motion seeking approval is what the officer would draw up as an affidavit and present to a judge. Once the judge basically reads the story of what happened, it determines that yes, there were facts that appropriately led the officer in good faith to believe that the girl was in grave danger,

then that signed motion would be sent back to the phone company. And then after that, within 10 days, the girl would be notified by the police department, that her phone was pinged as a result of this missing person investigation. It may actually be notified by the phone company. And if you wanted to prevent that from happening, let's say this was part,

let's say it turned into a murder investigation and you don't want any notifications to occur. You would actually have to get another court order to delay that notification. That's a whole other topic though. Okay. So that's how things would normally go, but you've created some extenuating circumstances here, Elena, right? So some of the things working against getting those phone records are that she's voluntarily disappeared before.

Like I said before, there's no crime in voluntarily disappearing. People do it all the time. In fact, let's shift the paradigm here. What if our FBI special agent protagonist is an unreliable narrator? What if he's unbeknownst to the reader? Actually our antagonist, if this was a story about domestic violence and the girl finally mustered up the courage to leave him,

wouldn't being found, put her in more grave danger. I know I'm playing devil's advocate here, but it's to illustrate my last point about missing persons cases, especially ones where the missing person is an adult and they aren't considered at risk. The last point being that even if the police get the ping and they find the girl, the reporting party, in his case,

the boyfriend is not entitled to learn the whereabouts of the missing person in this kind of scenario. The police can confirm that they found her and that she's safe, but that's it, it would then be up to the formerly missing person to decide on whether to make contact with the reporting party. Lastly, I'm not really sure what you meant about someone being armed.

I'm assuming that the person is pressuring that is pressuring. The girl is armed, but I'm not really clear on that. So if the FBI boyfriend had that kind of info, then it would certainly help bolster the immediate threat to life argument and possibly be enough to treat the girl's disappearance as a likely kidnapping. But that would have to be clearly articulated and not just speculation or a swag,

which is our acronym for a scientific wild ass. Guess if you want to do a deeper dive into the research on missing person, investigative protocols, check out writers, detective.com forward slash missing to access the official missing persons, investigations, guidelines, and curriculum that we use here in California, just as a warning, it's an 84 page PDF. So don't just click the link in hit print.

And if you really want to nerd out on the legal stuff and read what California law enforcement can and can't do with any kind of electronic communications devices, you can read the entire electronic communications privacy act by going to writers, detective.com/c a L E a my dear friend Lewis, AKA lo lo page of Lolo page.com writes Adam in California. How much do the police officers get involved in structural or wild-land arson investigations?

I know in some states the state fire Marshal is involved as part of the fire investigation task force teams in California. Do police officers or state troopers serve on arson investigation, task force teams within city fire departments or wild land fire investigations. Thank you. Well, first of all, happy belated birthday, Lois and congrats on releasing Alaska Inferno. The second book in your wildfire book series,

I met Lewis, AKA Lolo in person at the 20 books Vegas conference in 2019, just before she released her first book. And I can't wait, or I should say the first wildlife wildfire romance book, but anyway, I can not wait to catch up with her again at 20 books, Vegas. And speaking of which it is happening at the Bally's casino on the world,

famous Las Vegas strip this year, November 8th through the 12th, and the 12th is going to be different. This year. As 20 books is doing an author sales in signing day from 10:00 AM to 4:00 PM. That will be open to the public. And I know that Lolo page will have a table and be signing books. So if you want to see which authors will be selling and signing books alongside Lolo,

there's a Facebook group for the event, which you can find by going to writers, detective.com forward slash Vegas, 2021. So Vegas 2 0 2 1, and I'm 95% sure that the Sarge Patrick O'Donnell of the cops and writers podcast will be hosting the realistic police procedures panel again at 20 books Vegas. And I'll be there to cover his six. So if you're going to attend 20 books Vegas this year,

come say hi, just like Lois did. And we assembled quite a fun and welcoming crew. Last time that you, the listener here are here by cordially and vital invited to join. Can you tell them I'm getting excited? It is so much fun, and there are quite a few of you that are going this year that I can not wait to meet in person.

So I'm really stoked. I, I have to be honest. I am totally over Vegas. I've been there enough for work and fun that it's just not my thing anymore, but 20 books, 20 books, Vegas. That is the exception. And I cannot wait. All right, enough about that. I should probably get back to answering Lolo's question.

Okay. So police officers getting involved in arson investigations in California. Got it. Okay. Well, it's different from one agency to the next where I work, our fire department has arson investigators. So we will get involved for any aspects of the crime that isn't the arson part, our fire departments, arson investigators, our firefighters that then attend a modified police academy to get certified as California peace officers.

So those arson investigators do their own investigations, but if there's a homicide aspect to it, then we team up with them. They are the subject matter experts on all things arson, but then we get involved for the homicide aspect and coordinate all the interviews and that kind of stuff. Now that said, it varies widely from jurisdiction to jurisdiction. I know of at least one county where the Sheriff's department's bomb squad is also the arson investigation squad for the unincorporated areas of that county.

So those are Sheriff's deputies that are cross trained and certified as arson investigators. So it really depends on where you set your story as to what the arson investigation team is going to look like. The state fire Marshall here in California is part of Cal fire, the statewide fire department that handles rural areas that don't have their own fire departments. So Cal fire would handle any arson investigations that aren't local or fed land.

There are some exceptions to that, but that has to do with certain counties. I think there are like seven of them that have their own department of forestry before Cal fire came into existence. So those counties are kind of grandfathered in and get the money from Cal fire as a contract, but they handle all the calls and investigations in what would otherwise be Cal fire counties.

So that's way more detailed and into the weeds in boring than you ever needed to know, but you asked. So I hope that helps. And thank you so much for listening this week. This show is powered by your questions. So send them to me by going to writers, detective.com forward slash podcast. Thanks again for listening. Have a great week,