PostHeaderIcon Searches: They Broke My Door – Is That Legal?

We’ve discussed the issue of probable cause (PC) many times, and we all know it’s one of the very few things that remains consistent in law enforcement. PC is a “gotta have it” sort of thing when making certain arrests and obtaining search warrants.

One more time – Probable Cause is the existence of facts (not mere suspicion) that will satisfy an officer of ordinary caution that a crime has been, or is being committed…and the item to be searched for is reasonably connected to the crime in question. Oh, and that evidence of the crime can be found at/in a certain place (PC for a search warrant).

Okay, with that reminder in place, let’s take a look at a few more rules regarding search and seizure.

1) Information used to obtain a search warrant absolutely must be current information. “Stale” information is not a valid basis for a search. The evidence could have been moved. Suspects might have moved on. Other people may now be inside the residence.

2) An informant’s name need not be revealed in the body of the search warrant or affidavit. That’s sort of why they call them “confidential” informants.

3) Search warrants must be served (executed) promptly. Not a week or two after the judge signs it. Actually, delays of three or four days have rendered searches unreasonable in the eyes of the courts.

4) Police officers must knock and announce their presence when serving a search warrant. However, there’s no written rule/law that states a required amount of wait time before using a battering ram to gain entry. But, a good rule of thumb is to wait a few seconds, long enough for a reasonable person to open the door. Any longer allows the suspect enough time to destroy evidence.

5) Officers may obtain “no knock” warrants if there’s a threat of danger to officers should they knock and announce their presence.

6) The law says that officers may damage private property while entering, as long as the damage was necessary under the circumstances (breaking doors and windows, etc.). And guess who’s stuck with the bill? Yep, the suspect. However, some jurisdictions have policies in place that require the municipality to cover the cost of repairs.

7) Some locales permit officers to submit/apply for search warrants by telephone. Normally, though, this is only done when it is impracticable or impossible for the officer to apply in person—emergency situations.

8) Members of the media are not allowed to accompany officers into a private home during the execution of a search warrant.

9) Officers do not need a search warrant when conducting a search of a suspect’s personal property during the booking process at the jail. This includes any closed container found in the suspect’s pockets.

10) Officers must limit their searches of electronic devices to only the files named on the search warrant.

11) Evidence seized during an improper search may not be used. However, if the officer relies on a warrant issued by the court that was later found to be accidentally inaccurate (at no fault of the officer), it is possible that a court would allow the evidence to be introduced.

12) Evidence seized in violation of the 4th Amendment (protection against illegal search and seizure) may not be used in criminal trials. However, that very same evidence may be, and is, used in other court proceedings, such as parole violations/revocations.

13 Responses to “Searches: They Broke My Door – Is That Legal?”

  • Bob Mueller says:

    Charleston SC had a special squad in place to repair raid/warrant damage. And often, the suspect isn’t on the lease or rental agreement, and the person who is doesn’t have the funds to cover the damage. That leaves the landlord holding the bag.

    It seems like there should be a better solution, but I’m not sure what it is.

  • Lee Lofland says:

    Normally, officers establish a pattern of illegal activity before obtaining a search warrant. Therefore, it’s not a one- or two-time occurrence. The homeowner/renter is normally aware of the illegal activity.

    There are a couple of quick-fixes to the repair situation. Residents could stop breaking the law and/or allowing bad guys to hang out and do business from their homes, which is often the case. Also, the owner/landlord could stop renting to drug dealers. There are laws in place, in most areas, that allow police to seize property from a landlord if it can be proven that he/she is aware of illegal activity taking place at their rental property. We seized a few and believe me, it doesn’t take long to see a lot of backgrounds checks taking place, thugs forced to move, etc.

    Of course, there’s always the instance of a wanted person hiding out at an unsuspecting relative’s (or friend’s) home. That’s a different story, one where I believe the resident’s should receive assistance for the repairs.

  • Sally Carpenter says:

    Item No. 8 sort of destroys the whole premise of the “Castle” TV show. He’s not suppose to follow Beckett when she serves a warrant!

  • Lee Lofland says:

    Actually, Castle is sort of serving as an “agent” of the police. He’s not media.

  • Finn Jackson says:

    Great post, as usual, but I have to respectfully disagree with number ten–electronic evidence.

    For the last ten years of my special agent career I worked as a forensic computer specialist, which means I went out on dozens and dozens of warrants, and seized hundreds of computers. There was very specific language used in every warrant relative to digital evidence, but it never addressed file types or file names, because there was no way to know in advance what a file containing pertinent evidence might be labeled. Rarely was a file named smoking_gun.doc, or a kiddie porn file named KP.jpg…in fact, many, many graphics files had their extensions changed to .txt, or .exe, expressly to camouflage the true nature of the file.

    If there was PC indicating that evidence might be stored digitally, we were allowed to seize ANYTHING that might reasonably contain such files, including computers, external drives, flash drives, CDs, smart phones–sometimes even game consoles or DVRs. When searching large businesses or electronically sophisticated residences, I’m sure you can imagine the sheer volume of evidence we came away with.

  • Lee Lofland says:

    Thanks, Finn. I’m just passing along info from the 2012 LEO Pocket Manual and from the Department of Justice.

    2012 LEO Manual: Search and Seizure – “When searching a computer or electronic device, be careful not to stray beyond the files that the warrant, or warrant exception, authorizes you to examine.” The author then refers to the following from the DOJ’s manual titled Searching and Seizing Computers And Obtaining Electronic Evidence In Criminal Investigations (Executive Office For U.S. Attorneys).

    – The Tenth Circuit has refused to allow such exhaustive searches of a computer’s hard drive in the absence of a warrant or some exception to the warrant requirement. See United States v.Carey, 172 F.3d 1268, 1273-75 (10th Cir. 1999) (ruling that agent exceeded
    the scope of a warrant to search for evidence of drug sales when he “abandoned that search” and instead searched for evidence of child pornography for five hours). In particular, the Tenth Circuit cautioned in a later case that “[b]ecause computers can hold so much information touching on many different areas of a person’s life, there is greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001).

  • #5 is very interesting, and very helpful to my current WIP! Thanks for posting, Lee!

  • Mary Brookman says:

    Lee,
    Thanks again for such a informative post.

  • Jodie says:

    Lee, I love these kind of posts. I recently graduated from my local citizen’s police academy and have decided to write a police procedural. So I’m gathering info about police procedure from any place I can get it. (I have your book, too. One of these days I might actually meet you in person and get it signed.)

    Regarding confidential informants. Do you ever have to disclose their identity to a judge, even though it’s not on the warrant?

  • Lee Lofland says:

    Jodie, I have one thing to say…attend the WRITERS’ POLICE ACADEMY!!! A citizens police academy is nothing like attending the WPA. Not even close.

    Okay, to answer your question. Normally, officers do not have to reveal the identity of the CI (confidential informant). Does it happen at times? Yes. But it’s rare.

  • Lynda says:

    Okay. I really have to get to the Writers’ Police Academy. This was a great post, Lee. As usual, you gave me more plot ideas and twists than I can ever use. Keep it coming!

  • LabbRatt says:

    Sometimes on TV we see cops outside a door saying “Did you hear someone yell ‘Help, Police!’?” “Yes.” [breaks down door] Assuming they did not really hear anyone, how likely are they to get away with this?

  • Lee Lofland says:

    LabbRatt – Totally a TV thing. It would be unethical and illegal to do something like that.

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