Sunday, December 8, 2013

Warrants - Information for Writers

_________________________________________    

Alcatraz Escape Cell
 (Photo credit: derekskey)
“He might have read about someone being a drug mule and swallowing deflated balloons with cocaine in them. Same scenario. He could have made the leap. If he had breaded the diamonds, it would have created issues with the fourth amendment and due process. If we really thought he had breaded them, we’d have to arrest him and hold him long enough for his natural due process to occur. Believe me, that search is no fun.” I grimaced.
    “Believe you? You’ve searched someone’s feces before?” Striker’s lips curled in disgust.
                                                 ~ Missing Lynx

* This blog is based on an interview with a Virginia police officer. The officer has asked that his name and
   image be withheld for his privacy.


Arrest Warrant

* In order for an arrest to be effected there must be probable cause and an arrest warrant
   (when an officer is not involved in an immediate case).
* The warrant is issued by a magistrate based on the affidavit from the police. An affidavit is simply a 
   declaration made under oath.
* According to the 4th amendment the arrest warrant must particularly describe the person who is to 
English: Double locking police handcuffs appli...
 (Photo credit: Wikipedia)
   be seized. Without the description the warrant is
   invalid.
* Mittimus - is a writ to convey a person to jail

Video Quick Study (2:43) Attempt to arrest a juvenile
                                         without a proper warrant
Video Quick Study  (1:54) Warrant serving does not always go well.
Video Quick Study (1:45) Doing a warrant sweep.


* Bench Warrant - 
  ~ Allow for the immediate on-sight arrest of a person
  ~ Usually for contempt of court where someone failed to come to a hearing.
  ~ Issued by judges or magistrates
  ~ Cases can be criminal or civil in nature

English: Bench Warrant for Sam Jain's arrest.
English: Bench Warrant for Sam Jain's arrest. (Photo credit: Wikipedia)

*Outstanding Arrest Warrant - is a warrant that has not been served.
  

English: Images of the 1990 arrest warrant iss...
 (Photo credit: Wikipedia)


Warrantless Arrests - 

So, if a warrant is required to make an arrest, why are police officers handcuffing folks and taking them away without the proper procedures?

London August 12 2013 004 Police Handcuffs
 (Photo credit: David Holt London)
Officers can arrest an individual if
* They are hurting themselves or others
* Causing damage to property
* Taking property (causing loss)
* Offending public decency (exposure, drunkenness, etc)
* Unlawful obstruction say of the highway for example.
* To protect someone, such as a child or other vulnerable
   person who is being threatened
* If the officer thinks that the person will disappear and not
   cooperate if they wait for an arrest warrant to be issued.
* To allow for quick investigation of a law that is believed to
   have taken place.

The officer will take the suspect to the magistrate and will present their understanding of the situation, the suspect will be allowed to have their say. If there is enough probable cause, the magistrate will issue the warrant at that time. 

The magistrate will consider the officer's understanding of which crime has been committed and either accept that charge, upgrade the charge, or downgrade the charge.


Search warrant - 

The capacity to search and/or seize items from a person, car, or building is based on the fourth amendment.
Without a warrant the officers must have permission to search.
Video Quick Study (2:34) Lawyer explains search warrants


THREE WAYS TO GAIN A SEARCH
* Exigent Circumstances (emergency circumstances) mean a search warrant is not required. 
   ~ There is no definition for this.
   ~ Clear evidence of probable cause
   ~ Likelihood of evidence destruction
      Video Quick Study (3:23) Further explains this concept
* Search Warrant
   Video Quick Study (5:21) SWAT team breaking in on a search warrant
   Video Quick Study (2:08) No search warrant means that permission is required before an officer
                                           can search
   Video Quick Study (2:25) Explains about fourth amendment and warrants
   Video Quick Study (1:33) Drug dogs cannot be brought onto a property without a search warrant.
* Permission
   Video Quick Study (5:24) Lawyer addresses tactics used by police to get a citizen to consent to a search.
English: Dutch police handcuffs Nederlands: Ne...
 (Photo credit: Wikipedia)
Officers can stop and frisk if they believe that a person has
   committed or is about to commit a crime. (Terry v. Ohio, 1968)
   NOTE: frisk and search have different legal definitions.
   They must have probable cause such as
   ~ plain view
      Video Quick Study (3:29) plain view explained.
   ~ plain touch - so for example if they come across drugs or stolen
      property while patting someone down for weapons.
      Other than that they need a warrant -  legal order signed by a 
      judge.
* Once your character is arrested - they have the right to do a
    search of you AND around you like your car.
    If you are in your home, they can search the room you are in. (If
    you are standing in the kitchen, they can
    search that room but not your basement or bedroom.)
   Video Quick Study (3:29)
* The warrant specifies what they are looking for  - so if they are
   looking for a television set, the officers
   cannot look inside of a jewelry box. BUT if they went in to look
   for a TV and they come upon cocaine scales and drugs that are in
   plain view then that is a different matter.                                       


Do you want to see this article in action?
Read MINE 




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12 comments:

  1. This is great, Fiona! It's one thing to hear "you can refuse a search if they don't have a warrant", and quite another to have this much info all in one place! In the SWAT video, there was a puppy in the (now severely damaged) house, and it made me wonder about that. They tear the house up and arrest the occupants. Presumably minors are taken in by Social Services, but what about pets? And the now derelict house? Talk about hosing the property values! And what if the house belongs to some hapless landlord who wasn't involved in any crime? All that property damage and it's unlikely that the criminals have anything to sue them for.

    The last video quick study link didn't work, unfortunately. I wanted to see that one!
    Thanks for making all this FUN!

    ReplyDelete
  2. Thanks, Andrea!

    I fixed the video link and added a few more in for your learning pleasure.
    What great questions about what happens after a raid. Children, pets, property. Looks like an upcoming blog :)

    But first - we're learning about maggots. I know you're thrilled.

    Cheers!
    Fiona

    ReplyDelete
  3. Hey, Fiona! I noticed on the sample warrant that there is a check box called "information". Does that mean they can arrest people just to talk to them? Is that for when we hear about someone "wanted for questioning"? That seems odd to me, because you could be "wanted for questioning" and have no clue until they find you. That would suck to be on your way to the airport for a scheduled vacation, and get arrested because you were "wanted for questioning", and now it looks like you're trying to flee!

    ReplyDelete
    Replies
    1. If you were just wanted for questioning, they would not issue an arrest warrant. The officer would have had to present enough information for your arrest to the magistrate. This includes evidence, eye witness testimony, etc. There must be enough evidence to believe that the case would end up in court and be successfully tried.

      I am interviewing an officer later this week. I will ask him specifically what "information" entails. I have a good guess - but that's not what we do here. We want to get it right. So be patient, and I'll be back with an answer.

      Delete
  4. Let me take a stab at this very intelligent question. I'm not a lawyer, but I served plenty of warrants as a deputy sheriff and then spent twenty-years covering the criminal courts as a radio and TV reporter.

    "Wanted for questioning" is a misnomer made popular by the media and others who don't parse their words carefully. It doesn't mean the same thing as "wanted for murder." Fiona is correct; arrests aren't made just so cops can question someone. There must be evidence of wrongdoing. Arrests require probable cause, essentially information that would lead a reasonable person to the belief that a crime has been committed and the person to be arrested committed it.

    The "information" check box on the warrant, however, merely indicates the charge was filed by a prosecutor (in this case the United States Attorney)and doesn't result from action by a grand jury (called an indictment) or from internal court system documents like a probation violation report.

    By the way, hopefully you'll hear "wanted for questioning" used less as the media embraces the term, "person of interest." Both mean basically the same thing; the cops want to talk to someone they think has value to their case, either as a significant witness or, more likely, as the perpetrator.

    ReplyDelete
  5. Thanks so much Doug!

    For my readers who don't know Doug Cummings, he is the author of the Reno McCarthy and the Harry Cork crime novels. His most recent book is Easy Evil. Go to the Interview tab at the top pf this blog and scroll down to his interview entitled "Easy Evil" to learn more about Doug and to find links to his books.

    Cheers,
    Fiona

    ReplyDelete
  6. Thank you!! I am seeing "person of interest" more in the media. Also, after reading this article, I had encountered information about detaining someone as a material witness, and thought the "information" box above might have indicated that, but I'm guessing material witnesses are merely "detained" as opposed to "arrested". Not knowing the precise vocabulary can lead to all sorts of silly mistakes.

    People also forget that "arrested" doesn't mean "guilty". I was alarmed when my state started kicking around the idea of making people arrested for DUI get ignition interlocks. Uh, hello!? Wait until they're found guilty!
    Thanks, Doug and Fiona! If a person is armed with such information before they start writing, they can avoid all sorts of embarrassing blunders!

    ReplyDelete
  7. This is an interesting article on what to do (or not do) if the police are at your door. It's written for laypeople by Attorney Scott Kimberly, who is part of my writers group. I found it helpful in understanding the process if there is no warrant. http://www.primermagazine.com/2013/learn/legally-speaking-police-are-at-the-door

    ReplyDelete
  8. As always a very interesting and informative article, thank you! The videos are a great medium. In South Africa arrest is statutorily governed by the Criminal Procedure Act, 51 of 1977. At the moment our biggest debate (which is probably a universal one) is the right to use force in effecting the arrest. It would really help to learn more about this from your perspective.
    I hope the next one is not a ridiculous question. It appears on reality programs that police officers from different jurisdictions manage incidents quite differently? Is this true or just classic television?
    Much appreciated

    ReplyDelete
  9. Hi Nickey - I'm going to get an expert to post answers for you - hang tight.
    Cheers,
    Fiona

    ReplyDelete
  10. I can't speak to the laws of criminal procedure in another country. They may be vastly different from ours. In the U.S., police officers have the right to use just the amount of force necessary to overcome resistance and make the arrest. That force may escalate with the resistance. For example, if the suspect lies on the floor with his empty hands behind him and says, "I surrender," the officers would not be within their rights to Taser him. If, however, he throws a punch and begins to scuffle, the officers have the right to use reasonable force to bring him under control and into custody. If, during the fight, he manages to yank a gun free and point it at the officers, obviously intending to fire, they can respond with deadly force.
    Here's another example that happened recently in a Midwestern city. An officer confronted an apparently drunk individual who had just punched a cab driver. The officer, acting alone, attempted to wrestle him to the ground and subdue him. The man got the better of the officer, rolled on top of him, and began punching him in the face. The officer, fearing for his life, shot and killed the man. The shooting was ruled justifiable.
    Your second question is a little vague so I'll attempt a two-tiered response. If by "incident" you mean something that may involve mass casualties such as an active shooter, major traffic crash, or natural disaster, federal, state and local authorities subscribe to protocols laid out in what's called the Incident Command System (further definition from Wikipedia here: http://en.wikipedia.org/wiki/Incident_Command_System and from here: https://www.osha.gov/SLTC/etools/ics/what_is_ics.html). ICS is set up to avoid problems caused by different procedures used in different jurisdictions.
    If your question concerns how criminal investigations are carried out, your observation is basically correct. For example, a homicide investigation will be set up differently in a rural area than it will be in a major city simply because of the difference in size of the police agencies. What may be called a "Crimes Against Persons" unit in a smaller town will handle homicides, assaults, sex crimes and the like while a "Homicide" unit in a bigger police department will investigate just homicides. A rural department may have to ask for help with a homicide from the county sheriff or even the state police. Increasingly, however, small communities are forming task forces to handle major crimes and forming regional crime labs to handle evidence. An example would be a County Major Crimes Task Force (as referred to in my latest book EASY EVIL--http://ow.ly/uKVxL ) which is activated through the sheriff's office and draws experienced investigators and crime scene technicians from the sheriff, state police, and each community in the county to handle homicides, officer-involved shootings and any other cases its protocols allow.

    Doug
    (www.dougmcummingsauthor.com or follow me on Twitter @dougcummings3)

    ReplyDelete
    Replies
    1. Thanks Doug for the inclusive reply. It is actually very similar to our system. One of our major drawbacks is the fragmented communication between the different units. You answered everything I needed to know.
      This site really has turned out to be such a treasure trove!
      Much appreciated
      Nickey

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