Armed Polite Society
Main Forums => The Roundtable => Topic started by: Ben on November 08, 2012, 10:33:30 AM
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What do you guys think this is in relation to the story? It sounds kinda weird to mention it given the purported circumstances. Why do you need a search warrant to respond to a woman shooting a home invader?
The Santa Fe New Mexican reports that search warrant affidavits say the shooting Saturday occurred when 33-year-old Taos resident Lawrence Sandoval forced his way into the woman's home. She told deputies that she believed he followed her home from a gas station.
Read more: http://www.foxnews.com/us/2012/11/08/new-mexico-woman-shot-intruder-who-followed-her-home-deputies-say/?test=latestnews#ixzz2Be5aOdDp
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When I was prosecuting, a lot of times we did search warrants for crime scenes as a precaution. A valid search warrant up front is easier than a suppression hearing later, and the resulting appeal of that suppression hearing's decision.
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Chris, did you ever serve in circumstances like the above? We don't know the whole story I guess from that short little blurb, but if I shot a home invader because I was in fear of my life, even if I had nothing to hide, I'd probably get a little standoffish if police showed up with a search warrant for my home. My first thought would be that instead of treating me like the victim of the crime, I was being treated like a criminal.
I guess that might have a lot to do with where I live and the laws and social philosophy here. If it were Texas or something, I might be less inclined to be nervous if the police showed up with a warrant. And not being a lawyer, I also don't know all things a search warrant may routinely be used for. I only know it's bad news when they show up on the TV. :laugh:
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When I was prosecuting, a lot of times we did search warrants for crime scenes as a precaution. A valid search warrant up front is easier than a suppression hearing later, and the resulting appeal of that suppression hearing's decision.
This. Say in the investigation they find out he was lured there or something or another. Might as well cross the I's and dot the T's, eh?
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Chris, did you ever serve in circumstances like the above? We don't know the whole story I guess from that short little blurb, but if I shot a home invader because I was in fear of my life, even if I had nothing to hide, I'd probably get a little standoffish if police showed up with a search warrant for my home. My first thought would be that instead of treating me like the victim of the crime, I was being treated like a criminal.
I guess that might have a lot to do with where I live and the laws and social philosophy here. If it were Texas or something, I might be less inclined to be nervous if the police showed up with a warrant. And not being a lawyer, I also don't know all things a search warrant may routinely be used for. I only know it's bad news when they show up on the TV. :laugh:
First off, no. i was never involved in a situation like this. For better or worse, for the 12 years I was a prosecutor, there was one officer involved shooting that was no-billed by the grand jury, and no home-defense situations. The officer case was rightfully no-billed, as it was in a struggle for the officer's handgun during an arrest.
Ben, I think that I can't blame you for being concerned. I believe I would be if officers showed up with a warrant as well, even in my position. One would hope that the warrant would be limited to evidence regarding the shooting or other illegality in plain view. But, as y'all keep telling me, it may be for nefarious purposes, and they may seek any and all firearms, explaosives, and such. ;)
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In the spirit of thread-drift, does a search warrant grant the searchers access to a safe? An obligation by the home owner to open the safe or turn over the combination? Computer passwords?
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In the spirit of thread-drift, does a search warrant grant the searchers access to a safe? An obligation by the home owner to open the safe or turn over the combination? Computer passwords?
Can't remember the case citation, but somebody was recently in court (federal appeals?) over turning over the password to an encryption key, or some such. Something about them wanting to prove there was kiddie porn or state secrets or the receipt for Coca-Cola hidden on the 'puter. The possessor of the 'puter in question was taking the position that they had a warrant for the 'puter but not it's contents and if they wanted the contents they could jolly well get inside the encryption by themselves.
As for the question of opening safes - the warrant needs to specify what they are looking for, but it does let them look in otherwise-locked spaces. I believe that if you choose not to provide the combination/key they can bring a locksmith to drill it out. Not sure if they can take it away to have that done.
All I can remember is that my attorney told me to notify him immediately but that he could not stop them until he arrived - the best he could do was to negotiate an agreement that would stall them. He also told me that there was nothing I had to sign so refusing to sign anything was a waste of time and energy.
stay safe.
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In the spirit of thread-drift, does a search warrant grant the searchers access to a safe? An obligation by the home owner to open the safe or turn over the combination? Computer passwords?
That would depend entirely on the warrant and what the warrant was targeting. I imagine that in this case, the warrant would be for anything relating to the shooting. Depending on the circumstances, and the aggressiveness of the warrant/prosecutor/investigator and the willingness of the judge, the warrant could include access to a gunsafe and any/all firearms in the home. Might even be written to seize them all for ballistic testing, but honestly, I think that would be quite a stretch absent some suspicious circumstances (like a gunshot victim in the front hall and no firearms to be seen in the area). As for combinations, the one case I know of with a safe, the warrant was written to allow forced entry into the safe. When shown the warrant, with his attorney present, the owner gave up the combination rather than risk having the safe and/or the contents damaged. Probably a good choice, as in the long run the safe and contents were released to the owner.
As for computer access, I know that there were some computer cases going on in the office when I was still prosecuting, especially relating to sex crimes, but frankly I didn't pay that much attention, as it wasn't my area of speciality. Thankfully, it still isn't.
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I ask because I value a safe with a compromised passcode about as much as a sliding closet door. And no, I don't trust a police computer system to keep the code safe from non-police, nor do I trust police to not take interest in a safe after an investigation.
I'd have to replace the safe anyways if compelled to give up the code. Compromised once, compromised forever.
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I ask because I value a safe with a compromised passcode about as much as a sliding closet door. And no, I don't trust a police computer system to keep the code safe from non-police, nor do I trust police to not take interest in a safe after an investigation.
I'd have to replace the safe anyways if compelled to give up the code. Compromised once, compromised forever.
If it's an electronic lock safe you can usually change the code, correct? If it's like mine, old fashioned dial combo, then I guess I'd have to pay to have a professional change the combination for me.
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If it's an electronic lock safe you can usually change the code, correct?
Correct.
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Ben, I think that I can't blame you for being concerned. I believe I would be if officers showed up with a warrant as well, even in my position. One would hope that the warrant would be limited to evidence regarding the shooting or other illegality in plain view. But, as y'all keep telling me, it may be for nefarious purposes, and they may seek any and all firearms, explaosives, and such.
Chris, you were a prosecutor, so I am surprised by your statements. Maybe the laws in your state are different from the laws in my state, but here a police officer (or a fire marshal, in the event of a fire investigation) can conduct a full inspection ("search") of the scene of the incident and immediate surroundings directly following the event with no need for a search warrant, and no court will suppress evidence uncovered in such an investigation. I'm a building official, not a fire marshal, but we go to the same training on right-of-entry; it's just that building officials rarely need to use it. Mostly we are called to do inspections pursuant to a permit.
I think the operative term is "exigent circumstances." The authority having jurisdiction can secure the scene and perform his investigation with no warrant. Once the scene has been released, however, if he wants to come back three days, weeks or months later ... he will need a reason, and a warrant.
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victim of the crime... treated like a criminal
Isn't that standard procedure ? =(
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Chris, you were a prosecutor, so I am surprised by your statements. Maybe the laws in your state are different from the laws in my state, but here a police officer (or a fire marshal, in the event of a fire investigation) can conduct a full inspection ("search") of the scene of the incident and immediate surroundings directly following the event with no need for a search warrant, and no court will suppress evidence uncovered in such an investigation. I'm a building official, not a fire marshal, but we go to the same training on right-of-entry; it's just that building officials rarely need to use it. Mostly we are called to do inspections pursuant to a permit.
I think the operative term is "exigent circumstances." The authority having jurisdiction can secure the scene and perform his investigation with no warrant. Once the scene has been released, however, if he wants to come back three days, weeks or months later ... he will need a reason, and a warrant.
yea thats great till the appeal. remember troy davis? the clothes in his moms house that had the blood of the cop he killed on them was supressed. his mom let cops in but later claimed she was scared and the man in the long black dress suppressed the evidence found. it coulda let him cheat the executioner
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Isn't that standard procedure ? =(
We're all guilty of something
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We're all guilty of something
Mine is an evil laugh >:D
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In my area, most "home invasions" are drug deals gone bad. I can see the logic behind a warrant ASAP AFTER inital response, w/ at least, one officerremaining on scene.
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Different states, different rules -- but the basics of a search warrant are that the affiant/applicant MUST state the reason why the affiant believes there is probable cause to conduct a search, and MUST state what they will be looking for. Maybe judges in some states are just more police-friendly than in others. Or maybe LESS police-friendly, because (as I indicated above) I don't think any judge in this state would invalidate evidence found in the course of an immediate post-incident investigation, be the incident a homicide or a possible arson.
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Possibly naive of me, but I'm thinking that there are still lots of normal decent people in America, including most LEO's/LEA's, and that such a warrant likely has nothing to do with the victim/home owner, but instead a way to better nail the perpetrator, should he get a clever tile-crawler and get some sort of key evidence suppressed from the victim's home because there wasn't a warrant for it.
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When I was in college majoring in criminal justice, warrants were discussed quite a bit in my criminal investigation class. The teacher was also the lead detective from the neighboring town. He said, this is in Illinois BTW, that where the police can search depends on what is on the warrant. This was an example he gave.
If you are searching a house for a stolen stereo, if Stereo is the only thing on the warrant than the officers can only search where there could possible be a stereo. If there are drawers, cabinets, etc. that are too small to house a stereo than they cannot search in those locations. He then told us that what should be requested on the search warrant is Stereo including all cords and accessories. This way, the officers can search those areas that are too small to hide a stereo but may contain other illegal items.
That class was one of the major reasons I chose to drop out of the criminal justice program. I was amazed at all of that type of crap they were "teaching" us. I really saw law enforcement in a different light.
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So if they want to look in the safe, would they allow you to open it without disclosing the combo?
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So if they want to look in the safe, would they allow you to open it without disclosing the combo?
They are not interestyed in how to open it - just in looking to see if the contents are a match for what the warrant says they are looking for. So - the answer to your question is yes. As a matter of fact, they would probably prefer that you open it so they do not have to go to the expense of a locksmith or hauling it off to torch it open.
stay safe.
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Chris, you were a prosecutor, so I am surprised by your statements. Maybe the laws in your state are different from the laws in my state, but here a police officer (or a fire marshal, in the event of a fire investigation) can conduct a full inspection ("search") of the scene of the incident and immediate surroundings directly following the event with no need for a search warrant, and no court will suppress evidence uncovered in such an investigation. I'm a building official, not a fire marshal, but we go to the same training on right-of-entry; it's just that building officials rarely need to use it. Mostly we are called to do inspections pursuant to a permit.
I think the operative term is "exigent circumstances." The authority having jurisdiction can secure the scene and perform his investigation with no warrant. Once the scene has been released, however, if he wants to come back three days, weeks or months later ... he will need a reason, and a warrant.
The key issue, and the reason that our office adopted this policy, is the question of what constitutes the scene of the crime. Is it the room where the shooting happened, the floor that the shooting took place on, or the entire house? Does it include the exterior of the home as well? What about an attached garage?
I think that the biggest problem in our discussion here is that we are thinkibg of teh situation in terms of the average Joe forced to fire in self-defense in his home. My experiences were situations where the assault/beating/stabbing took place in circumstances and locations where "homeowner defending self and family" didn't spring to mind, more like driug deal gone bad, or something that suggested other criminal activity was occurring when this active crime/exigent circumstance took place. One that comes to mind is a gang-related shooting I handled. Skinhead shot on his front porch, then crawls back into the home, which was not his home. Obvious on arrival were the scales and paraphernalia associated with drug packaging and selling. So, the scene is secured and a search warrant obtained.
Back to the OP, I can only imagine that it was a CYA move by the officers investigating the shooting.
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So - being the victim of a violent home invasion is probable cause to suspect that you are a drug dealer ???
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So - being the victim of a violent home invasion is probable cause to suspect that you are a drug dealer ???
Naturally ... this is the United States of America, you know. If this were a police state, there would be no "suspect" in the above statement.
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Let's put it this way...investigators come to the scene of a homeowner shooting. They come in the front door. Homeowner says "I'm waiting for mmy lawyer before I say anything." Now, officers are in a bad spot, as they don't know how bad guy made entry, where the weapons are, if there is more than one location for this crime, etc. Only thing they can dois get a warrant to investigate the shooting...
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Let's put it this way...investigators come to the scene of a homeowner shooting. They come in the front door. Homeowner says "I'm waiting for mmy lawyer before I say anything." Now, officers are in a bad spot, as they don't know how bad guy made entry, where the weapons are, if there is more than one location for this crime, etc. Only thing they can dois get a warrant to investigate the shooting...
???
That doesn't make sense. Well, maybe under your state's laws, but not here. Irrespective of whether or not the homeowner (or whoever that guy is who answered the door) elects to make a statement, the responding officers ARE entitled to require that he identify himself, and they are entitled to enter, secure the immediate area of the incident, and to collect and process evidence.
How far the "immediate area" extends may be subject to some interpretation, but the guy at the door certainly can't tell the cops to wait on the lawn while he relaxes inside -- possibly destroying or tampering with evidence.
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Maybe its because we fought so many suppression motions based on searches after the exigency ended...in other words the scene is secured and thus the emergency ended...that we were cautious. Lost a couple, so we trained officers to call for a warrant. The hypothetical I'm thinking is the homeowner secured the gun waiting for officers. Medics declared the bad guy dead. Cops ask ehat happened. Home owner says " I'm Joe Homeowner. This is my home. I won't be making a statement until I consult an attorney." Period. Cops ask where the gun is. Joe says lawyer. Cops ask what happened. Joe says lawyer. Cops have two choices. Ask for consent to search, or seek a warrant. There is no exigency at this point, and the scene can be easily secured to protect evidence.
I know that this is probably being overly cautious, but that's me.
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Around here, according to the prosecutor lady from the AG's office who teaches us all that search warrant-ish stuff, the exigent circumstances obtain from the moment the first responder gets to the scene until the last investigator goes home. That might be three minutes, three hours, or three days or three weeks. Once the scene is under the control of the investigating authority, it's THEIR scene, and Mr. Homeowner can sit on the lawn until the scene has been released.
Once the investigators depart, if they want to come back for a second look they need a warrant.
Mind you, the training I get is primarily for arson investigations, not homicides. But ... when responding to a fire, nobody can predict whether or not there will be bodies in the rubble, or evidence of arson. So ALL fire investigations are treated as potential arsons until arson has been ruled out.
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Hawk, I think you nailed that one, in that all fires are arsons until proven otherwise. Only area of the criminal justice world where you investigate to innocence...