If Walls Could Talk: Let’s Talk Search and Seizure
It’s been awhile since I’ve written a column about my primary genre: mystery/crime. I tend tend to look at writing in general, or review something that caught my attention. To be fair, this is a review of something – but I’m using it to walk you through something that might come up if you ever write a cop anywhere in your fiction.
So imagine this…
Police have a warrant. They’re ready to burst in and collect evidence. But, realistically, how does that happen?
Search and Seizure?
Now, our search and seizure procedures have their roots in the Fourth Amendment in the United States Constitution. It reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
I enjoy a good history lesson as much as the next person (okay, more than the next person), so let’s look at why this amendment got added to the Bill of Rights.
Back in colonial times, King George imposed a lot of taxes on the colonies. The colonists were less than thrilled with this. Soon, they established underground trade to circumnavigate these taxes.
King George retaliated by allowing Writs of Assistance to be issued. These gave British officers the right to search anyone and anything they pleased – for no reason other than suspicion.
This, among a plethora of other reasons, was why the American Revolution happened.
In case you didn’t know, nowadays, it is a lot harder for police officers to get a search warrant. There is a long process that requires you to sign a sworn affidavit along with permission from a judge.
Why are you talking about this?
I’ve been watching the Fox series 9-1-1 for about a year now. It follows a group of Firefighters and EMTs (occasionally adding the the LAPD into the mix). Normally, I don’t mind the show, but it’s most recent episode “Oceans 9-1-1” drove me up the wall. It seemed to have no idea as to how to handle search and seizure.
Hence this column.
Through a bizarre series of events, the shift of the firehouse we most often see, the officer we most often see, and the residences of a few other characters get searched because they’re now suspected of a crime.
How do we learn this is happening?
We learn that this is happening when the aforementioned officer, Athena, opens her door. She finds a bunch of her co-workers standing there.
One of these co-workers held a warrant. There was a breach of protocol here. At first, I ignored it because I thought they were going to touch on it and use it as a plot point. Instead…
She just opened the door.
When issuing a warrant, the officer who serves it must knock on the door and announce (through the door) their intention to search. Technically, a person does have the right to call their attorney before the officers enter the house. There are circumstances where this isn’t the case, but in normal run of the mill searches, there is strict procedure to follow.
In “Oceans 9-1-1” this procedure is ignored. The sequence started with Athena following them in. There was an exchange, as if Athena wasn’t surprised to see them. In fact she’d brewed extra coffee for them. She mentioned it’s fine, because she didn’t warn the others a search was coming.
And that’s where things start to go wrong.
We see a series of various characters opening their doors to find police and various tech standing there. The door is barely open when the police shove a piece of paper in their hands. Paper delivered, the police walk by them and into the residence.
First off, they should have announced themselves as they knocked the first time. Secondly, you have to pause and allow them to read the warrant – and also allow them to exercise their rights under Miranda V. Arizona to have an attorney present.
After seeing a punch where they just made their way in and started to absolutely ransack the homes of around a dozen different people, I was officially annoyed.
They took someone’s laptop. The person was like, “You can’t be serious.” And that gave me pause.
Fun Fact, everyone: if an object’s not listed on the warrant, the police cannot take your property. If that laptop was not listed as potential evidence, they had absolutely no right to take it. And, I get it, it’s only a 41 minute episode and we don’t have time for all the procedure when there’s excitement and drama to be had. And, yes, we’re in the middle of a rather long second act, forcing later acts to hurry up. But there were ways to do this a lot better.
As this sequence goes on, one of the officers tells someone, “We’re going to have to search your car.”
Is it on the warrant?
Is that car on the warrant?
When writing a mystery, it’s important to note that television and the movies are notorious for reaching for the excitement and drama of police work. It’s appealing, it’s exciting. Paperwork and due process can seem like such a drag. But, you need to find a way to balance the excitement of your work with the realistic boundaries that your character would be limited to. Limits are what give your story drama, and ignoring them only hurts your story.
There were two things here that further annoy me.
They took Athena’s son’s laptop. Let me be clear. Minors get a lot more protection than adults in various parts of the legal process. There is absolutely no reason why a judge in those circumstances would allow them to take a child’s laptop in a completely unrelated case.
Then, as Athena is talking to another character and says something like, “You just have to let the wheels of justice turn.”
Because that’s not how they turn.
I’ve been referencing Lee Lofland’s Police Procedure and Investigation: A Guide For Writers a lot during this article. This book is one of the cornerstones I used when I wrote Notches. Loffland has over two decades of law enforcement experience and the book is quite fascinating. If you’re interested in writing mysteries, I’d suggest you get it.
Loffland has a chapter that covers both the arrest process and search and seizure. There are some things I’m going to give you rapid fire to save you a little research time.
1) Officers must sign a sworn affidavit that the information they’re telling the judge is true
They must have probable cause.
In “Oceans 9-1-1” there would be arguments that they did not have probable cause to search everyone there. Honestly, I don’t think there was probably cause to approve any of those searches.
2) What the police intend to “search and seize” must be listed out in terms that are as specific as possible
This means a judge will not approve a search warrant for a “fishing expedition” because you think this guy may be the perpetrator. What are you looking for? Because that’s all you’re going to look for.
3) Once the illegal item is found, officers can go no further into the home – this implies that you must be looking for something specific
Once again, that means you cannot just go into a house without a specific reason. Thus, you wouldn’t have that montage where they were just going around in random rooms tearing apart the house with no sense of what they were looking for.
4) The homeowner can allow officers in without a warrant
In this episode, they had warrants for everyone. But, the police can come in and search if you let them. They’ll probably ask for written confirmation that you gave that permission (just in case they do find something).
5) It must be in plain sight
If it is plain sight. That is, it’s clearly seen without coming into the home, or by moving anything, the police can seize it.
The importance of proper search and seizure rules is so that the public’s fourth amendment rights are protected and that officers don’t end up with “Fruit from the poisonous tree.”
In other words, it makes sure that when they get the piece of evidence they need, it doesn’t come in a way where: 1) it may be deemed inadmissible in court; 2) and you risk letting someone guilty walk.
When I started writing mysteries, I spent a month on research. I still do a ton of research. In fact, I get forensic science emails sent to my inbox every day so I can keep an eye on the latest trends. I’ve attended a crisis response training session and someday I want to do a ride along. I’ve rented firearms my characters use to make sure I understand what it takes to pull the trigger.
Just be careful when you write something. The facts and the real way things happen can be interesting too. And if you’re story relies on thrills and twists and turns and action sequences, you have a much larger problem on your hands. Remember, your audience’s trust rests on how much you get right, and your audience’s trust is very important. Don’t let your audience’s trust be broken the way “Oceans 9-1-1” broke mine.