Another Search Warrant Question

I'll give you a RL example:

I was called to a home where the neighbors reported young children had been left unattended. When I knocked, a 3 year old boy answered the door. When I asked if there were any adults at home, he said no. I asked if he was alone, he said, no, me and my sister are watching the baby.

I entered and found a newborn and a toddler, maybe 14 months old. The 3 year old had tried to change the baby's diaper, but was unsuccessful. We called child welfare services. While we waited for the Child Welfare agent to arrive, I noticed a plaque glued to the top of the television set. The plaque read, "Property of the Cerebral Palsy Association" along with that agency's address and phone number.

Apparently a friend of the children's mother went to the bar where she'd been drinking and told her the cops were at her house, because she returned about the same time as the child welfare agent got there.

The child welfare agent was reluctant to remove the children from the home. I told her the mother was going to jail for possession of stolen property and endangering the welfare of a child. The agent had no choice than to remove the children and place them in a safe home.

To get back to your case, I had probable cause to believe the TV was stolen. I had a legal right to be in the house and the TV was in plain view. In your microwave scenario, The same situation exists, The officers have probable cause to believe the microwaves are stolen. (He knows of the theft, he knows the make and or model of the microwaves, they are in plain view, and he knows it is not normal for people to have boxes full of microwaves in their homes. He has the right to pursue the investigation without a warrant. He would ask someone to claim ownership of the microwaves. If no one fesses up, he'd charge everyone in the house with possession of stolen property. Matching the serial numbers to the list of stolen microwaves would be part of the followup investigation.

The reason the microwaves need a search warrant and the TV witht he plaque on front does not, K, is becaue the positive ID for the micros is on the back. In order for the cop in the Lofland scenario to verify the micros are stolen, he has to turn them around to look at the back where the serial number is etched or riveted to the body. That act of flipping over a piece of evidence is an additional intrusion, so he needs a warrant.

However, while one cop is trotting off for a search warrant, yes, others can stand right inside the living room and watch to make sure no one carries them away, destroys them, rips ID numbers off. If there are no curtains that could be closed to obscure the view, the cops may wait outside if they can maintain constant visual on the item. They have to keep direct surveillance on the item, otherwise the cop swearing before the judge in teh warrant application that those micros are in the living room could be wrong. ("Your honor, Ofc Jones is on scene now maintaining the integrity of the scene.")

Kate_Sherwood said:

(I like my laws black and white!)

Click to expand...

In the past, I've done many a search, and applied for many a search warrant. It's not always black and white -- in marginal cases, one judge may well sign off on a warrant, whereas another might well decline.

Likewise, once in court, judges will sometimes rule differently on the legality of a search, given the exact same circumstances.

Horseshoes is usually correct in such matters, however.

I also concur with Horseshoes' analysis.

If you can SEE the serial numbers in plain view when you are otherwise in a place you are legally permitted to be in, then there's no need for a warrant. That's why it's called the "plain view" exception to the warrant requirement; if it's in plain view, there's no reason to get a warrant.

The minute you want to move something around to see it, you need a warrant, because it's no longer in "plain view".

The microwaves thing could be a fluke coincidence; i.e., someone saw the Mythbusters microwave episode and wanted to try it out for themselves. That doesn't mean they are the stolen microwaves. If they're silly enough to stack them all in such a way that you can see the serial numbers without moving them...the law allows an officer to get those numbers and check them.

If he can't see them he secures the scene and applies for a warrant.

In the Lofland scenario, the officer is probably going to be on scene for a while, taking statements and otherwise investigating the underlying domestic situation. Nothing wrong with asking people where the microwaves came from, or for permission to check them and make sure they're not stolen. Consent is another exception to the warrant requirement. There are no facts here that indicate that someone is making off with or otherwise destroying the evidence, so there's no reason to believe there's an emergency to take them at this point.

And I'll totally concur about Lee's book...it's a great resource (though I do work in the field as well.)