View Full Version : Can the police arrest someone, with admissible evidence, in this case?

06-08-2016, 01:18 PM
For my story, I was having trouble before, coming up with a way for the police to be able to get enough evidence to arrest the suspects. Mainly because I was told before, that the police would not be able to get wire tap orders or search warrants with the evidence they already have so far in the story.

So the villains in my story are committing all of their crimes indoors and the police therefore, cannot legally see or hear anything they do. However, I went over more of the fourth amendment technicalities, and asked other people's opinions.

One possible exception to the rule I discovered is the 'stop and frisk' exception, as I read it was referred to as.

If an officer has 'reasonable suspicion', to believe that a crime has a occurred or will occur, the officer is allowed to search the suspect while he/she is mobile, on foot.

But does it matter what they find in the search for the evidence to be admissible? Say for example, if the person is carrying a laptop, and the police want to search the laptop. Even a quick search, cause they believe that evidence is still being uploaded and transferred, in progress and want to catch it. Would reasonable suspicion, legally be enough to so do?

But even if the officer wants to do a stop and frisk anyway, regardless of the laptop, let's say the suspects panic and try to resist and arrest and flee. Would them fleeing and resisting, then give the police legal cause to search the laptop then?

06-08-2016, 04:23 PM
So the bad guys don't have their laptop password protected?

The cops can pretty much do whatever they want. They are allowed to lie. They can say they heard someone screaming and they were responding to an imminent threat. That said, there is a difference between arresting someone for a crime and that person getting convicted of said crime. Also illegally obtained evidence is not admissible in most if not all jurisdictions, so the more they do stuff not by the book, the more likely the criminals will go free.

As far as a given cop character's behavior goes I think you could write just about anything. The time readers may take issue with the plot will be if the cop gets away with or is lauded for blatantly illegal behavior.

06-08-2016, 04:38 PM
First off, you need to separate the TERRY stop (also called stop and frisk) from New York City's stop and frisk policy.

TERRY says that where a police officer has an articulable reason to suspect a crime or that criminal activity is occurring, he can stop and frisk the subject. In TERRY, the suspects were clearly casing a store to rob. The officer stopped the three men, and for his safety, did a light pat down of the suspects, revealing the possibility that one of the suspects might have a gun. At that point, the officer did a full frisk of that suspect, and discovered a gun.

This is markedly different from NYC's policy decision, as a result of the broken window crime management theory, where police officers would stop individuals because they looked suspicious. NYC's approach would be unconstitutional in many jurisdictions, and resulted in a lot of minimal pleas and dismissed cases. There have been variations of this system in other jurisdictions and involve taking a questionable technique, but offering such a deal that of course the defendant will buy it.

However, all you're articulating as a justification for the stop is that the suspects are doing crimes the police do not observe. That doesn't even work in New York City.

Searches of computers, including laptops, absent searches by ICE and in some very limited circumstances, require a search warrant. Searches of computers can require significant amounts of time, as even with a limited number of file extensions to go through, you can have thousands of files with those extensions. How many pictures do you have on your computer?

Jim Clark-Dawe

King Neptune
06-08-2016, 05:19 PM
As JCD wrote, they can stop and frisk, but searching a computer is far beyond that. If you want your criminals to get off, then have the cops search the computer on the basis that you mentioned, and any evidence found on the computer will be thrown out of court.

CL Polk
06-08-2016, 06:24 PM
ironpony i think you need to use google more.

every day you're here asking a question you could do the research on yourself.

06-08-2016, 08:08 PM
Just btw, NYC has seriously curtailed the Bloomberg-era Stop and Frisk shit.

06-08-2016, 09:31 PM
Okay thanks. I have used google, but there are variables that the law does not go into that I would like explore, or I just haven't found the variables yet.

I do not want the villains to get off. I want them to get caught, but have not found a way for the evidence to hold up in court yet. Mainly the police have suspicions, perhaps even probable cause to know what they are doing behind closed doors, but I cannot find any legalities, that would allow them to search behind those closed doors. Plus the villains do not have reasons to incriminate themselves in public places logically, so I seem to have to find a way to get the police behind those closed doors.

06-08-2016, 10:07 PM
I strongly suspect you're going to utterly confuse the majority of readers if you delve too deeply into the minutia. If you must use "stop/frisk", keep it simple as it was originally intended--for officer and public safety, a quick pat-down for weapons. A subsequent, more thorough search follows if the "pat down" reveals a potential weapon. That's it, in a simple nutshell.

The only way you can "get the police behind closed doors" is to have someone who is already there compromise the gang's presumed security and leak relevant information. Think in terms of a not-so-bright gang member taking a clandestine cell phone video of some illicit activity and sharing it with some gang-groupies he's trying to impress and bed. Within a day it could find its way into the public domain (internet), and the investigation now has its first bit of actionable intelligence that may ultimately lead to corroborative evidence.

That scenario is plausible, keeps things relatively simple, and neither bogs down the pacing nor confuses potential readers.

06-08-2016, 10:11 PM
Okay thanks. Well the evidence the villains have that would incriminate them, which they have reason to keep around is electronic, so I guess the police have no reason to search electronics on a patdown.

Also, I have thought of the foolish gang member making a mistake before. But if this happens though, then the hero cannot be the hero and catch the villains on his own. Some foolish member of the gang is the real unintentional hero, that makes everything possible and it kind of feels cheap I guess. I wanted the real police hero to be able to achieve the goal himself, rather than a foolish member open the door for him by accident, if that makes sense.

I was watching the movie The Negotiator (1998). I know it's a movie and not real life, but I was wondering if that scenario is plausible. In that movie, a cop is framed for murder, and in order to prove his innocence and not be charged, he is on the run and breaks into the house of the cop who framed him. The police then show up to arrest him and he finds the evidence at the crooked cop's house to prove he was framed. The crooked cop is then arrested.

But would that evidence be admissible in real life? If the cop is a framed fugitive, is their an exception to the rule, when searching without a warrant?

06-08-2016, 11:43 PM
Short answer: admissibility will be up to the court at the conclusion of a motion to suppress hearing in which strong positions will be argued by the parties (prosecution/defense).

Potentially both cops could be charged. The framed victim is still guilty of burglary. Worse, if he is deemed an officer at the time, the search (absent a search warrant) is bad, and any evidence found is likely inadmissible; and, he is also guilty acting under the color of law (18USC242), a deprivation of constitutionally protected civil rights, a very serious federal felony (under certain circumstances even the death penalty can be on the table). See link . . .


It is rather ill-advised to look to the entertainment industry for pragmatic legal guidance--not that you were, of course, but some folks are somewhat easily influenced. If you want to keep your tale credible and plausible within the M/S/T/Police Procedural genre, you'd be wise to heed the advice you've been given in the AW forums. OTOH, if this story is slipping into the fantasy genre, you can pretty much make up your world's rules as you see fit. Whatever you decide, we encourage you to write the tale you muse has inspired. Best of Luck!

06-09-2016, 12:44 AM
Okay thanks. Well the first half of my story deals with court procedures and technicalities to tell the story. So I feel that maybe I should keep it more on the realistic side for the second half as well.

If a framed officer wanted to prove who the real culprits were, but did not want to turn himself in till the real culprits were arrested and charged, and an indictment most likely holding up, what would that cop have to do, to steer the other police into the direction of acquiring the real evidence, from the real culprit?

Can a cop somehow manipulate other police into searching someone else's property, without it being fruit of the poisonous tree? Or somehow search it himself and not have it considered to be fruit of the poisonous tree, cause he has suspicion to believe that criminal activity is going on, but has no warrant?

06-09-2016, 02:01 AM
Okay thanks. I have used google, but there are variables that the law does not go into that I would like explore, or I just haven't found the variables yet.

These "variables" are why lawyers spend years in school. These "variables" are a big part of what a police officer must learn before he or she can become certified. This is why most books involving this stuff is written by attorneys or police officers. It's a complex, unique world. It's hard to understand and these "variables" are a big part of why stories play out the way they do.

TV and movies are very different than books. They often love the rogue cop who gets results and ignore the complications. I like N.C.I.S., but realize that Gibbs would have been fired long ago and most of his cases would get thrown out of court.

You want a rogue cop (it's the name of the trope you're using) coming in to the rescue. The only place rogue cops exist in the real world is on the unemployment line. Your case, in the real world, would involve thousands of hours by a team of police officers working together running down every lead. You might want to look at the Nathaniel Kibby rape case. A lot of factors similar to what you're trying to do. See how much work went into the case.

If you're doing the rogue cop trope, the case probably won't survive in court. (That's why in the real world it doesn't happen that way.) But that's fine, because the rogue cop is going to do what's right and damn the lawyers and their fussy rules. Bottom line is you can't make the rogue cop fit into the real world. The only way I could do it is to ignore reality.

Jim Clark-Dawe

06-09-2016, 06:18 AM
Also, I have thought of the foolish gang member making a mistake before. But if this happens though, then the hero cannot be the hero and catch the villains on his own. Some foolish member of the gang is the real unintentional hero, that makes everything possible and it kind of feels cheap I guess. I wanted the real police hero to be able to achieve the goal himself, rather than a foolish member open the door for him by accident, if that makes sense.

What if the police officer sets up a situation, and tricks the foolish gang member into doing something, well, foolish. Or, mind-numbingly stupid?
Putting snitches into jail cells to listen to a suspect talk, in hopes that they will say something incriminating to their new 'buddy' is apparently not uncommon, and I've heard of cases where women wanting to kill their husbands have been conned into believing that an undercover cop they meet in a bar is a hitman. So, presumably, if your policeman buddies up to Foolish Criminal, and gets him to give up info and evidence, that would be acceptable, perhaps even heroic enough to suit you?

06-09-2016, 12:49 PM
Okay thanks. The villains already know who the cop is though from the opening incident of the story, so the cop cannot go undercover himself. He can perhaps blackmail others into helping him maybe.

I have thought of some scenarios where the cop will send in someone to blackmail the villain and put pressure on the villain to make a mistake and incriminate himself, which can be recorded and used as evidence. But this causes some potential problems in terms of the evidence being admissible.

One scenario I asked about before, was the crooked cop, who is involved with the gang but then wants to turn good and wants to turn them in. What if that cop faked his own death and made it appear that the villains are the most likely suspects... The cop gives the police force, enough bread crumbs that leads to the suspects property and associates, and the police can get warrants to search, do wire taps, etc.

The police then find evidence, not on the cop's faked death, but on evidence of the gang's past crimes...

The only thing is, if a cop fakes his death and the police investigate it, but then find out it was a faked ruse on his part likely, but however, turned up evidence of other crimes 'accidentally', in the process, can they use that evidence cause it was turned up by accident?

For example, there seems to be a fine legal line in the difference between fruit of the poisonous tree evidence, compared to evidence, that was found accidentally, while investigating another matter. If the matter that is being investigated was a ruse, could the evidence of other past crimes, discovered by accident still be used, in relation to those past crimes, as long as the evidence proves to be authentic? And even though the fake death was a ruse, what if the investigation of the fake death, was all done by the book? Can the accidental evidence still be admitted then, compared to not doing things by the book, resulting in evidence being tainted?

Or maybe it would be better for the crooked cop, to fake his own kidnapping instead, and have the police investigate him being kidnapped instead, cause he could then have a better reason for being alive, and say he escaped the kidnapping.

06-09-2016, 05:50 PM
Ironpony -- These are all variations of rogue cop scenarios. They might work in real life, but probably not.

As far as blackmail is concerned, when that comes out at trial, the blackmailer is going to lose all credibility as a witness. People don't like blackmailers and don't tend to believe them.

Witnesses that lie to the police will have those lies exposed and examined at trial. Liars don't tend to do well as witnesses. Jurors tend not to believe them about anything.

This has nothing to do with them being a police officer, or ex-police officer. That will only make the situation worse.

Rogue cops don't care about the technicalities of the legal system. They're out for justice, no matter how they get it. One reason the rogue cop works as a trope is because of that conflict between the system and what the cop wants to do. It touches our inner sense of justice, where we want to have the bad guy punished even though the law doesn't allow this.

The reason you're finding it impossible to get from here to there is because there isn't any path that works. Ultimately, in the real world, the rogue cop botches a bunch of cases and then leaves law enforcement, whether voluntarily or encouraged. Take a look at Fuhrman. He is a major factor in the Simpson case being botched, and then retires immediately thereafter from the LA police department. This was at 20 years of service, but one has to wonder at the timing.

Jim Clark-Dawe

06-09-2016, 09:21 PM
Okay thanks. What I meant was is, that what if during the faked death investigation, the police find all sorts of physical evidence, and the cop does not have to blackmail anyone or testify at all, cause they found all this other physical stuff that can be used. Does the cop have to testify, if they find all this other stuff? What if the cop takes the fifth or something, if the defense calls him, but the prosecutor still has all this other physical proof that was found by accident, legitimately in the investigation by other officers?

06-09-2016, 10:35 PM
This may or may not be helpful :) but your plot questions are sufficiently wide-ranging that I'd guess you aren't totally sure what the story is saying on a thematic level. In a well-constructed narrative, there is usually a thematic difference between the protagonist and antagonist that ultimately leads the protagonist to defeat the antagonist. The protagonist has a key virtue, the antagonist has a key vice. They are thematic mirrors. If you know what sets the protagonist apart from the antagonist, it simply becomes a question of how this difference plays such a fundamental part in their conflict. For example, if the protagonist has a natural ability to empathise with others while the antagonist is a heartless monster, the protagonist's ultimate victory should come through his empathy - he recognises the one person in the antagonist's organisation who can still be won over, or he's able to understand the antagonist and anticipate his next move. Then you work out the specifics of how it's done. But you need to know why the protagonist wins before you can know how.

Just a quick thought.

06-09-2016, 10:43 PM
Oh okay, I thought I knew why the protagonist wins. Am I missing something?

06-10-2016, 01:20 AM
Okay thanks. What I meant was is, that what if during the faked death investigation, the police find all sorts of physical evidence, and the cop does not have to blackmail anyone or testify at all, cause they found all this other physical stuff that can be used. Does the cop have to testify, if they find all this other stuff? What if the cop takes the fifth or something, if the defense calls him, but the prosecutor still has all this other physical proof that was found by accident, legitimately in the investigation by other officers?

Okay, assuming you can find the prosecutor who wants to touch any part of this mess, and assuming the prosecutor can get this through all the motions to dismiss and their appeals, and you can actually get this to trial, you've got two choices as the prosecutor. Either hope that defense counsel is too dumb to bring this up in front of a jury, or the jury actually follows this and decides that the end justifies the means. Most likely the jury decides they can't convict because they don't believe the prosecution's witnesses by beyond a reasonable doubt.

Prosecutor can choose whatever they want to introduce for evidence, but defense counsel always loves to have a mess that no one can figure out. Keeping things hidden from the jury (anything the prosecutor doesn't tell them about) usually has negative results for the prosecution. Failure to disclose this stuff will also get the case thrown out. Chances of conviction here somewhere close to zero.

Jim Clark-Dawe

06-10-2016, 12:35 PM
Okay thanks. Well I have an idea for a different ending. What if the cop kills all the gang members, all in the same place at the same time, and makes it look like 'self defense', and then says he caught them incriminating themselves with the evidence and they drew their weapons on him so he had to fire back.

His superiors then tell him something like 'Well even if they surrendered, the evidence wouldn't have been admissible anyway'? Can the MC get away with that and make it look like self defense, while trying to make an arrest on tainted evidence, rather than actually making an arrest on tainted evidence?

06-10-2016, 02:55 PM
We're straying into brainstorming territory here.

ironpony, I appreciate your willingness to get things right, but you are asking an awful lot of questions about this, and it's starting to test some folks' patience. If you are having this many questions before writing your story, you probably need to do some more extensive background reading yourself (including looking up the various relevant laws, finding information about police procedures in the relevant jurisdiction, and reading widely in the genre). If you aren't willing to do that, you're probably writing the wrong story.

06-10-2016, 09:29 PM
Okay thanks. I would like to do more research but most law books and examples on the subject do not dive into many variables that I would need to know to right the story. When doing research, are their any books are sights that cover very specific scenario variables?

Because when I read the law, I only get an overview of the rules mostly, without going to the particular variables of my story. The fruit of the poisonous tree law for example, can have a thousand different variables in it, but it does not go into all of them in my research.

Is their any books or sites that go into it more?

06-10-2016, 10:35 PM
You're last scenario is classic rogue cop solution. There's no way to figure out how this would play out in the real world because it's never happened and isn't likely to happen.

My personal library on this stuff is easily over a hundred books. More specific questions involves using internet or law library resources to trace down the exact answer. The first year of law school involves learning how important a simple minor fact can be deciding a case. Learning the complexities is how an attorney learns to identify what is murder and what is an accidental homicide.

Jim Clark-Dawe

06-10-2016, 11:00 PM
Okay thanks. I think that might be why I cannot find an answer by looking it up maybe. There is no way to figure out how it would play out in the real world. Even though it's never happened, let's say it did, there is still no way to figure it out then at all? So if there is no way to figure it out, what is the best approach then?

06-10-2016, 11:06 PM
Well, this is a big role that judges serve: interpreting the law and deciding whether it applies. It might be useful to look at some actual court decisions to see examples of judges' reasoning. Sometimes there isn't an obvious answer. If law was always straightforward, trials would be simpler and we wouldn't have so many appeals.

This area of law is especially complicated.

I would recommend getting a a basic understanding of what the law definitely does/does not cover. From there, you have some flexibility.

James D. Macdonald
06-17-2016, 08:06 PM
I recommend going to your local library, finding the True Crime shelf, and reading every book on that shelf.

I'm still trying to figure out what kind of crime could happen entirely in a hermetically sealed box, never impinging in any way on any public space.