Search Warrant for Murder Victim's Apt?

Who would they serve the warrant to if the tenant was dead?! Oh of course, you mentioned the landlord.

Nah, I think they could pretty much go in and if the landlord tried to stop them that'd be obstructing justice.

As the scene of the crime, I think they can do pretty much anything they want there. I'm no expert however.

The landlord would merely consent and let them in. I've worked a case where they wouldn't. That's the simplest way to answer your question.

If the victim was murdered there you'd have no problem at all. If the landlord objects (if the murder was committed elsewhere) you can take him in for obstruction of justice. In short: no, you don't need a warrant for the apartment of a dead person with no living relatives in the same house.

Yeah, in reality there is no way the landlord wouldn't consent, so no warrant would be necessary.

When a search is warranted

I'm in the middle of "Scene of the Crime" (A writer's guide to crime scene investigations), by Anne Winngate, PHd, (1992). She states:

My thoughts are:

It's the defense attorney who will certainly object if evidence is not gathered 'by the book.'

Winngate is quick to point out that laws change and vary from location to location. Her advice is to check with local authorities.

*Must be a cop--no PIs, etc.

The defense attorney objects only on behalf of the defendant. THis only applies if the defendant has standing. If that defendant did not reside with the victim, he (she?) would have no expectation of privacy in her residence.

The property owner (the landlord) can give consent.

If they refused - and I can't think of why they might, except total stupidity or having something incriminating in the dead person's apartment like a stash of drugs or concealed cameras in the shower - the cops can just get a warrant. In the meantime, they leave a cop at the scene to keepthings from being disturbed.

RentMyLife said:

So. A character in my screenplay is murdered in the first scene, and he has no known next-of-kin. Would the police detective need a warrant to search his apartment for clues, or would the permission need be given only by the landlord? Any help would be absolutely appreciated. Thanks!

Click to expand...

They don't need a warrant to search a crime scene. Warrants are to protect people who might be charged with a crime from having their own property searched; the victim's property can be searched without a warrant, since searching it doesn't violate the suspect's constitutional rights, and the victim's rights aren't violated by such a search because (1) he/she is not a suspect in any crime (the search isn't being done to find evidence against the victim), and (2), more importantly, he/she is dead. So basically, warrants are for searches of places other than the crime scene. So if they want to search a suspect's apartment and the suspect won't consent, they need a warrant. In this case, say the handyman was a suspect; if the handyman has a workshop in the apartment building the landlord can probably just consent to that search, since the workshop isn't something the handyman leases, it's just where the landlord keeps all the tools and whatnot that the handyman needs for his job. So they could search that with just the landlord's consent. But if the suspect has an apartment there, with a regular lease and his own key, then they need the suspect's consent (or a warrant); the landlord's consent wouldn't suffice.

Things get slightly (but not very) complicated when the crime scene IS the suspect's property, such as where someone is killed in their home and their live-in partner or spouse is a suspect. But it doesn't sound like that's your situation.

Soccer Mom said:

The defense attorney objects only on behalf of the defendant. THis only applies if the defendant has standing. If that defendant did not reside with the victim, he (she?) would have no expectation of privacy in her residence.

Click to expand...

Right. Exactly. As a general rule, the defendant can only object to warrantless searches of HIS OWN property (house, car, etc.). Of course, he doesn't have to own the property; leased/rented property is covered just the same as owned property, and there are even some rights in murkier situations, such as if he's staying with friends of his who have given him a room as "his room." It's possible, though not anywhere near a slam-dunk, that he could object to a search of "his room" even when he wasn't paying any rent on it, but just staying in a room at a friend's house.

To add to what everyone else has (correctly) said: This all has to do with 4th Amendment rights. If the police do search someplace without a warrant and without an exception to the warrant requirement, and they turn up some evidence, the suspect whose 4th Amendment rights were violated may have the evidence excluded as a remedy. That remedy is not a constitutionally prescribed remedy, it is something the courts came up with.

In your situation, the suspect had no reasonable expectation of privacy because it was not his residence being searched. Therefore no 4th Amendment violation. Therefore no exclusion remedy.

Clear as mud?

If the corpse is found in the rented proprty, the landlord would be yelling for the cops to come take over.

(been there, done that, have the valium bills to prove it)

RobD7 said:

There are rules of evidence that dictate how a crime scene, and any evidence found, is handled. As long as the cops have reasonable right to be there, no warrant is necessary. By reasonable I mean, invited by the landlord, called by a neighbor to investigate shots fired or a horrible smell, or the officer observes something with his own senses like he hears shots fired, or hears someone screaming…

Click to expand...

True. I do want to add, though, that even if the cops had no reasonable reason for being there--even if they illegally broke the door down, and then just happened to find a body in there--that makes no difference to the murder defendant in this case, because in this case, the apartment the body is in is not the suspect's. If the cops break into X's apartment and find evidence of any crime committed by X, then X, as the defendant, can seek to have that evidence suppressed (not allowed in at trial). But if they break into X's apartment and find evidence of a crime committed by Y, Y cannot seek to have the evidence suppressed, because the police didn't violate any of **X**'s rights in gathering that evidence. The only person who can get evidence suppressed is the person whose rights were violated.

Things can get complicated--for example, if X loans his apartment (or, say, his car) to Y, and the police search the apartment (or car). Basically, things get complicated when two different people have some possible expectation of privacy in a place that only one of them owns/rents, but the other one is borrowing. So it's not cut and dried, but in this case, it actually is simple: the defendant can't suppress evidence from the crime scene.

People upthread seem to be assuming that the victim was murdered in the apartment and that there were no other residents of the apartment. Neither of these is stated in the original post.

If the victim wasn't murdered in the apartment, the apartment isn't a crime scene. If there are still-living residents, they have the right to refuse a warrantless search even if they are not under suspicion of anything. The landlord and the victim's next of kin may also have some standing to object.

Based on personal experience in California (the police once searched my apartment for evidence of a crime for which a previous tenant was the prime suspect) police investigators are very procedure-minded and want to eliminate any possible chance of having evidence thrown out at trial. They also prefer not to bother judges for search warrants. So I would expect them to begin by requesting permission from anyone who might possibly object - any living tenants, the landlord, and the victim's next of kin.