Crime scene searches: the need for Fourth Amendment compliance.

On a warm spring day, a despondent woman decided to resolve her overwhelming problems by ending her life and the life of her husband of many years. The woman shot her husband, wrote a suicide note, took an overdose of sleeping pills, and lay down on a bed to await death. After some reflection, however, the woman apparently decided that life was worth living after all. Although it was too late to save her husband, she attempted to save herself by calling her daughter and requesting help. The daughter quickly notified the sheriff's office and rushed to her parents' home.

When sheriff's deputies responded to the call, the daughter admitted them to the scene of the attempted suicide and homicide. The unconscious woman immediately was transported to the hospital, and after completing a search for other victims or suspects, the deputies secured the house. Thirty-five minutes later, homicide investigators arrived on the scene and began a "general exploratory search for evidence of a crime"(1) that lasted approximately 2 hours. During the search, the investigators examined every room of the house and recovered three important items of evidence: a pistol found in a chest of drawers, a torn note found in a bathroom wastepaper basket, and a suicide note tucked inside a Christmas card on top of a chest of drawers.

The woman eventually survived her suicide attempt and was prosecuted for the second-degree murder of her husband. Prior to trial, the woman moved to suppress the three items of evidence found by the homicide investigators during the "exploratory search" of her home. After considerable disagreement in the state courts, the case was ultimately referred to the Supreme Court of the United States. In a short, succinct opinion, the Supreme Court declared in Thompson v. Louisiana that the "exploratory search" was a violation of the Fourth Amendment and ordered that the critical evidence be suppressed.(2)

Although the Supreme Court decided Thompson in 1984, the lessons learned by that decision are as valuable to law enforcement officers today as they were then. With recent advances in evidence detection technology and forensic analysis, crime scene searches have become possibly the most important component in many criminal investigations. Properly conducted, a crime scene search can reveal evidence that allows investigators to reconstruct the crime and identify the perpetrator. Lawfully conducted, a crime scene search can aid in the successful prosecution of those responsible. To lawfully conduct a crime scene search, however, investigators must be extremely careful to follow the dictates of the Fourth Amendment.

This article reviews the requirements of the Fourth Amendment as they apply to crime scene searches and examines the application of these requirements by various courts. Additionally, this article suggests policy considerations for law enforcement agencies routinely involved in crime scene searches.

APPLICABILITY OF SEARCH WARRANT REQUIREMENT TO CRIME SCENES

In Thompson, the Supreme Court based its decision to suppress the evidence on the facts that the homicide investigators did not obtain a search warrant prior to conducting the "exploratory search" of the crime scene and no exception to the warrant requirement existed. On this issue, the Supreme Court was not breaking new ground.

The Court has long held that any time agents of the government intrude into an area where there is a reasonable expectation of privacy, a Fourth Amendment search has occurred that must be justified by either a warrant or one of the exceptions to the warrant requirement.(3) Moreover, in the 1978 case of Mincey v. Arizona,(4) the Court refused to recognize a "crime scene search" as one of the "well-delineated exceptions." As a result, crime scenes are given no special consideration under the Fourth Amendment. If a crime occurs in an area where there is a reasonable expectation of privacy, law enforcement officers are compelled to comply with the dictates of the Fourth Amendment when searching the scene.(5)

CRIME SCENE SEARCH WARRANTS

In Katz v. United States,(6) the Supreme Court created the presumption that all searches conducted without warrants are unreasonable. Because the Court has refused to create a separate set of rules for crime scenes, officers can avoid this presumption only by obtaining a valid warrant prior to conducting any search of an area protected under the Fourth Amendment.

To obtain a valid search warrant, officers must meet two critical requirements of the Fourth Amendment: 1) establish probable cause to believe that the location contains evidence of a crime and 2) particularly describe that evidence. Crime scenes are unique in that their very existence establishes the probable cause necessary to obtain a search warrant. The very fact that a crime has been committed gives officers the reason to believe that evidence of the crime will be located on the scene.

Similarly, the particularity requirement of the Fourth Amendment can be met readily by compiling a list of evidentiary items that normally are associated with the type of criminal activity under investigation. For example, there are certain types of evidence that are likely to be found at the scene of every arson. The arson evidence would vary greatly from the type of evidence that normally would be found at the scene of a sexual assault. To aid officers in making timely application for crime scene search warrants, these generic lists can be compiled in advance by forensic teams.

EXCEPTIONS APPLICABLE TO CRIME SCENES

Because of the nature of many crimes, particularly violent crimes, law enforcement officers often do not have sufficient time to obtain search warrants before making initial entries into crime scenes. Consequently, officers are forced to rely on exceptions to the warrant requirement to justify these searches. The most often relied upon justifications are the consent and emergency exceptions.

Consent

The consent exception is often a viable option for officers responding to a crime scene. In order for the crime scene search to be constitutional, consent must be given voluntarily by a person reasonably believed by law enforcement officers to have lawful access and control over the premises.(7) In many instances, the individual who has summoned the police to the scene is someone who can consent to a search of the area. However, officers should not assume that the person who requests their assistance or meets them at the door has the authority to consent to the search.

In Thompson, for example, the government could not justify the warrantless search of the house on the theory that the daughter had given her consent.(8) Although she had made the emergency call to the police and let them into the residence, the officers knew the daughter did not live in her parents' home. Therefore, they had no reason to believe that she had the authority to consent to the search.

Officers contemplating using consent to justify the search of a crime scene should ask precise, carefully crafted questions designed to determine whether the person being asked to give their consent has lawful access and control over the area to be searched. Once sufficient information is gathered to allow officers to conclude that the individual has authority over the area, a specific request for consent should be made. If possible, the consent should be written.

Even if officers have other means to justify the search of a crime scene, it may be advantageous to the investigation and ultimate prosecution to request a consent to search. If a lawful consent is obtained, it can serve as an alternative justification in the event that the original means fails. More important, in many cases, the individuals who summoned assistance and have been asked to provide consent also are the persons who committed the crime. The request for consent puts these individuals in an uncomfortable position: if they provide consent, they give the officers the opportunity to find the forensic evidence necessary to convict them; if they refuse consent, they risk drawing suspicion upon themselves.

Emergency

Virtually every crime will constitute an emergency that justifies law enforcement's warrantless entry to the scene. Traditionally, courts have recognized three different types of emergencies: threats to life or safety, destruction or removal of evidence, and escape. It is difficult to imagine a crime scene that would not automatically present officers with the requisite belief(9) that at least one of these exigent circumstances exists to justify, at the very least, a warrantless entry to assess the situation. Problems arise, however, when officers exceed the scope of the particular emergency that justified the initial entry.

The Search Must Not Exceed the Scope of the Emergency

What officers may do, where they may look, and how long they may stay on premises is dictated by the particular exigent circumstances that permit the warrantless entry. Officers are authorized to do whatever is reasonably necessary to resolve the emergency. Once the emergency is resolved, however, the officers' justification for being there is negated, and they must have a warrant or one of the other exceptions to the warrant requirement to either remain on the premises or continue to search.

In United States v. Johnson,(10) police officers in Detroit responded to a report that Angela Skinner, a 14-year old kidnap victim, was being held in the defendant's apartment. The officers' knock on the door was answered by Skinner who confirmed the report and advised the officers that she could not open the door because the defendant, who was not in the apartment at the time, had locked her behind an armored gate. After receiving a supervisor's approval, the officers made a forced entry into the apartment and freed Skinner.

Once freed, Skinner told officers that the defendant had raped her at gunpoint several times and threatened to kill her and her entire family if she attempted to escape. Skinner showed the officers the closet where the defendant kept his weapons. The officers searched the closet and found three guns and a quantity of ammunition, all of which was seized. The remainder of the apartment was not searched at that time.

The defendant, who had a prior felony conviction, was subsequently indicted and prosecuted in federal court on charges of being a convicted felon in possession of weapons and ammunition. A pretrial motion to suppress the evidence found in the closet was filed on behalf of the defendant. The motion argued that the evidence was found during an illegal search of the defendant's apartment. The trial court denied the motion and concluded that the search was justified under the emergency exception and by Skinner's consent.

After entering a conditional guilty plea, the defendant appealed the trial court's failure to suppress the evidence. On review, the United States Court of Appeals for the Sixth Circuit found that Skinner, who did not reside in the apartment, could not leave the apartment, and had no ability to allow anyone into the apartment, did not have sufficient access and control over the area to validate her consent. However, the court found that the entry of the premises was justified under the exigent circumstances presented by the kidnap victim's being held against her will in the apartment.

Although the entry of the premises was lawful, the court concluded that the emergency ended once the officers had released the victim and were assured that neither the defendant nor anyone else who needed their assistance was in the apartment. Thus, entering the closet to retrieve the defendant's weapons exceeded the scope of the emergency search, and the evidence was suppressed.

The decision in Johnson is supported by the Supreme Court's language in Mincey. There the Court stated:

A warrantless search must be 'strictly circumscribed by the exigencies which justify its initiation' ...the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment....The investigation of crime would always be simplified if warrants were unnecessary.(11) (Citations omitted)

Accordingly, officers relying on the emergency exception to justify their warrantless search of a crime scene must be cognizant of the limitations imposed by the particular exigent circumstances and meticulously stay within those limitations.

When justifying a warrantless crime scene search on the emergency exception, law enforcement officers should be careful not to strain credibility by alleging unrealistic exigencies. Similarly, officers cannot allow their actions to belie the existence of a genuine emergency.

In Zimmerman v. State,(12) for example, the defendant called county police to report that he had been stabbed in his own home. The responding officer legitimately entered the premises under the emergency exception and conducted a visual sweep of the premises to determine whether there was anyone else on the premises. During the sweep, the officer noticed a sexually provocative poster of a nude male, as well as several diaries. The officer looked through and subsequently seized the diaries because the entries revealed unlawful sexual behavior.

After being charged with sexual offenses, the defendant moved to suppress the evidence on the grounds that the search of his diaries was unconstitutional. The officer, however, attempted to justify his actions by arguing that the poster gave him reason to think that the defendant was a homosexual and that reading his diaries was necessary to determine whether he suffered from AIDS.

The court found the officers argument to be "imaginative but incredible."(13) After noting that the officer was not concerned enough about the possibility of AIDS to contact any doctors, the court stated that "[the officer's] words whisper one thing while his actions shout another. We hear the shout loud and clear."(14) Consequently, even though the defendant's culpability was "beyond question,"(15) the court was compelled to suppress the evidence.

Investigative Steps Within the Scope of the Emergency Exception

Although officers cannot conduct a full-scale search of a crime scene under the emergency exception, there are certain investigative steps that may lead to the discovery of evidence and fall well within the scope of the exception. For instance, officers arriving on the scene of a violent crime unquestionably can sweep the premises in an effort to locate other victims or the perpetrator if they reasonably suspect that either is present.(16) If a body is found at the scene, taking the medical examiner in to view and collect the body is deemed a reasonable step to resolve the emergency.(17) Similarly, if officers have probable cause to believe a crime scene contains evidence that will be destroyed if not quickly recovered, that evidence may be retrieved as part of the emergency.(18)

Officials arriving on the scene of a fire obviously can enter the premises without a warrant to fight the fire. The emergency is not resolved, however, once the fire has been extinguished. In order to ensure that the fire does not rekindle, officials may remain on the premises for a reasonable period of time to determine the source of the fire. Once the cause has been established, a warrant must be obtained prior to continuing the search for evidence of arson or any other criminal activity.(19)

Preserving a crime scene also is considered reasonable under the emergency exception. Thus, officers may take logical steps, such as securing doors and controlling people on the premises, to guarantee that the scene is not contaminated.

While officers are performing the tasks that are considered reasonable under the emergency exception, any items that they have probable cause to believe constitute evidence of a crime may be seized under the plain view doctrine.(20) Moreover, courts have held that documenting the crime scene through photographs, videotapes, and diagrams does not exceed the scope of the emergency exception.(21)

ESTABLISHING POLICY

Despite the fact that the Supreme Court has declined to carve out a special exception to the Fourth Amendment warrant requirement for crime scenes, many law enforcement agencies do not, as a matter of policy, train officers to obtain warrants or consent prior to conducting in-depth searches of these areas. This deficiency may be attributable to the fact that the persons subsequently charged with the crimes are individuals who have no right of privacy in the crime scene, and thus, have no standing to challenge the lawfulness of the search.(22)

Because officers arriving on the scene of a crime have no way of knowing whether the ultimate defendant is going to be someone with enough authority to object to the search of the scene, the dictates of the Fourth Amendment must be scrupulously honored to ensure the admissibility of evidence. Law enforcement agencies can assist in this regard by having a well-crafted policy designed to provide guidance to officers responding to crime scenes. Policies should include the following:

* Instructions regarding the officers' ability to make a warrantless entry of the crime scene to make an initial assessment of the danger to life or safety and the destructibility of evidence;

* Guidance with respect to the steps that can be taken to resolve the particular emergency, such as protective sweeps, searches for destructible evidence, diagraming, photographing, and videotaping;

* Written consent to conduct a thorough search from a person who has clear authority over the area; and

* A search warrant when consent is denied or there is no one who can provide a clearly lawful consent.

CONCLUSION

Because officers under the intense stress and pressure of a crime scene may overlook the proscriptions of the Fourth Amendment, law enforcement agencies should reinforce the need for warrants through policy. The very fact that a crime was committed on the scene generally provides the requisite probable cause for obtaining a search warrant. Moreover, forensic technicians and crime scene analysts can assist in meeting the particularity requirement of the Fourth Amendment by supplying a list of likely items of evidence to include on the warrant application. By developing policies that emphasize the need for warrants, law enforcement agencies can substantially increase the likelihood of successful prosecutions.

Endnotes

1 105 S. Ct. 409, 410 (1984).

2 Thompson v. Louisiana, 105 S. Ct. 409 (1984).

3 Katz v. United Slates, 88 S. Ct. 507 (1967).

4 98 S. Ct. 2408 (1978).

5 If a crime occurs in a place accessible by the general public or in an area where the Supreme Court has determined there is no reasonable expectation of privacy, such as an open field. the Fourth Amendment is inapplicable, and thus. investigators need not be concerned with the warrant requirement.

6 88 S. Ct. 507 (1967).

7 Illinois v. Rodriguez, 110 S.Ct. 2793 (1990).

8 Although the Court in Thompson stated that consent is a factual issue that they would not decide, it was careful to note that the officers on the scene testified that they were not given consent.

9 Emergencies involving threats to life or safety require a showing of reasonable suspicion. Maryland v. Buie, 110 S. Ct. 1093 (1990). Emergencies involving escape or the destruction or removal of evidence, however, require a showing of probable cause. Warden v. Hayden, 387 U.S. 294 (1967).

10 22 F.2d. 674 (6th Cir. 1994).

11 437 U.S. at 393 (1978) as quoted in Zimmerman v. State, 552 A.2d 47, 49 (Md. App. 1989).

12 552 A.2d 47 (Md. App. 1989).

13 Id. at 49.

14 Id.

15 Id. at 48.

16 See, e.g., Mincey v Arizona, 98 S. Ct. 2408 (1978); Buie v. Maryland, 110 S. Ct. 1093 (1990).

17 Forbes v. State, 1995 WL241722 (Tex. App. 1995) (unreported opinion).

18 See. e.g., Schmerber v. California, 384 U.S. 757 (1966); Kerv. California 374 U.S. 23 (1963) (plurality opinion).

19 See, e.g., Michigan v. Clifford, 464 U.S. 287 (1984)(plurality opinion); Michigan v. Tyler, 436 U.S. 499 (1978).

20 See, e.g., Mincey v. Arizona, 98 S. Ct. 2408 (1978); Horton v. California, 496 U.S. 128 (1990).

21 See, e.g., Forbes v. Slate, 1995 WL 241722 (Tex. App. 1995) (unreported opinion); Urey v. State, 527 So. 2d 7 41 (Ala. App. 1988).

22 Rakas v. Illinois, 439 U.S. 128 (1978).