The Mn Criminal Defense, Personal Injury & Family Law Blog
Search Warrant Exceptions in Buffalo: Hollywood Style
July 14, 2018
In the 1971 movie Dirty Harry, iconic antihero Harry Callaghan tries to hunt down Scorpio, a serial killer. At one point, he pursues Scorpio on foot, arresting him and seizing a murder weapon (a hunting rifle) during the course of the chase.
Apropos of nothing, writers based the character of Scorpio on the Zodiac Killer. This real-life serial killer in the San Francisco area claimed a number of victims from the late 1960s to the early 1970s. He (or she) was never captured.
Back to the blog. In a conferenceshortly after Scorpio’s arrest, the District Attorney informs our intrepid San Francisco Police Inspector that the evidence he seized would be inadmissible in court. This clip shows how much criminal law has changed over the last fifty years. Dirty Harry needed a search warrant in 1971. But today’s Buffalo Police officers, whether they are clean, dirty, or somewhere in between, can rely on a number of warrant exceptions.
When Inspector Callaghan seized the rifle, he could clearly see it because it was out in the open. Today, the plain view exception is one of the most common search warrant exceptions in Wright County. If officers see contraband, they may grab it. They do not need warrants or even probable cause.
There are some limitations. Uncertain plain view seizures are sometimes an issue. For example, a white, powdery substance could be heroin or could be lots of other things. Furthermore, the officer must have a right to be in the place at that time.
That last limitation might have been an issue in the Dirty Harry/Scorpio seizure. It’s not entirely clear whether or not Harry had the right to be in Scorpio’s apartment when Harry grabbed the hunting rifle. Procedural questions like these may seem like insignificant details. But in a Buffalo criminal prosecution, they can be the difference between a guilty verdict and a case dismissal.
Exigent Circumstances ”Hot Pursuit”
Harry had reason to believe that a woman was in trouble in a place that Scorpio controlled. If a court agreed, the exigent circumstances exception may have applied. In the real world, this exception is also called the “safety check” inspection. If officers believe that someone is in danger in a building, perhaps due to a report of shots fired or a gas leak, they have the right to enter said building without a warrant. Furthermore, they have a right to search the building and make sure that everyone is okay. Obviously, they also have a right to seize contraband in their plain view.
Sometimes, officers get carried away. If there’s a small fire in the house, officers probably need a warrant before they enter a detached garage.
The “hot pursuit” exception is much the same. If officers chase a fleeing suspect who enters a building for shelter, they do not need to break off the chase and get a warrant to enter that structure. They may maintain their “hot pursuit.”
This exception might have been Dirty Harry’s saving grace. He was chasing Scorpio on foot when he saw and grabbed the hunting rifle.
After his arrest, Scorpio “confessed” to the crime. At the time, very strict rules applied to confessions. Harry (or another officer) apparently told Scorpio that police had the hunting rifle and it would be used against him, and that fact convinced Scorpio to confess. Without said rifle, said confession was considered coerced.
Consent is much the same. Back in the day, officers needed specific permission from a record owner to search without a warrant. Today, Buffalo officers only need general consent from someone who has apparent authority.
A roommate may have apparent authority to allow a dwelling search, even if the roommate is not technically on the lease. However, the same analysis does not apply to a passenger in a car. Vehicle passengers are almost never vehicle owners.
Search Incident to Arrest
If Harry had arrested Scorpio in 2001 instead of 1971, he would have had broad powers to search Scorpio’s apartment. For about thirty years, officers could “arrest” suspects for outstanding traffic warrants, speeding, and other seemingly minor offenses. Then, they could literally tear their vehicles or dwellings apart to search for contraband.
But in 2009’s Arizona v. Gant, the Supreme Court limited these warrantless searches to weapons pat-downs. So, this exception is not used very much anymore.
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