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No Fourth Amendment Exception to Murder Scenes

Posted on Tuesday, November 01, 2011 at 12:00PM
Posted by TERRY BOWMAN

Most exceptions to the warrant requirement are ingrained into every peace officer’s brain. For example, you understand and recognize that no warrant is required when there is consent, when items are in plain view or when there are exigent circumstances. Additionally, the crime of homicide will nearly always constitute an emergency and justify law enforcement’s initial, warrantless entry into the scene.

However, recently we have encountered confusion about whether officers need a warrant to process a murder scene. In other words, a homicide has occurred in the suspect’s home and a protective sweep has been conducted that reveals no evidence in plain view. Now, homicide investigators need to get to work and the crime scene needs to be processed. Do the officers need either the suspect’s consent or a search warrant to process the crime scene? You bet. The three main United States Supreme Court cases are summarized below:

  1. These warrants are based on a U.S. Supreme Court case (Mincey v. Arizona (1978) 437 U.S. 385) and are often referred to as “Mincey warrants.” Mincey murdered an undercover narcotics officer and homicide detectives ripped up carpets and collected 200 to 300 pieces of evidence over a four-day search of the home. The Supreme Court found no exigent circumstances and no indication that evidence would be lost, destroyed or removed during the time required to obtain a search warrant and concluded that the seriousness of the offense under investigation does not create exigent circumstances.
  2. In Thompson v. Louisiana (1984) 469 U.S. 17, a woman killed her husband and attempted suicide (with pills), then changed her mind and called her daughter for help. Sheriff’s deputies were admitted into the home by the daughter, and they transported the suspect to the hospital and secured the scene. Thirty-five minutes later, homicide investigators arrived at the house and conducted a two-hour “exploratory” search of the home, during which they found evidentiary items. The Court found that while the homicide investigators may have had probable cause to search the premises, there was no exception to the warrant requirement and the evidence was suppressed.
  3. In Flippo v. West Virginia (1999) 98 U.S. 8770, a minister vacationing with his wife at a cabin in a state park called 911 to report that they had been attacked. The police arrived and found the minister, with minor injuries, waiting outside the cabin. The officers entered the cabin and found the body of the minister’s wife, with fatal head wounds. The officers closed off the area and took the minister to the hospital. When a police photographer arrived several hours later, the officers re-entered the home and proceeded to “process the crime scene.” For over 16 hours, they took photographs, collected evidence and searched through the contents of the cabin. During the search, photographs of the minister’s gay lover were discovered in a briefcase and were introduced as evidence of motive in the subsequent homicide trial. The State Court’s finding that the search was valid because it was a “homicide crime scene” was ultimately overturned by the U.S. Supreme Court because it conflicted with Mincey.

To summarize, a murderer is still entitled to a “reasonable expectation of privacy.” So, while the police may make warrantless entries if they reasonably believe a person needs immediate aid and may make a protective sweep, a search is not constitutionally permissible simply because a homicide recently occurred on the premises.

ABOUT THE AUTHOUR: Terry Lynn Bowman is a Partner in the Legal Defense of Peace Officers Practice Group and in the Criminal Defense Practice Group. Bowman is the Managing Partner of the firm’s San Jose office. She represents public safety officers in administrative, disciplinary and criminal defense matters. Bowman has immense trial experience, having tried over 50 cases during her seven years as a Prosecutor for Santa Clara County, where she handled a variety of cases, including homicides and sexual assaults. Her high success rate and ability to handle complex legal issues led to her being named Trial Attorney of the Year in 2000.

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