Searches and Arrests

by Keyser Söze

This article was prompted by the piece titled "Avoiding Suspicion" by ~Me in the Spring 1996 issue.

There were a number of things legally wrong with it, and instead of ripping it apart, I figured I'd just tell you what the law is.

Note:  I am a licensed attorney (so this is the real thing), and am writing under this alias for what should be obvious reasons.  This article in no way gives legal advice; it merely points out what the law is, what the police can legally do to you, and what your rights are.  Any words in quotes are from actual cases, the details of which I won't bore you with.

Searches

Probable Cause

This is what the police need in order to search you.  Probable cause is a "reasonable belief" (by the cops) that what they have found is evidence of a crime.  This can be evidence of any crime, not just for the crime they're currently investigating.

Searching Your House, Apartment, etc.

In order for the police to search your place, they need a search warrant.  A search warrant contains three things (if you care to read it, and you should, to make sure that it is a search warrant, and that the information on it is correct): the crime committed, the evidence they're looking for, and the location that they're going to search.  The location covers basic stuff such as your name and address (as well as the specific location in the home where they're going to be looking) - if either one of these are wrong, call them on it because there could, for example, be another person named "Smith" in your building, and they just got the wrong one.

The police can look anywhere the thing they are looking for will reasonably fit.  The smaller the item is, the more places they can look.  For example, cops can look just about anywhere for drugs (since drugs can be put into small packages and hidden anywhere), but they're not going to look in the toilet tank for a stolen TV (because it won't fit).  They can also seize anything that's found in plain view, like on a table, regardless of whether the warrant mentions that item.

Just a little bit about "no-knock" warrants.  There are only three instances when the cops can bust down your door when they have a search warrant: if there's a danger of escape, if there's a possibility of evidence destruction (like flushing something down the toilet or erasing a disk, though the computer-based reasons like erasing disks, etc. have not been tested in court, it seems likely to me it could be a valid reason), or if there's likely to be a danger to the officers present.

Searching Your Car

An officer still needs probable cause to search your car, but does not need a search warrant.  Once he has probable cause to search the car, he can go anywhere in the car, including the trunk and any packages in the car.

If your car happens to be impounded and taken to an impound lot and the contents are inventoried, the cops don't need probable cause.  They can seize anything they find that's evidence.

Stopping You on the Street

This is what's known as a "stop and frisk."  You can be stopped and questioned by the police on the street if they have a "reason to suspect" that there is "imminent criminality."  This is sort of a gut-instinct type of call by the observing officer - if he thinks you might be up to something, he can stop you and ask you questions.

Whether or not you'll be frisked depends on the situation you're in; basically it's the officer's call.  A frisk is the "patting down of exterior clothing."  If the cop finds something suspicious, he suddenly has probable cause and can search you on the spot, or arrest you if it's that bad.

Arrests

An Arrest in Your Home

In order for you to be arrested in your own home, the police need an arrest warrant, which states what crime was committed and who they think did it.  If the police have an arrest warrant, any evidence in plain view can be seized.  (They don't need a search warrant for stuff in plain view in this case, because the arrest warrant got them into the home legally.)

If you are arrested, the cops can search you and any area within your "immediate lunge, reach, or grasp."  Basically, this means that they can only search the area where you could reasonably reach to destroy evidence or grab a concealed weapon.  This usually limits the search in this case to the room in which you're arrested.  The only time the cops can search the rest of the home without a search warrant is if they've come to arrest someone else in addition to you; then they can look wherever that person could hide.

An Arrest in Someone Else's Home

The police must have a search warrant to enter someone else's home to arrest you if you're there and not in your own home.  (This is in addition to the arrest warrant for you.)  An exception in this case is if you're fleeing and they follow you into that person's home - then they don't need a search warrant.

Post-Arrest Stuff

Miranda Warnings

We've all seen this in cop TV shows or movies: when someone is arrested, the cops read them their rights.  Believe it or not, this is not required at the time of arrest.  It's been drummed into our heads for so long that we think they got it right, but they didn't.  You only need to be read your rights when you are undergoing "custodial interrogation."

"Custody" is defined as being under "any significant restraint" or being placed in a "compelling atmosphere" where you might involuntarily waive your rights.  Basically, this means that you've been arrested; you can be in a police car or at the police station.  "Interrogation" is not limited to questioning; it covers any statements made by another person which "might reasonably elicit an incriminating response."  An example of this would be if two other people were talking and they say something that you would usually respond to; just keep quiet (see below).  This can be done by anyone at any time.

Before the police can question you, they must read you your rights, Those rights are:

1.)  You have the right to remain silent.

2.)  Anything said can and will be used against you in court.

3.)  You have the right to consult with an attorney prior to questioning.

4.)  You have the right to have an attorney present during questioning.

5.)  You have the right to an appointed attorney if one cannot be retained (the court will appoint an attorney to you if you can't afford one).

Numbers three and four may be combined into one statement that is read to you, but it's easier to grasp if they're separated.

Invoking Your Rights

Now that you know your rights, how are they enforced?  Very simple: after you've been read your rights, tell them that you wish to speak to an attorney.  Once you've told them that, they cannot question you, and they can't come back before you've spoken to an attorney to ask you any questions.  So the best thing for you to do is to keep quiet until you've spoken to an attorney.  And do not do what The Prophet suggested (Letters, Spring 1996) and lie; think about it - you're in deep shit already and lying always makes things worse for you.  I'll repeat it because it's that important: keep quiet until you've spoken to an attorney.

Things That Don't Violate Your Rights

There are certain things that can be done after you've been arrested that do not violate your rights, even though these things seem like they would.  They include: taking your picture, fingerprinting you, taking your measurements, getting a handwriting sample, having you speak a certain phrase, or moving around in a certain way (like with a limp).

Generally speaking, that's it.  There's obviously a great deal more to this subject, but you don't really need to know all the nuances.  Just knowing what rules the cops play under and what your rights are should be sufficient.

I'm thinking about doing an article about computer crime laws (these laws usually cover telephony issues as well), and if this article doesn't get my head taken off, you should see it in the near future.