Adding Criminal Law and Procedure to Your Fiction

Part I: Search and Seizure

For my novels about a female prosecutor, much of the “legal research” is in my head from a career in criminal justice and the court system. Police work and courtroom drama are great for building suspense. I also strive for accuracy under the law.

Authors: Should you be concerned with accuracy? After all, you’re writing fiction. If you get it wrong, the lawyers and law enforcement professionals reading your stories are likely to notice—but does that matter? I actually enjoy jumping off the living room couch and yelling “Objection!” at the abominable mistakes of TV lawyers. It’s kind of fun.

Here’s an interesting article (click here) by a seasoned police officer who finds the character Detective Danny Reagan in Blue Bloods to be outlandishly unrealistic. Danny’s sister, Manhattan prosecutor Erin Reagan, is continually reining him in. I find that Erin, who’s very by-the-book, usually gets the law right. The filming locations also take me on a trip down memory lane. Erin’s trial bureau looks very much like mine did at 80 Centre Street, but she seems to be prosecuting her cases in the wrong court—the civil courthouse at 60 Centre Street, a much prettier building than the real Criminal Court Building at 100 Centre with its bizarre ziggurat. (Now, there’s a word for you.)

It’s your choice, but there’s something to be said for doing your legal research. Today’s savvy reader has a basic understanding of legal concepts. Probable cause. Miranda rights. Accuracy and detail could boost your creds. Obvious mistakes could turn some people off. Could. We don’t know. As I said, I kind of enjoy them. If nothing else, reading up on criminal law and procedure can give you some great ideas for your crime stories and novels.

In this series of three articles, I’ll pose fictional scenarios and tie them to principles of criminal law and procedure under New York and U.S. Constitutional law. I’ll also give you a few links to helpful websites. Today, Search and Seizure. August 13: Stop and Frisk, Arrest, Identification Procedures, and Indictment. August 20: Guilty Plea and Trial.

The Fourth Amendment to the U.S. Constitution protects us against unreasonable searches by government officials. Search warrants must be based on probable cause. Under the exclusionary rule, evidence collected in violation of this constitutional right is not admissible in court.

If you want the evidence in your story to be admissible against your fictional suspect, remember a few things: Is there a reasonable expectation of privacy in the area searched? Was a warrant properly obtained, or is there an exception to the warrant requirement?

Crime Scene I:

Police Officers, without a warrant or exigent circumstances, search Sheila’s house, just because they’ve seen her with Bob, a suspected narcotics kingpin. While there, they seize a piece of paper that Bob left behind on his last visit—a cryptic note of narcotics deliveries.

Admissible against Bob: The Fourth Amendment right is personal. Bob doesn’t have a “legitimate expectation of privacy” in Sheila’s house and doesn’t have “standing” to contest the illegal search.

Note: Here are some other great places to collect evidence against a suspect who has no legitimate expectation of privacy: Suspect’s garbage; phone numbers the suspect dialed (pen register); smells detected by a trained police dog; a car in which the suspect is merely a passenger.

Fruit of the Poisonous Tree

The U.S. Supreme Court first coined this colorful phrase in 1939. Generally, where an ostensibly legal search is based on information obtained through illegal means, the evidence seized is tainted and inadmissible.

Crime Scene II: Detective X arrests Suspect A for a jewelry heist, without probable cause or Miranda warnings. Hoping for favorable treatment, Suspect A rats on Suspect B as the mastermind who came up with the elaborate plans for the heist. Detective X applies for a search warrant, omitting any reference to his unlawful methods. The plans for the heist are seized from Suspect B’s house pursuant to the warrant.

Inadmissible: Although the search warrant looks legit on its face, the evidence is tainted by Detective X’s unlawful methods in obtaining the information for the warrant.

Note: Exceptions to poisonous tree may come into play if the purpose of the exclusionary rule—to deter unlawful police conduct—is not present. Basically, the evidence might be admissible if it was discovered, or inevitably would have been discovered, by means independent of the taint, or if the officers conducting the search acted in good faith without knowledge of the taint.

Plain View

When police are lawfully in a location where evidence is in plain view, they may seize it without a search warrant. The incriminating nature of the evidence must be immediately apparent, and the police must have a lawful right of access to the object.

Crime Scene III:

Detectives obtained a search warrant specifying that they may search a house for evidence of an illicit firearms business. While executing the warrant, they find a cache of automatic weapons in a bedroom and several plastic-sealed pounds of cocaine in a clothes closet.

Admissible: If the warrant authorizes them to search every part of the house, the drugs are in plain view where they are lawfully present.

Vehicle Exceptions

Searches of vehicles and closed containers within them may fall under a variety of exceptions to the warrant requirement, commonly called the “automobile exception,” “search incident to arrest” and “inventory search.” The analysis can differ under the U.S. Constitution and N.Y. Constitution, and sometimes the reasoning does not seem to fit reality (i.e. a diminished expectation of privacy in vehicles and the exigency posed by the mobility of vehicles). That said, the police cannot search a car just because it’s a car.

For your purposes, if you want the evidence seized from a vehicle to be admissible against your fictional perp, you will be in the legal ballpark if you remember these things:  An objectively legitimate reason for stopping the car; probable cause to believe it contains evidence or contraband; a search limited in scope to the specific circumstances.

Crime Scene IV-a:

Anne has a criminal record a mile long and your Police Officers have a hunch (no evidence) that she abducted and murdered someone. They tail her car, hoping she’ll commit a traffic offense, and lo and behold, she runs a red light (really). They pull her over and smell marijuana. They tell her to step out. They search the glove box and find a baggie of marijuana and the murder weapon.

Admissible: The true motivation of the Officers doesn’t matter if there’s an objectively legitimate basis (i.e. traffic infraction) for pulling her over. A traffic infraction alone does not give probable cause to search, but the smell of marijuana does, and they limited the search to an area likely to contain the marijuana.

Note: Marijuana smell as the sole basis for probable cause is slowly changing, particularly in states that have legalized marijuana, but still seems to hold true in New York. Also, the defense will often challenge the credibility of police witnesses at suppression hearings where minimal stuff like traffic infractions and the smell of marijuana could be a pretext for the stop.

Crime Scene IV-b:

Same as above, except the Officers do not search the inside of the car. They go immediately to the trunk and find a dead body.

Gray area, but most likely inadmissible: The scope of the search exceeds the circumstances (traffic infraction and smell of marijuana).

Crime Scene IV-c:

Same as IV-a, but no marijuana smell. Before any search is made, an Officer, standing at the driver’s side window talking to Anne, sees the butt of a gun sticking out from under the passenger seat.

Admissible: The gun is in plain view when the Officer is lawfully in the area from which it was observed.

Crime Scene V:

Let’s say that Police Officers do have probable cause to believe that Anne has murdered someone and that the murder weapon or other evidence is in her car. They go to her house and find the car unoccupied, parked in the driveway next to the house. Without a warrant, they search the car and find the murder weapon.

Inadmissible: The automobile exception does not allow the police to intrude on the “curtilage” (area immediately surrounding the home) to gather evidence without a warrant.

That’s it for today, folks! Next week, Part II: Stop and Frisk, Arrest, Identification Procedures, and Indictment.

If you’d like a starting point for further research, click on these websites: Nolo, Justia, and FindLaw Legal Dictionary.

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V.S. Kemanis is the author of four legal suspense novels featuring prosecutor Dana Hargrove. In her career as a lawyer, she has worked for the Manhattan District Attorney, the NYS Organized Crime Task Force, the Appellate Division of New York Supreme Court, and appellate judges in New York and Colorado.