Drop the Pen! What Every Writer Should Know About Real Police Work
Search Warrants Under a Magnifying Glass
My wife and I watch a streaming series called Joe Pickett about a game warden solving homicides in Wyoming, based on the exceptional novels by C.J. Box. Game Warden Pickett is an honest cop, savvy about woodcraft, less so about the politics and back-door deals of the world. He evidently patrols the most dangerous forest in the world, because someone ends up murdered in every book in the series and in each season of the televised program.
I have to suspend some disbelief when I watch the show, however, because our good Game Warden Pickett seemingly has never heard of a search warrant. He’ll go in any tent, rifle through any pickup truck, and stick his nose in just about any hunter’s cabin if it means finding the truth. Our hero is out there in the woods alone, except for the fauna he protects, and lurking bad guys. Leaving a possible crime scene in the woods to get a judge to sign a search warrant for an ominous tent or a suspicious backpack means evidence might disappear and murderers will get away.
Which is an understandable dilemma, but in legal terms this is what defense attorneys call a “no-no.” How you tackle the gray areas of fictional law enforcement depends on what you’re writing, the circumstances in the case, and your own literary voice. My job is to make sure you know the rules, so that you’ll know the stakes when you opt to break them.
Search warrants are by far the most asked about topic I receive when writers reach out for feedback on their mystery/thriller novels or screenplays, or when I’m speaking at writers’ conferences. Writers know it is a subject they need to get right before sending a novel to agents or publishers, but high school civics was a long time ago for a lot of us. A review is in order.
Search warrants are a fundamental part of our governmental system of checks and balances. They’re a safeguard against executive branch overreach into places any reasonable person would consider private including homes, cars, computer hard drives, cell phones, and even our own bodies. We didn’t like it one bit when British redcoats kicked in our front door and rummaged around looking for evidence that we hadn’t paid a stamp tax or for contraband rum just delivered by the friendly neighborhood smuggler. So, way back in 1791 we passed and ratified the Fourth Amendment to guard against such intrusion:
The right of the people to secure in their person’s, houses, papers, and effects shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.
Which means, if police officers want to enter your home or other places you consider private, they can only do so with a warrant they’ve obtained by swearing to a judge that what they’re asking to search has to do with a criminal investigation, and that the evidence they’re basing that request on applies directly to the case. There are no search warrants granted for “gut feelings.”
There are a couple of exceptions to the warrant requirement. The first is for the owner of private property to give permission for officers to search the item or place in question. It’s kind of like the rule for vampires. Cops can’t come in until they’re invited. The irony of that analogy isn’t lost on me.
The other way police officers can enter private property without a warrant is through exigent (emergency) circumstances. Such circumstances allow police officers to enter a private place if there is a reasonable concern someone within is hurt and needs emergency medical care and/or there is an immediate threat to lives or evidence posed by some thing or some person within the home.
Let’s say a woman calls 911 to report violence in the apartment next door. She can hear a screaming female and a man growling threats. The sounds of glass breaking and furniture toppling reverberates through the apartment walls, and the caller frantically tells the dispatcher, “The cops better hurry before somebody gets killed.”
Responding officers arrive in time to hear the violence still occurring within the apartment, so they will enter the domicile based on the exigent need to stop the violence and prevent further harm. Once inside, they spot a woman unconscious on the floor, bleeding from a head wound. EMS will be summoned, and first aid will commence.
Meanwhile, the angry man heard by the 911 caller is nowhere in sight. It’s plausible he’s hiding in the apartment, which poses a continuation of the exigent threat. Officers will keep looking for the other party until they’re sure everyone in that apartment is accounted for.
In our scenario, two officers searching for the suspect walk into a bathroom, only to discover there is a methamphetamine lab bubbling in the bathtub. This discovery will result in a whole new direction for the investigation, but for now the focus remains on scene safety.
Only after the scene is made safe and the injured woman is on her way to the hospital will the new investigation into the meth lab kick into gear. Narcotics officers will be called in, as well as fire department personnel, to mitigate any danger from a fire or an explosion in the illicit lab. The scene will get quiet, because there isn’t much else to do until a signed search warrant arrives. Anyone still inside the apartment will be ushered out, and uniformed officers will be stationed at entrances to guard against someone going back in and tampering with evidence.
A detective will then write a search warrant affidavit. The affidavit is designed to tell a story about how the investigation came about in the first place, what evidence has been secured in the case thus far, why the investigators believe there is more evidence to be discovered, and how they plan to go about finding it. The affidavit in our case, for example, would detail how officers were dispatched based on a frantic 911 call, that the officers intervened to stop violence, that a man suspected of rendering his wife unconscious hid from officers, and that officers searching for that man in the apartment spied a meth lab during efforts to find him.
The detective writing the affidavit would then spell out exactly what the department personnel will be looking for as they search. Such a list in this case would include supplies used in the manufacture of the drug such as chemicals, heating elements, measuring cups, beakers, etc.
Once the affidavit is completed and edited (yes, cops edit each other), an investigator must find a judge to sign the warrant. This can be a chokepoint if the judge is currently presiding over a hearing or trial, or if circumstances of the case necessitate the warrant be signed in the middle of the night. Most judges are patient and personable. A few are arrogant jerks, but detectives learn quickly who to approach and who to avoid when going to get a signature.
The “Affiant,” is the person making the request of the court. The detective affiant in our fictional case must raise her right hand and swear to tell the truth during the meeting with the judge, an oath which carries the same perjury consequences as a witness at trial if that detective lies. Most judges ask investigators to tell the story first, so they have some idea of what they’ll see in the warrant affidavit, and then they’ll read the actual document. This can take a few minutes, so good detectives steel themselves to wait quietly while the judge reviews their work like a tenth-grade English teacher reading your “What I Did Over the Summer” essay.
The judge will sign two documents. The first is the affidavit, which spelled out the story in detail. The second is the warrant itself, a comparatively sparse document that simply says officers from Department X are allowed to search the apartment during a specified time period for the purposes of a criminal investigation. The actual details beyond the general nature of the crime being investigated are left off the document. Officers must show the actual warrant to the property owner (the Respondent), but they can withhold the affidavit with all the juicy details for now in order to preserve the ongoing investigation. All the facts will be shared with the suspect and his attorney later, but for now it’s best to keep some specifics secret as detectives work to find witnesses and other related evidence.
The apartment springs back to life as soon as the warrant arrives on scene. By then, everyone on the investigative team will know their assignment. Crime Scene Techs will start the process of photographing and collecting evidence (we’ll go into greater detail about this in a future column), and investigating officers will go to assigned or agreed upon areas of the apartment to search.
Evidence will be photographed and labeled before being sent for processing (DNA, fingerprints, identification of unknown substances, etc.). The search will continue until the lead detective on the case deems the team has completed the objectives listed in the warrant. A copy of the search warrant is left in plain sight, often on a coffee table or kitchen counter, along with an inventory sheet of everything taken from the home.
Now, let’s say the investigating officers find a computer in the apartment. That computer will likely be seized as well because it may contain evidentiary information such as search engine research into how to make methamphetamine, lists of ingredients needed for such manufacture, emails to and from potential buyers or sellers of contraband, and even photos of the suspect smoking or injecting the product they created.
My recommendation is always to get an additional warrant for things like computers and cell phones. Yes, you might be covered in some jurisdictions based solely on the search warrant you gained for the crime scene. However, any evidence discovered in the computer will be challenged in court if there wasn’t a warrant specific to that private area. It’s prudent to simply get another warrant for each additional place to be searched. This would apply as well to remote storage buildings owned or rented by the suspects, cell phones, and cars.
Novelists and screenwriters often take liberties when it comes to criminal investigations. You may choose to do that as well, if a bit of fudging better fits the tone and narrative of your work. I’m just here to make sure you know the background so you can make informed decisions as you plot your future bestseller. I bid you luck and joy in crafting your own literary murder forest, packed full of dangerous, two-legged beasts and riddled with places to hide a body. Onward.
David “D.L.” Williams is a public safety veteran with assignments including paramedicine, patrol in high-need areas, helicopter rescue, mental health liaison, and violent crime investigations as a detective. During his thirty-year career, Williams was twice named Officer of the Year by the Fraternal Order of Police, and he has been recognized by Rotary Club, the American Legion, and the National Coalition Against Sexual Violence for his work with families and children in crisis. He now teaches criminology at the University of Arkansas, and he is the bestselling author of Fighting for Her Life: What to do When Someone You Know is Being Abused and Textbooks, Not Targets: How to Prevent School Shootings in Your Community. He and his family have settled in the Ozark Mountains where they offer a haven for donkeys and horses who previously endured a rough life.
