Yesterday morning, sheriff’s deputies found two teen-agers dead in a Littleton, Colo., sandwich shop. According to the story on MSNBC.com, “They determined the teens were dead, left the shop and awaited a search warrant, and re-entered the store again about six hours later.” Do you really need to get a warrant to search a scene where you’ve just found two dead bodies?
Answer: almost surely not. The requirement for a search warrant comes from the Fourth Amendment to the U.S. Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” The courts have interpreted the requirement for “probable cause” (i.e., a good reason) more strictly than the requirement for an actual “warrant” (i.e., official permission from a judge or magistrate) and have interpreted both to apply only where there is a “reasonable expectation of privacy.” This would include your home or your hotel room, but probably not a store open to the public. The warrant requirement also doesn’t apply in a public emergency, which certainly includes finding two dead teen-agers.
But the Jefferson County (Colorado) sheriff has a policy of obtaining a warrant before investigating murder scenes when there are no survivors and no obvious suspects. (In other words, when there is no obvious need for haste.) Police tend to be cautious about gathering evidence in murder cases, since evidence collected in what turns out to be an illegal search, or illegally seized in a legal search, is inadmissible in court.
Explainer thanks Professor Mary Cheh of the George Washington University Law School.
