Expert: Loren Stevens - 8/12/2011

Question
Hi Loren, I'm writing a crime novel and here is my question. I'm an Australian and the novel is set in Australia but I'm sure the law would be similar to the US in this case. An police officer is operating undercover and the suspect who is believed to be involved in a major art fraud crime goes missing. The Undercover officer goes to the suspect's art gallery and finds the door unlocked. She calls out but there is no answer so she (the UC officer) proceeds to look around the premises. She unlocks the safe and finds a pistol and incriminating files. She scans the files with her iPhone and returns the file and the gun to the safe. She removes the SIM card from the suspects cell phone and takes it with her.
The UC officer also goes to the suspects apartment and searches it. Later the suspect is found murdered at another site. The task force is disbanded and Homicide department is now involved. The officer is no longer undercover and revisits the gallery and the apartment legitimately. Would a warrant be required in the first and second instances? And is the scenario plausible? Thanks very much for taking the time to read this email. I would really appreciate your feedback because I want to get it right!   kind regards Gina

Answer
Hello Gina,
Well, your assumption of USA law and Australian law being the same, may be a flawed assumption.

Crash course first, then you can do the requisite comparison analysis with Australian juris prudence.

SEARCHES...in the USA, and excluding the stretch of Immigration, Customs, Border Patrol and Coast Guard....all other law enforcement officers have 4 avenues to proceed with a legal search:
warrant
exigent circumstances
incident to a lawful arrest
consent
The courts take a dim view of circumventing these areas of black-letter law.
ALL USA search issues are essentially framed in the Fourth Amendment of the USA Constitution, housed in the Bill of Rights.

The courts have also given some flexibility in covert operations, as there is a realistic need for the officer to assume some behavioral traits while assuming his assigned role....in order to be credible.....in furtherance, of a criminal Investigation.
But, this is not a blanket pass, in terms of the law.
Typically, evidence, including derivative evidence unlawfully gotten, will be inadmissible....generally referred to as "The Fruits from the Poisonous Tree", and legally referred to as the "Exclusionary Rule"....if you ever want to start a donnybrook between cops/attorneys/judges/prosecutors, throw up the question of the "Exclusionary Rule"......they'll be in the dirt in no time... Issues aplenty...fair to the victim, or victim's family, if an unintentional act by a rooky cop was the sole reason the only critical piece of evidence was excluded....and chat about impact to the abstract of "justice".

OK, on your saga, as I understand it...Given the suspect is suspiciously missing, is cause for a stretch of action...coupled with the UC finding a suspicious open door, with a nexus to the missing suspect...I think the court would look favorably on your cop proceeding to enter, under these conditions, ONLY to look for the missing person, signs readily visible of suggested foul play, or compounding issues....IN PLAIN VIEW.
But, once your heroine starts going beyond "plain-view" cursory scan, and enters safe and files, she has crossed the line, and will inherently step on that evidence potential with BIG FEET.
At the point she was satisfied, that there was no immediate human emergency at the gallery, is the point she should have authored an application for a search warrant affidavit.....if this initiative was too early in the UC initiative, and may compromise a greater good, she would have pulled out, had supporting or 'cover officers' stake-out the Gallery, and for them to proceed on their initiative...which would not involve the UC..
You might be interested in knowing, that when police conduct a search warrant, they tend to take their time, in a meticulous fashion....as when they leave the premises, they should feel it was complete. If they over-looked something, or forgot...they can't re-enter on the initial warrant...Nononono...they need to re-apply for a fresh search warrant, for re-entry. Otherwise, how long would a warrant last, or sunset?...It becomes a way of closing the door on a search warrant. And by the way, cops need to leave a copy of a receipt on all that was seized, and include this receipt with the "return" that goes back to the court.

If you want to review some challenges and troubles with various Undercover or covert operations in police...take a read at the book "UNDERCOVER by Marx.
I don't agree with him on a lot, but he makes legitimate points against most covert police cases.
Hope this is helpful.
Semper Fi,
loren