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Legal question: Search Warrant


Widder, SASS #59054

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If a person is killed (either the victim or the killer) and they live alone, does the police (or investigating authority) need a Search Warrant

to enter their premise?

 

If a Search Warrant is required, who will it be served ?

 

..........Widder

 

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In most every state the answer would be yes, and a copy left at the property or with a court appointed attorney.  But in most cases there is family, sometimes distant or hard to find.  The law still exist in every state & in the US Constitution bill of rights regarding lawful search & seizure.

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My recollection is that if they have evidence of their senses that a crime is in process they have probable cause and can enter without a warrant.  They would require a warrant to actually search the premises.  Probably outdated.

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In Colorado, no, unless a crime is suspected.  We investigated every death not attended by a physician as a "death of undetermined origin" in case there was foul play.  We did not need a warrant, but if we found something causing us to believe the death was suspicious, we would have to stop and get a warrant.

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Just now, Larsen E. Pettifogger, SASS #32933 said:

The dead do not have constitutional rights.

Their heirs do & will not hesitate to sue your butt off if you violate them, I saw it in my courtroom.  Also, the law in most every state covers the heirs of the deceased party.  The LEO's can enter but without a warrant they can't open drawers, closets, or anything locked.  they can only look as the eyes cannot commit a trespass.  Once the warrant is issued (which most judges will sign off on) then they can delve deeper into the personal effects on the property.  That will be the question for a court if either a civil or criminal suit is filed against the police, or the evidence is offered in court

 

The Fourth Amendment protects you from “unreasonable” searches and seizures. What is unreasonable can be based on the way the search was done. However, the conduct has to be extreme, and few Courts have found something sufficiently offensive to be considered unreasonable. An exception is a Supreme Court case where they held a forced surgery to remove a bullet so it could be used for evidence, which was unreasonable. While the situation here doesn’t involve the infliction of pain or the invasion of the body, it does violate the right to dignity and is something that almost all people would consider morally offensive.

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Larsen E. Pettifogger, SASS #32933

Heirs and the dead are not the same.

 

One last comment:

 

301.12.1
Question the Search/Search Warrant
Most attorneys will question how the physical evidence was obtained as a basic rule of criminal defense. It is
essential that the investigator be able to demonstrate that any and all evidence was legally obtained. Thus, any
warrantless searches may be challenged and must be justifiable. It is always preferable to secure a search
warrant before searching. Remember, there is no homicide exception to the requirement for a search warrant.
All searches resulting from a warrant must stand up to legal scrutiny. To be legal a search warrant must:
· be based on probable cause,
· be specific as to who, what, where is to be searched,
· be signed by a neutral magistrate.

 

I hope that answers the question.

 

Charlie

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After normal business hours or on holidays, State's Attorneys/Prosecuting Attorneys will have a lawyer on call should such an issue arise. Call them and tell them the facts and they will guide you. I worked five counties and each one was it's own little kingdom, so asking  that county's prosecutor just made sense.

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Again - probable cause to enter to find a body if any just can't do extensive search for anything other than a body or object in plain sight, & yes as Rip Snorter said - call the coroner.

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Still like the old joke about a cop at the front and back door.

 

Front door cop yells "Police, Open the Door!"

 

Back door cop yells back, "Come on in!"

 

Honest sarge, somebody said to come in!

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