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  #21  
Old 3 October 2018, 17:40
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Originally Posted by Believeraz View Post
This.
Yep. No Exigent Circumstances based on what you wrote.
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  #22  
Old 25 October 2018, 14:54
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Thanks gentlemen for the advice, as always. I don’t mind the criticism whatsoever, only way to get better. Kinda like those Army AARs, leave your feelings at the door.

On another note, the reason I have a difficult time trusting the other Officer’s judgement:

Round-about the middle of 2016 we had a child sex crime case. Sparing all the details; three small male children (pair of twins 3 yo, older brother 4 yo) were touched inappropriately by their adult male neighbor. I had only been a full time Police Officer about 2 years at this point, and had never handled a case like this. Not tooting my own horn, but through the course of about 3 or 4 months of building trust with the three boys I was able to break the code of silence they had between one another. They told me great details. Where in the house it happened, the day of the week it happened, a description of the camera the shit-bag used, and more (sparing details that need not be released).

I ask Officer Joe for his help all through the process, which he gave me. After gathering all the above information (not to mention he was in/watching the interviews take place) and heard every detail. When the boys each individually told me what happened, I left the interview room with a bit of happiness and a pretty big grin, because I knew we had some very good details and information to send to the prosecutor. I thought for sure the info would lead to something actionable, whatever that was going to be.

Officer Joe met me about 2 steps out of the interview room and after telling the boys’ mother the terrible but great information I was able to gather, Information she was unable to gather. I asked Officer Joe what he thought and he informed me that there’s no way we had enough info to send to a prosecutor; in front of mom. I’ve never seen such dramatic change in mood in my life. She went from total happiness to utter disappointment as soon as Officer Joe started talking to me. We went back into the interview (Joe, me and mom), so Joe could tell mom the official “it’ll take more time to develop this.” As we were all walking into the room and I sat down at the desk, I turned my body camera back on, only to have detective Joe tell me to turn it off, “we don’t need this recorded.” Joe told mom that the boys need to continue going to counseling and if and when more details arise to let us know so we could gather it and maybe it’d be enough to move the case forward.

As mom and the boys were leaving I pulled mom aside and told her I would be stopping by their house on patrol any chance I got to see if any of the information changed. So, for approximately 2(ish) years I did just that. I’d stop, give them my business card with the case number on it, and plead with the parents to call me with any new information. I’d also send an email to mom advising the same. Never heard a word from them. Fast forward to just before the missing juvenile I posted about originally. My Chief called me on the phone, said he was sitting with an agency that started with an F and had two letters following, and explained that the family had made a formal complaint to them that we did not follow through with this case. FUCK! I gave a quick and abbreviated summary of the details as the agency listened while I was on speaker phone.

Ok, they said. I was pissed. I felt I didn’t do enough, I knew I should have went behind Joe’s back, circumvented his decision, and sent it to the prosecutor. What would it have hurt to have the prosecutor (him having immunity) take a look at the details and make the decision. But, when Joe made his decision I looked at my experience vs his (Joe has been a detective for a very long time), and assumed he knew what he was doing. Not to mention I was pretty fresh out of the Army, so I took the chain of command thing pretty seriously. Who was I to question his motives, or decision making process?

I rewatched every minute of every interview with every subject involved. I missed a few body language cues from the boys, but again, I wasn’t very experienced in that art when I initially conducted the interviews. I wrote a supplemental narrative with the new details I’d picked up rewatching the interviews. Doesn’t sound like anything against me (negligence wise) is happening. But, as short as I could, this is why trusting Officer Joe is a difficult decision for me. I did learn some valuable experience from the event:

1. Trust your gut. I hear this said to new officers all the time. But seriously, not sure what happens, but trust that feeling
2. The body tells you more than what’s coming out of someone’s mouth. Some people can lie or not tell you all the details without so much as a smirk. But, those people are few and far between. Watch how people react to questions you know the answers to, see how they tell you the truth, and take note to how they react to the questions they have to look for answers to rather than just telling you their answers. All you experienced Officers know this already, sorry for boring you.
3. Reach out to your prosecutor. Your jurisdiction/city pays him well to advise you on what to do. He has immunity, you don’t, let him/her make the decision.
4. I work for a great Chief, Experienced through and through. Reach out to other leadership in your chain of command. I should have walked into Chief’s office and explained what we had going on. I’m not telling you to do that if you work in a huge department, but seek advice from someone you trust. In my small-town-cop experience, Police work isn’t like the military. It’s not like your 1SG telling the company at PT formation he has a “open-door” policy and PVT-you walk in telling him that you really don’t want to do PT anymore. If your inquiry has merit, I generally feel you’d be fine seeking out other command staff’s opinion on something like this.

The above is one, among many, why I’ve recently decided to move away from Police work full time. In my experience, Cops, NOT Policemen/Police Officers, are difficult people to work with. Constantly complaining about whatever, hating the process of changing. My Chief sold me on changing the culture of Police work. It’s been about 5 years since he sold me on that, but I’ve been unable to see positive change at the small 20 Officer department we have, I had to make a change. It’s a very rewarding career, I learned a bunch about people, about the law, but had a hard time adjusting to cop’s “we’ve always done it this way” culture.

To those that do it every day, thank you. It’s an extremely difficult job, I commend each and everyone of you for doing it. Having to clean up a messy fatal crash, then transitioning into going home and hugging your wife and kids is a difficult process. It’s been said by more experienced members of LE here over and over, make sure you’re ready for this career before you get 10 years into it and go, “shit, this is hard.” The most difficult thing for me was coming from the Infantry world, being around guys (mostly) that strive to be the best they can, to a world where change and asking for a better solution is frowned upon. I’m not saying all PDs are this way, not in the least bit. Mostly, there are some kick ass Officers and Departments in our Country, work hard to get there or make your department that way.

Be careful out there folks. Thanks for your service!
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  #23  
Old 25 October 2018, 18:26
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I think the lack of exigency goes back to the first paragraph. The kid was gone for 24 or more hours. If she was so worried about his depression she should have reported him missing ASAP.

For exigency in this fact pattern you have to have reason to believe he is a danger to himself. Well, it's been 24 hours and he appears fine in the FB pic.

There is also no mention of the circumstances of his departure. Did he storm out in a huff with a rope tied into a noose or did he just not come home?
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  #24  
Old 25 October 2018, 19:58
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It’s a very rewarding career, I learned a bunch about people, about the law, but had a hard time adjusting to cop’s “we’ve always done it this way” culture.
BTDT. I was addicted to Policing. I loved it and hated it at the same time. I found the work was easy, as everything was black/white.

But the organisational politics drove me fucking mad, in both State and Federal agencies, and led me to leaving both agencies.

Sure, I worked hard, I made great friends, I saved some good people and locked up some evil monsters. Hell, I even fought tooth and nail to make some effective changes. But the burden of the internal politics still makes me mad, and has made me realise the importance on focusing on "quality of life", not "quality of job".

You tried....which is more than most people can say.
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  #25  
Old 25 October 2018, 22:27
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+1000 to Nofear's comment. When I was LEO in the south burbs of Chicago, I always understood that the bad guys were going to lie, cheat, and possibly try to hurt me in any number of ways. New on the job and not from the area, I had no idea that my co-workers would do the same, and be an arguably bigger problem.
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  #26  
Old 26 October 2018, 10:17
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Ha, it's actually wicked boring a lot of the time but it can always get real fun real quick.
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  #27  
Old 26 October 2018, 15:13
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I think the lack of exigency goes back to the first paragraph. The kid was gone for 24 or more hours. If she was so worried about his depression she should have reported him missing ASAP.

For exigency in this fact pattern you have to have reason to believe he is a danger to himself. Well, it's been 24 hours and he appears fine in the FB pic.

There is also no mention of the circumstances of his departure. Did he storm out in a huff with a rope tied into a noose or did he just not come home?
Right, got it. When she woke up in the morning she’d discovered he had snuck out of the house in the middle of the night. But like you mentioned, there was a bit of a time gap there. Maybe she was apprehensive of calling because she didn’t want to bug police on a child disciplined issue, not sure.
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  #28  
Old 15 November 2018, 15:58
Bakertaylor28 Bakertaylor28 is offline
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The thing this whole thing seems to overlook is that you don't need a warrant to search for a person you intend to take into custody immediately, so long as it is reasonable to believe the person you are looking for is at that location at that specific point in time.

However, you may need a warrant to take the person into custody depending upon the situation. (i.e. whether a warrant is required to take the person into custody vs. felony warrantless arrest, etc.) Here, because the person you are looking for is a minor, and we have the parent's permission to take that individual into police custody- we need not have a warrant for the person, because we have consent to seizure of the person.
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  #29  
Old 15 November 2018, 16:09
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Originally Posted by Bakertaylor28 View Post
The thing this whole thing seems to overlook is that you don't need a warrant to search for a person you intend to take into custody immediately, so long as it is reasonable to believe the person you are looking for is at that location at that specific point in time.

However, you may need a warrant to take the person into custody depending upon the situation. (i.e. whether a warrant is required to take the person into custody vs. felony warrantless arrest, etc.) Here, because the person you are looking for is a minor, and we have the parent's permission to take that individual into police custody- we need not have a warrant for the person, because we have consent to seizure of the person.
You articulated that how I was thinking of it, but did a much better job. I think wasn’t difficult is going in and ignoring plain-view stuff. I think that’s where we enter a grayish area. Honestly, I don’t give two shits what’s in the house. I just wanted to make sure the kid wasn’t ODed on heroin and they were trying to cover that up. So then, with that in mind, securing a warrant might have been a better idea. But, then again, if he just started ODing, and I took the time to get a warrant, he could be dead by that time. Now, that’s a shit-ton of what-ifs but, that was my mind set.

So might a case get thrown out because of evidence, yep. But, I think a judge or a jury might understand a violation of someone’s 4th amendment right for someone’s child. Maybe they wouldn’t, but I was ready to take that risk.

I think there’s a mindset amoung Police Officers where they feel they MUST do something right away. You see it all the time in chases. Car finally comes to a stop and cops rush in towards the car to apprend the suspect. Why not hold off, get the rear of the vehicle for cover and start ordering people out? Maximize time and distance, it can be applied to every aspect to Policing, so long as it’s “reasonable.”

Thanks for the back up and articulation!!! Lol
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  #30  
Old 15 November 2018, 16:39
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Originally Posted by Bakertaylor28 View Post
The thing this whole thing seems to overlook is that you don't need a warrant to search for a person you intend to take into custody immediately, so long as it is reasonable to believe the person you are looking for is at that location at that specific point in time.

However, you may need a warrant to take the person into custody depending upon the situation. (i.e. whether a warrant is required to take the person into custody vs. felony warrantless arrest, etc.) Here, because the person you are looking for is a minor, and we have the parent's permission to take that individual into police custody- we need not have a warrant for the person, because we have consent to seizure of the person.
Your assertion doesn’t apply in the situation as written in the OP.
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  #31  
Old 15 November 2018, 18:05
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Your Post
Your whole city is a fluid situation. I'm spending way too much time there lately.

That said, the basic concept of exigency is not so much finding the live body. A live body cannot be suppressed in court.

What causes problems is getting cute (not saying you're getting cute here, I m speaking generally), creating exigency and going in, and finding the dead body, or a gun, or a kilo. That's when your exigency if going to get a full anal exam.
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  #32  
Old 15 November 2018, 21:14
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Originally Posted by Bakertaylor28 View Post
The thing this whole thing seems to overlook is that you don't need a warrant to search for a person you intend to take into custody immediately, so long as it is reasonable to believe the person you are looking for is at that location at that specific point in time.

However, you may need a warrant to take the person into custody depending upon the situation. (i.e. whether a warrant is required to take the person into custody vs. felony warrantless arrest, etc.) Here, because the person you are looking for is a minor, and we have the parent's permission to take that individual into police custody- we need not have a warrant for the person, because we have consent to seizure of the person.
Forgive me? That damn Fourth Amendment often gets in the way and federal law (18 USC 242) gives us a whole load of felony problems if we engage in unlawful searches and seizures.

We are not dealing with "hot pursuit" are we? If you have an (federal) arrest warrant, it acts as a limited "search warrant" to get you in to a location where you have evidence the subject may be, and to arrest him. You may also under the circumstances get away with a Buie sweep (Buie v Maryland) https://www.oyez.org/cases/1989/88-1369

but that is "iffy" in my humble estimation, and experience, in my humble opinion.

So, please tell us why what you said will provide immunity for the Brothers that may read it and attempt to follow your sage advice? No disrespect intended, but your post raises a lot of issues.
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  #33  
Old 15 November 2018, 23:18
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Originally Posted by Bakertaylor28 View Post
The thing this whole thing seems to overlook is that you don't need a warrant to search for a person you intend to take into custody immediately, so long as it is reasonable to believe the person you are looking for is at that location at that specific point in time.
I’m not sure I’m reading this correctly and I don’t want to misinterpret what you wrote. The original post stated that they went to a third party’s residence to look for the kid and the occupants denied consent to search. Are you saying that despite their lack of consent, and without warrant or exigenct circumstances, that they had legal authority to enter and search anyway because they reasonably believed the kid was inside?
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  #34  
Old 16 November 2018, 09:20
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For those interested, for many years federal law enforcement (and as a basic 4th Amendment threshold the several states) we operated under Olmstead – we couldn’t trespass. https://www.oyez.org/cases/1900-1940/277us438

Along came Katz establishing the concept of Reasonable Expectation of Privacy (REP). At that point, we had to look to the facts, someone may not own the location to be searched, but still had an REP. https://www.oyez.org/cases/1967/35
Relatively recently, the Court has used the decisions in tandem when analyzing a warrantless “search” (GPS tracking case). See Jones https://www.oyez.org/cases/2011/10-1259

There is a long list of cases holding that warrantless searches/seizures are presumptively unreasonable and the burden is on the government to prove the search reasonable. King is a relatively recent case dealing with exigencies and warrantless searches. http://www.scotusblog.com/case-files...ntucky-v-king/
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  #35  
Old 27 November 2018, 18:54
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The most important thing you need to remember with regard to exigent circumstances (keeping in mind your own states laws) is that rights to privacy and constitutional rights generally do not extend in situations where "good faith" exceptions prevail. Lets look at your situation- the kid is a juvenile I imagine by your states laws. Here in NC, a 16 year old is a juvenile, otherwise a child. He as a runaway (because running away is not a criminal offense), is actually a victim. A missing person or a runaway, is just that, a victim. Yes, I was shocked to think of this in such a perspective as well. In this case, you did not need a search warrant to enter the home. Just like in any case of an amber alert or at risk juvenile either runaway or missing, their safety takes priority and many things go out the window to an EXTENT. I would have done a knock and talk, and explained the situation. When they refused me, I would have insisted entry and advised my entry was inevitable and in the event the child was located in their custody, they would be charged accordingly depending on the circumstances- in my state, there are two directions this could go (based on articulation) and both are felonies either way. Usually, people tend to open their door at that time. When I knock and ask to come in looking for a missing child, I am not essentially asking rather, I am stating I need to enter your home for the "sole purposes of inspecting for the presence of the child". This excludes any place a reasonable person would say this 16 year old cannot fit. You're not searching sock drawers for a 16 year old. In our state, a missing child (whether abducted or runaway) who is deemed "at risk" (which is clearly defined in our law what that entails) we have the rights based on "reasonable suspicion" to search a place we believe the child would be. A two hour lapse in time for the facebook video, is still solid enough to articulate that the child is, or has recently been transported, harbored or kept with these people/persons. What you are referring to is a "staleness" issue. You need to verify with your local DA who can advise on your specific state "staleness" case laws and rulings. Staleness in our state is usually after 48-72 hours for evidence like narcotics, stolen property, etc. For digital forensics, it can be weeks depending on the circumstances and articulation, and for a missing person and especially a CHILD (juvenile), it can be 72 hours depending on the solidity of the evidence or articulation presented. In your case, you would not have a staleness issue unless a week or more has passed in my opinion. But 2 hours...... you would be golden in NC. Also, check your laws regarding people who harbor or keep runaway juveniles, contribute to their delinquency and the variations in your law for kidnapping. We have subsections of specific type of kidnapping or "harboring" certain persons, not under traditional kidnapping contexts, that would cover this in addition to the child abuse aspect for the contributing to the delinquency. Hope this helps.
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  #36  
Old 27 November 2018, 19:52
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"In this case, you did not need a search warrant to enter the home. Just like in any case of an amber alert or at risk juvenile either runaway or missing, their safety takes priority and many things go out the window."

I am so damn sad that I slept through those classes. Would you please give the board some cases that support that statement? I really want to learn.
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  #37  
Old 27 November 2018, 21:41
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Originally Posted by Fu King Lawyer View Post
"In this case, you did not need a search warrant to enter the home. Just like in any case of an amber alert or at risk juvenile either runaway or missing, their safety takes priority and many things go out the window."

I am so damn sad that I slept through those classes. Would you please give the board some cases that support that statement? I really want to learn.
Agreed. Unless we saw the kid go inside and could articulate hot pursuit and imminent danger, the most we could do was a knock and talk. We could request consent to search. If we didn't get consent, we might take a few minutes to explain the consequences of that decision, but bottom line was... Go get a search warrant and be prepared to articulate PC.

The only exception I ever saw was in the USBP where the Probable Cause standard is reduced to Reasonable Suspicion within 25 miles of the US Border.
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  #38  
Old 27 November 2018, 21:54
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Agreed. Unless we saw the kid go inside and could articulate hot pursuit and imminent danger, the most we could do was a knock and talk. We could request consent to search. If we didn't get consent, we might take a few minutes to explain the consequences of that decision, but bottom line was... Go get a search warrant and be prepared to articulate PC.

The only exception I ever saw was in the USBP where the Probable Cause standard is reduced to Reasonable Suspicion within 25 miles of the US Border.
Sir,
You speak ground truth. Border Searches are not part of the probable cause requirements of the 4th Amend. In fact, back before DHS, I recall being part of a task force with US Customs Agents that would many times follow aircraft 100s of miles into the interior of the country and then execute a customs search wherever the plane landed
I have no working knowledge of Border Patrol Operations, but if they had an administrative rule of 25 miles - that in my opinion would comply with US Const standards - in fact, if the BP folks wanted to increase that to 100 miles, it probably would likewise comply , but then all the BP agents would be up in Dallas after the apprehension drinking in the strip bars. v.r fkl
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  #39  
Old 28 November 2018, 00:18
Bakertaylor28 Bakertaylor28 is offline
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Originally Posted by Fu King Lawyer View Post
Forgive me? That damn Fourth Amendment often gets in the way and federal law (18 USC 242) gives us a whole load of felony problems if we engage in unlawful searches and seizures.

We are not dealing with "hot pursuit" are we? If you have an (federal) arrest warrant, it acts as a limited "search warrant" to get you in to a location where you have evidence the subject may be, and to arrest him. You may also under the circumstances get away with a Buie sweep (Buie v Maryland) https://www.oyez.org/cases/1989/88-1369

but that is "iffy" in my humble estimation, and experience, in my humble opinion.

So, please tell us why what you said will provide immunity for the Brothers that may read it and attempt to follow your sage advice? No disrespect intended, but your post raises a lot of issues.
The thing with this is that most of the fourth amendment cases dealing with entering property deal with searching for physical evidence- not searching for "persons". However, it could be safe for practical conservatism to equate the two. The courts have held time and again that the possibility that one might destroy evidence (i.e. flush the dope down the toliet) is in itself an exigent circumstance that justifies entry without a warrant. Not only that, but harboring a run-away is a crime in and of itself. Therefore,in the OP's setting- there comes the whole issue as to whether or not there is probable cause to believe that a homeowner is harboring a runaway child. If so, then arrest the homeowner and we have search incident to arrest.

Therefore, the notion that a specific person is in a house and might escape by the time you go through the process to obtain a search warrant is in and of itself a comparable exigent circumstance- in so far as to give law enforcement the benefit of examining the scene as it initially lies without the corruption of an escape.
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Old 28 November 2018, 00:38
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Originally Posted by Bakertaylor28 View Post
The thing with this is that most of the fourth amendment cases dealing with entering property deal with searching for physical evidence- not searching for "persons". However, it could be safe for practical conservatism to equate the two. The courts have held time and again that the possibility that one might destroy evidence (i.e. flush the dope down the toliet) is in itself an exigent circumstance that justifies entry without a warrant. Not only that, but harboring a run-away is a crime in and of itself. Therefore,in the OP's setting- there comes the whole issue as to whether or not there is probable cause to believe that a homeowner is harboring a runaway child. If so, then arrest the homeowner and we have search incident to arrest.
You think SITA applies to a house? “Possibly” harboring a runaway without information that they are in immediate jeopardy is not the same as claiming exigency for flushing dope. Also, you think SITA applies to a house?
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