opening a safe

[jwhitlock]

What is the name of your state? Illinois
The swat team came into my Illinois apartment with a search warrent. They found some pot on the dresser (less than 5 grams). They also saw my safe. They asked my husband and I to open the safe. We refused. They made serveral request for us to open it. They searched for the combination, but were unsuccessful. They arrested us and took us to the police department. During that time they opened the safe with several tools they brought in. Inside they found additional pot (500+ grams). I was told they had to have a separate warrent to open a safe. Is this correct?

 

[JETX]

Unless the original warrant specified the safe and its contents, they would need a separate warrant to open it. However, it is possible that during the interim of your detention and eventual arrest, they could have gotten one. No one on this forum (or anyone else who is not able to review ALL the facts) can answer whether they did or did not access the safe properly.

Obviously, you are going to need a defense attorney for the charges you have, and your attorney is the ONLY person who can advise you with any accuracy as to what they did and whether they had the right to do it.

Summary: Ask your attorney to review the facts and take appropriate action.

 

[GKris]

A search warrant will list what they are looking for and can reasonably search anywhere in the residence where the stuff can reasonably be hidden. I would imagine if the warrant said narcotics it also included scales, paraphenelia and illicit proceeds from the sales, which would automatically include the safe opening. The warrant should have also included a phrase to include out-buildings, vehicles, and known or unknown storage places within the curtilage of the property. WHich also would automatically include vehicle trunks, garbage cans, unattatched sheds on the property - and the locked safe. With a warrant locked containers located withing the named structure are in fair play. Now a locked container on a non warrant consentual search is another thing. If a reasonable person could believe narcotics could be within the safe, with a search warrant for narcotics, then they can open the safe. If the warrant was for say stolen automobiles, and they did not add the other things to get into a safe, then they could not open it. The ole elephant in a matchbox routine.

 

[JETX]

"I would imagine if the warrant said narcotics it also included scales, paraphenelia and illicit proceeds from the sales, which would automatically include the safe opening."
*** You imagine wrong. A closed, locked safe is not inherently included in a search warrant.

As an example, a separate search warrant is required in order to open a closed, locked briefcase in a vehicle. Back in the old days, before CHL licenses, all the driver had to do when being pulled over, was to put 'the weapon' into a briefcase, close the lid and spin the combination. Without probable cause, the officer would require a search warrant to open the case.

 

[GKris]

And the original search of the vehicle prior to finding the locked case was consentual, where as comong across the locked case a warrant would be needed. That what I said. If a warrant was used to search the vehicle, the locked case could be opened. That is exactly how it goes and is done everyday exactly that way. Playing the devil's advocate, if you are right - then there are thousands of cops doing it wrong all over the country. I think someone would have mentioned it....

 

[JETX]

It doesn't matter if the original search of the vehicle was with consent or with cause. The locked briefcase (or safe in this thread) is considered a separate item and needs to have a search warrant in order to open it.

And there have been several drug and money cases 'tossed' for the lack of a separate warrant to open a closed container not a part of the vehicle (trunk, glovebox, center console, etc. are parts of the vehicle and do not need separate warrants).

 

[GKris]

Well rather than sound ridiculous and argue about this all day, We need to agree to disagree. I teach warrants and writs classes to new cops, old cops, task forces, lawyers to include district attorney's and public defenders. I've done it exactly the same way for years and years. Never had a complaint yet. I still say what I said, with a warant I type, that safe is getting opened and all its contents are fair game. I've never been to a suppression hearing over a warrant and have never lost a grain over a search. I think we are on 2 different pages.

 

[Boxcarbill]

Well rather than sound ridiculous and argue about this all day, We need to agree to disagree. I teach warrants and writs classes to new cops, old cops, task forces, lawyers to include district attorney's and public defenders. I've done it exactly the same way for years and years. Never had a complaint yet. I still say what I said, with a warant I type, that safe is getting opened and all its contents are fair game. I've never been to a suppression hearing over a warrant and have never lost a grain over a search. I think we are on 2 different pages.

I have to ask, why would a lawyer take a class designed for law enforcement officers. The lawyers, here in Texas anyway, would have studied this in law school in Constitutional law (required) and Criminal law (required) and possible as an elective like Texas Criminal Procedure, Texas Criminal Evidence, Forensics and /or Trial Advocacy. As licensed lawyers, even had they taken the course and forgotten something, they are trained in legal research and they have been trained to read and interpret the law. The research can be done so quickly that I find it bizarre to that they ( district attorneys and, I'm assuming you are referring to federal public defenders ) would go to a such a class to learn about constitutional law such as this--perhaps, maybe, out of curiosity to see what officers are being taught regarding these laws. I don't believe such a class would even qualify for MCLE credit and so that wouldn't be the reason. And they are going to have to take 15 hours of MCLE. Tis a puzzlement.

 

[JETX]

Agreed, to disagree.

And though the subject is access to computer contents (instead of a locked safe), I believe the relevance of the DOJ's manual on "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations" clearly shows that a computer (or closed and locked safe) in a location subject to a search, would require 'Exigent Circumstances' and a separate warrant.

An excerpt:
"In determining whether exigent circumstances exist, agents should consider: (1) the degree of urgency involved, (2) the amount of time necessary to obtain a warrant, (3) whether the evidence is about to be removed or destroyed, (4) the possibility of danger at the site, (5) information indicating the possessors of the contraband know the police are on their trail, and (6) the ready destructibility of the contraband. See United States v. Reed, 935 F.2d 641, 642 (4th Cir. 1991)."

This report can be found at:
http://www.cybercrime.gov/s&smanual2002.htm#_IC4_

Also, the following regarding a DEA supports the fact that a warrant is required to open a locked safe:
"DEA agents entered Barmes´ home about 6 a.m. Monday. He said that although DEA agents were quiet about what they were looking for, they were adamant about what they wanted him to do. They demanded he open a safe and if he didn´t, "they said they would tear it open," Barmes said.

"They told me that if I didn´t cooperate they would tear up the entire house," he said. "They also said that if they needed to, they would dig up every inch of the 17 acres I have out here. I just gave them the keys to everything so they wouldn´t bust the locks."
Source: http://www.digitalscale.com/Barmes Article.htm

Finally, it is important to remember that in essence, the Fourth Amendment makes ALL searches and seizures without a warrant presumptively unreasonable and subject to being overcome by certain circumstances. The amendment was created due to concerns that the founding fathers had regarding intrusion into the home: "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed". United States v. Watson, 423 U.S. 411 (1976)."

As such, it is best to assume that any warrantless search (as in the case of a locked safe or briefcase) is illegal..... until someone can show that it isn't.

BTW, another good information site can be found at (and NC courts have found that searches of locked briefcases are improper):
http://www.jus.state.nc.us/NCJA/flippo.htm

 

[GKris]

Ok, semantics, the word "class" is a generalization. When assigned to interdiction all those involved regularlly get together and hold "informational seminars" to ensure everyone is working with the same ideas in mind. When I was assigned to the roadways actually doing the stops and getting involved with case prep ect I was asked a few times to give a "presentation" on what wordings and phrases would go into a warrant so that everyone was doing it the same way. After a year or so those "presentations" became standard because attorney's assigned couldn't seem to stick around - the lure of the private sector and big money was too much for them. After I moved on to bigger and better, I still go back to do these "presentations" to attorney's and everyone else in the room. So I appologize for inferring that I, a lowly law enforcement officer, could have anything to teach a nice fresh ADA who because they spent the last 6 years in law school and know it all already, anything. In the future I will be more speciffic about what I say an attorney can learn from a law enforcement officer because obviously I am surely overstepping my bounds. I find that extremely ignorant to suggest, but then again - well nevermind. "Studied it anyway" as if the school could prepare and cover everything, some people actually pay attention to experience, as you already know I am sure - every case is different and can go in completely different directions, I was taught originally a warrant should be about 3/4 of a page long. After having judges toss them back at us we find the more detail and generalizations included in the right ways, the more we get, I am sure though that is covered in the almighty classes. Now I'm going to have to kick my dog.

Jetx what I am saying is that when I put together warrants they would have included the safe even if I had no knowledge of it when writing the warrant. In speaking to different law enforcement and attorney's (ohmygodhesaiditagain) from all over the same general things are going into warrants as standard now. Its been done this way for so long that I don't ever know of it being done differently, before I got into this stuff maybe when as a street level guy I wouldn't know, but this is how its done. I think we are just thinking of it from 2 different angles.

Why they would even take a class taught by kaw enforcement officers, maybe to actually learn something? Where is that *&%$ dog....

 

[JETX]

Gkris:
Gotta' hand it to you.... got a chuckle out of your post. Thank you.

In any case, it is my OPINION that once the officers serving the warrant found the locked safe, they would have to get an additional warrant to 'pop' the safe. That would be on the assumption that there was no mention of the safe in the original warrant.

However, I have been wrong in the past, and may be wrong here, and will most likely be wrong in the future.... on something.
Best to you....

 

[Boxcarbill]

Ok, semantics, the word "class" is a generalization. When assigned to interdiction all those involved regularlly get together and hold "informational seminars" to ensure everyone is working with the same ideas in mind. When I was assigned to the roadways actually doing the stops and getting involved with case prep ect I was asked a few times to give a "presentation" on what wordings and phrases would go into a warrant so that everyone was doing it the same way. After a year or so those "presentations" became standard because attorney's assigned couldn't seem to stick around - the lure of the private sector and big money was too much for them. After I moved on to bigger and better, I still go back to do these "presentations" to attorney's and everyone else in the room. So I appologize for inferring that I, a lowly law enforcement officer, could have anything to teach a nice fresh ADA who because they spent the last 6 years in law school and know it all already, anything. In the future I will be more speciffic about what I say an attorney can learn from a law enforcement officer because obviously I am surely overstepping my bounds. I find that extremely ignorant to suggest, but then again - well nevermind. "Studied it anyway" as if the school could prepare and cover everything, some people actually pay attention to experience, as you already know I am sure - every case is different and can go in completely different directions, I was taught originally a warrant should be about 3/4 of a page long. After having judges toss them back at us we find the more detail and generalizations included in the right ways, the more we get, I am sure though that is covered in the almighty classes. Now I'm going to have to kick my dog.

Jetx what I am saying is that when I put together warrants they would have included the safe even if I had no knowledge of it when writing the warrant. In speaking to different law enforcement and attorney's (ohmygodhesaiditagain) from all over the same general things are going into warrants as standard now. Its been done this way for so long that I don't ever know of it being done differently, before I got into this stuff maybe when as a street level guy I wouldn't know, but this is how its done. I think we are just thinking of it from 2 different angles.

Why they would even take a class taught by kaw enforcement officers, maybe to actually learn something? Where is that *&%$ dog....

You know, I enjoyed reading your explanation right up until you got defensive. I have also enjoyed reading your other posts and they came across intelligent, well-spoken and civil. Now, I see that you can be the typical, bully smart mouth cop. And actually the law school student fresh graduate knows far more law than a lawyer who has been practicing for 30 years and a hell of lot more law than a police officer. Now, the street smart stuff, i.e. warrant walking type of practical stuff, you could teach them but you certainly can not teach a fresh lawschool graduate the law. In fact, it is amazing just how much law is lost in the first year!

[Edit]
Incidentally, lawyers in the state of Texas are required to complete 15 hours of minimum continuing legal education (MCLE) each year to have their license renewed in the month of their birth. Those in my county who take court appointed criminal cases are required to have 15 minimum continuing legal education in criminal law. So, no, they aren't going to be sitting in a lecture taught by a police office unless they work for the D.A's office and they are required to attend to keep their jobs. That is so that they will know how their police officers do things so that can be more effective at trial.

 

[GKris]

Well I humbly appologize. Most ADA's I come in contact with are very receptive to different "informational briefings" from police officers. It gives insight into what the both sides are thinking. Naturally every once in awhile a few heads have to be knocked to get them over that "But I went to college" routine. It would probably suprise you to discover I have a master's peace officer certification, am finishing up my degree in education, and since I refuse to be promoted I have worked the street for the past 18 years. The amount of knowledge you discuss that you feel fresh attorny's possess is questionable. A sheepskin and new tie does not a lawyer make. Smart mouth bully cop? Smart mouth yes, when needed. A bully cop, only when requested by some holier than thou fool. So yes, I can talk to you intelligently or bury a fist in your skull, I get defensive when my integrity is put on the stand by someone who believes because they wear a suit to work they entitled to offer an opinion weather requested or not. I doubt you are offended, but in the future stick to the purpose of this forum and keep your "puzzlements" where they belong.

 

[Boxcarbill]

Oh, I believe that I dealt with why an ADA would sit in on these sessions--i.e. knowing how their witness does things in the field but that doesn't explain your hyperbolic statement regarding all those who you teach which included "public defenders" --particularly since Texas does not have "public defenders." It's more of a volunteer basis for court appointments by those in private practice.

As to the knowledge of law of a fresh lawschool graduate, it may be guestionable to you but not for the bar examiners. I think that you must be under the misguided notion that I'm one of those fresh graduates on the cutting-edge of legal knowledge in all the different areas of law. I have long ago forgotten more areas of the law than I now know.

I see from your post that you have a problem with suits, ties and "sheepskins." It just isn't quite the same as confronting minorities, teenagers, and/or indigents. The control and intimidation or the "holier than thou" just isn't possible with the "suit." Nor is the "bury a fist in your skull" mentality even a rationale thought to contemplate with the suit. (It may be time for you to find your dog.)

When a person posts on Internet public forums, they subject themselves to opinions from the public. So being a member of the public, I can express an opinion on any post that I choose. That includes your posts.

 

[GKris]

Yup. You are right, I was mistaken to classify you as a know it all. Sorry, my bad.