Here’s a question that comes up from time to time: May a search warrant issue for a residence in which an apparent suicide has taken place, in order to rule out the possibility of foul play? Generally, I don’t think so, for the reasons given below.
A search warrant requires probable cause to believe a crime has been committed. Under G.S. 15A-245(b), a judicial official must issue a search warrant if the application shows that “there is probable cause to believe that the search will discover items . . . subject to seizure under G.S. 15A-242.” The latter statute encompasses stolen property; contraband; items used to commit a crime; and evidence of a crime. If no crime has been committed, there is no statutory authority to issue a search warrant. Likewise, as a constitutional matter, a warrant may issue only where “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213 (1983).
Suicide isn’t a crime. G.S. 14-17.1 provides “[t]he common-law crime of suicide is hereby abolished.” So a search warrant can’t be based on probable cause to believe that a suicide took place.
Ruling out homicide isn’t probable cause. In some cases, there will be reason to suspect that a reported suicide is in fact a homicide, as when there are signs of forced entry together with the “suicide,” or when the “suicide” was committed by stabbing or another means indicative of homicide. In such a case, an officer may have probable cause sufficient to obtain a search warrant. But in the “routine” suicide, where there is no particular reason to suspect that a death is a homicide and the deceased has been depressed or otherwise vulnerable to suicide, the desire to “rule out” homicide does not provide probable case. Suicide is twice as common as homicide, according to the CDC. Probable cause may be a “relatively undemanding” standard, Kayley v. United States, __ U.S. __, 134 S. Ct. 1090 (2014), but it is hard to argue that it is such a low hurdle that the mere existence of a dead body, even under circumstances suggestive of suicide and where there is no immediate evidence of foul play, provides probable cause.
Other approaches. My understanding is that, notwithstanding the foregoing, some judicial officials will issue search warrants in cases of apparent suicide. It’s understandable to want to be sure that a death is a suicide, and the privacy interests at stake may be reduced by the death of one of the people who might have a reasonable expectation of privacy in the location in question. But other options exist for accomplishing the goal of looking a little harder at apparent suicides. The medical examiner should be called to the scene under G.S. 130A-83, and he or she may be able to confirm that the death is a suicide or to identify signs of a possible homicide that would support further investigation. Furthermore, the next of kin or any surviving co-occupants of the residence in question will often consent to reasonable investigation by a law enforcement officer. And of course, if a report concerns an attempted rather than a completed suicide, an officer almost certainly could enter the residence without a warrant to provide emergency aid, though the officer could not conduct a complete search under such circumstances.
Conclusion. The legal analysis seems fairly straightforward to me. But this may be one of those instances where, in the real world, legal analysis sometimes gives way to practical considerations. As always, I welcome comments, especially from those with experience around the investigation of apparent suicides.
Interesting analysis. I’m not sure what qualifies as a routine suicide, but for the sake of this follow up question, let’s say the officer is called to the home of a DOA in a bathtub with slit wrists and a note that says “Goodbye cruel world”. At what point could the spouse of the deceased lawfully ask the officers to leave the property?
As you know, police are taught to treat all suicides as homicides until proven otherwise. How in-depth the investigation goes depends on circumstances too numerous to mention, but it seems that there has to be some legal room to operate between the exigency of a recently discovered body and the need to procure a search warrant for further investigation.
I believe Mr. Welty meant to cite 130A-383 instead of 130A-83 in regards to medical examiners. This is another great blog post by Mr. Welty with some excellent analysis. I just wanted to point something out in regards the medical examiner system in NC. In practice, the medical examiner system in North Carolina has significant issues. A News and Observer investigation found that medical examiners don’t go to death scenes in over 90% of cases and I believe it is probably closer to 100% in some areas of the state. Up until this year when the state finally addressed this issue, a medical examiner received no training and was only paid $100 per case. In many areas of the state, the medical examiner may only be an RN with no training in death investigations. There is now mandatory training and medical examiners will receive more money per case. Unfortunately, a proposal by Senator Tarte to replace the 350 part time medical examiners with a staff of full time trained investigators failed to gain support due to the amount of money involved. If an ME signs a death certificate and an autopsy is never conducted by a forensic pathologist, it is possible that we may be missing some homicides. An example of this flawed system was in 2013 when a medical examiner in Harnett County concluded that a person died from a car wreck when in reality he was stabbed to death by a female. Fortunately, the victim’s family and the funeral home workers were able to alert authorities and an autopsy was performed revealing that the death was a homicide. I don’t mean for this post to be condemning the ME Office as they do outstanding work and no entity is perfect, but the amount of resources and money put into the medical examiner system in North Carolina pales in comparison to other states. I think NC is moving in the right direction with fixing, but there is a long way to go.
I agree with you that we are definitely missing homicides. I had an instructor in one of my law enforcement classes who actually stated that he would be willing to bet his house that in cases of elderly deaths we are missing homicides because the odds are some of them are intentional drug overdoses by family members to either end suffering or hurry up and get their inheritance.
In my experience as a police investigator in Virginia (I understand things are done differently in NC) I don’t recall an ME ever responding to a scene of an apparent suicide in which I was working. It was usually incumbent upon me to conduct the preliminary investigation and, based upon my findings after a thorough investigation while at the scene, submit the incident report as a suicide, but pending the ME’s findings after the autopsy. After conferring with the responding medical unit the thorough investigation would include gathering medical & mental history, financial, and criminal history of the deceased, any suspicious signs of foul play, means of death, etc. and, after its completion, contacting the on-call ME with findings at the scene to receive permission to either move the body or have an ME respond. As I indicated, as a seasoned investigator/CST I don’t recall any ME responding to such scenes even AFTER my findings resulted in suspicious circumstances. Moreover, it was my duty to collect and record everything at the scene and follow-up with the ME’s Office within allotted time frames for final results. In the meantime, the crime scene remained sealed. But, a warrant was always necessary, as you’ve indicated, in those apparent suicides in which the deceased had probable criminal history or situations that could lead to the wrongdoings of others, moreso to protect other cases. Thank you, Mr. Welty, for this post.
I can’t recall an ME ever coming to any of my suicides/natural causes/homicides either, and that’s in NC. Our homicide investigators respond to all suspected suicides, and odds are they have more experience and training to identify suspicious circumstances than an ME anyway given how inadequately the state trains them here.
I do not recall a ME coming to more than one scene in the many years I worked in the field. As an investigator, I never saw a ME on scene. When the ME does “look” over a suicide victim, it is nothing more than that. We have had to have bodies returned to the ME’s Office from the funeral home for autopsy after a general “visual” exam. I am pretty sure we have missed homicides as well.
i live in pennsylvania… but given the US supreme court’s ruling in mincey v arizona the police would need a warrant to conduct a search of a home if homicide is suspected. Furthermore… if they simply wish to investigate a suicide they need consent of the homeowner since suicide is not a crime. I dealt with this in 2013 when my girlfriend committed suicide by gunshot in my home. I came home from work and discovered her. I started cpr and instructed my brother to call an ambulance. Firemen and emt declaired herdead and PA state police showed up and started what tirned out to be a nightmarw for my brother and I. They intruded into my home despite me telling them i did not consent and demand they left…. Seized my home and detained my brother and I. Alleged that pistols they recovered were not owned by me ( which is a whole seperate issue because they did and psp keeps an illegal firearm registry that rightfully showed me as the legal owner if said firearms) in a warrant and alleged us both in a criminal homicide warrant premised on their entry that had no exigency. ( we were both located… she was dead… firemen lead psp troopers into the bedroom so not a protective sweep) They continued their seizure for nearly six hours before obtaining a warrant that was prepared with reckless disregard for the truth… Failed to serve said warrant until they issued their inventory lists at the close of the day… and even photographed the contents of my home prior to obtaining a warrant. At the end of the day they had taken two firearms from me.. ( which were both returned six months later) several personal effects.. ( that have not been returned) and alleged to have taken various small amounts of drugs and parafanaila amounting to misdimeanor charges for my brother and I.
My brother and I were not tried together… He got a public pretender and I defended myself. At the end of our preliminary hearings he agreed to entertain a plea deal where mine was bound to court. I filed a motion to suppress and after a two day suppression hearing the DA motioned for Nolle Prosse for lack of prosecutorial merit. This is because I had convinced everyone in that courtroom that..
1 the police’s testimoneys were incongruent with their affidavits of probable cause
2 there was no exigent circumstances to justify there intrusion nor did they have consent.
3 they failed to knock and announce and lied about serving the warrant properly.
4 the warrant itself was incongruent with reality… Wreckless disregard for the truth.
5 they failed to perform inventories in my presence.
6 they photographed my home in which they had complete control over prior to having a warrant.
7 in doing so.. Failed to demonstrate that they did not collect evidence in a manner non violative of my constitutional rights.
That being said… I was able to make a few phone calls and do a better job than the public pretender they arranged to defend my brother and have his case dismissed as well.
The law is the law… And the cops were on the wrong side of constitutional law that day. I’ve since filed a 1983 claim against a coroner and nine state troopers in federal court. ( Karash v machachek et al)
To me its simple… The constitution is the supreme law of the land and if you want to search or seize someone’s home you get a warrant based on probable cause or you demonstrate an exigency. ( 1 threat to life 2 hot pursuit 3 consent to search)
Anyhow… Thanks for writing this article and letting me share my ideas… A lot of less informed people think its perfectly OK for cops to barge into your home to investigate a non crime… But it isn’t.
And that’s why the constitution is there… I understand this frustrates police efforts… But at the end of the day it protects innocent people from police intrusion and scrutiny as well as prevents the damages that result in costly law suits for 1983 claims.
outstanding analysis of mincey issues. watch this case.