Legal Considerations

By Vernon J. Geberth, M.S., M.P.S.
Author of Practical Homicide Investigation, Copyright 2003
REPRINT: LAW and ORDER Vol. 51, No. 5, May, 2003

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The search of the crime scene is the most important phase of the investigation conducted at the scene. Decisions of the courts restricting admissibility of testimonial evidence have significantly increased the value of physical evidence in homicide investigations. Therefore, law enforcement personnel involved in the crime scene search must arrange for the proper and effective collection of evidence at the scene.

Physical evidence, which is often referred to as the "unimpeachable witness," cannot be clouded by a faulty memory, prejudice, poor eyesight, or a desire "not to get involved." However, before a forensic laboratory can effectively examine physical evidence, it must be recognized as evidence.

The search of the crime scene is the most important phase of the investigation conducted at the scene. Decisions of the courts restricting admissibility of testimonial evidence have significantly increased the value of physical evidence in homicide investigations. Therefore, law enforcement personnel involved in the crime scene search must arrange for the proper and effective collection of evidence at the scene.

Physical evidence, which is often referred to as the "unimpeachable witness," cannot be clouded by a faulty memory, prejudice, poor eyesight, or a desire "not to get involved." However, before a forensic laboratory can effectively examine physical evidence, it must be recognized as evidence.

Practically speaking ANYTHING and EVERYTHING should be considered as evidence until proven differently. You can never go wrong in over collecting. I cannot recall how many times I that and my detectives returned to a crime scene. This circumstance usually occurred after we received additional information from friends and or family, which revealed that some seemingly innocuous item in the crime scene was actually an important piece of evidence. That is why it is imperative to "hold onto" the crime scene as long as possible. Some item, which didn't seem significant on the first day of the investigation, may suddenly take on the intrinsic value of gold.

An excellent example of the Practical Homicide Investigation principle that "Anything" and "Everything" should be considered as evidence is the case, which involved serial murderer Danny Rollings, who became known as The "Gainesville Ripper." He had been staying in the woods at a campsite near to an apartment where eighteen-year-old Christa Leigh Hoyt's had been murdered. The police, who had been scouring the woods looking for anyone or anything suspicious, came upon Rollings and another male on their way back to a campsite. When the police ordered the two men to halt, Rollings ran away. The police questioned the other male who remained behind. He led them to the campsite where Danny Rolling and he were headed. When the officers discovered the campsite the found a number of items that would later link Rollings to the five murders. However, the only item that seemed important at the time was a bag of cash covered with pink dye. There had been a bank robbery the previous day and the unknown white male, who ran from the police matched the description of the bank robber, who turned out to be Danny Rollings.

The campsite had effectively been abandoned when Danny Rollings ran from the police. The other male had no proprietary right to the items in the campsite. Following good Practical Homicide Investigation techniques, the police collected and secured everything at the campsite, which included bedding, a gun, a ski mask, a cassette tape deck and a screwdriver. Subsequent laboratory tests were conducted on these crucial materials retrieved from the campsite.

The authorities were astonished to find that seventeen pry marks at three of the murder scenes were matched to the screwdriver retrieved from Rollings campsite. In addition, pubic hairs found through vacuuming the campsite matched Christa Hoyt through DNA analysis. These vital pieces of evidence had been properly and legally collected by the police and were instrumental in obtaining the conviction of Danny Rollings in the Christa Hoyt case.

The professional criminal investigator must be cognizant of state and federal law as it applies to the crime scene process. I have listed three major Supreme Court decisions, which effect the retrieval of evidence during the crime scene process.


Once an item is recognized as evidence it must be properly collected and preserved for laboratory examination. However, in order for physical evidence to be admissible, it must have been legally obtained. The courts have severely restricted the right of the police to search certain homicide crime scenes without a warrant. The United States Supreme Court has rendered three major decisions, which require police to obtain a search warrant to search a premise where the suspect and the deceased share a proprietary right to the premises.

In Mincey v. Arizona 437 US 385 (1978) The Supreme Court cited that the police had violated the defendant's fourth amendment rights. Mincey, who was dope dealer, had shot and killed an undercover narcotics officer during a drug raid. Mincey was wounded and one of his companions were killed in the subsequent gun battle. The Narcotics officers, following procedure secured the premises and notified Homicide. Homicide detectives conducted an investigation during which hundreds of pieces of evidence were seized by the police over a three-day crime scene search. Mincey was convicted of the murder of the undercover officer. The conviction was overturned by the Supreme Court, which maintained that Mincey's Fourth Amendment rights were violated and that the police who should have secured a search warrant. The Supreme Court basically informed law enforcement that "There wasn't any homicide crime scene exception" to the Fourth Amendment.

Did we in law enforcement get the message?  No.

In 1984 The Supreme Court once again stepped in to address the same issue in Thompson v Louisiana 469 US 17 (1984). In the Thompson case, a woman who was reportedly depressed shot and killer her husband. She then took an overdose of pills in an attempt to commit suicide. She then suddenly experienced a "change-of-heart" and decided she didn't want to die. She called her daughter, who in turn called the Sheriff's Department, which dispatched an ambulance and deputies to the woman's home. The woman was transported to the hospital where she was treated. Investigators were called to the house and gathered evidence of the murder in the crime scene. The woman was subsequently charged and convicted in the murder of her husband. The United States Supreme Court ruled against The State of Louisiana citing the Mincey Decision and the expectation of privacy provided in the Fourth Amendment. The woman's conviction was overturned. Once again the courts ruled that there was NO Homicide Exception and that the police were required to obtain a search warrant.

Did we in law enforcement get the message this time?  No.

In 1999 The Supreme Court once again stepped in to address the same issues raised in the Mincey and Thompson cases. This time it was Flippo v West Virginia 98 US 8770 (1999). Flippo was a pastor who reportedly was having a homosexual affair with a member of his congregation. His wife had discovered the relationship and was going to divorce him. Flippo convinced her that they should reconcile and talked her into going on a "camping trip." They went to a cabin in West Virginia that the pastor had rented. While at the cabin, the pastor reported that they had become victims of a home invasion during which his wife was fatally beaten and the pastor was slightly injured. The police were not impressed with Flippo's injuries. He was brought to a local hospital and "patched-up." Investigators, who were processing the crime scene, came upon Flippo's briefcase. Inside the briefcase were various pornographic pictures of Flippo and his male lover engaged in sexual activities. These materials, which represented "motive" as well as the other evidence seized from the cabin, were introduced into trial. Flippo was convicted of the murder of his wife. The conviction was overturned based on the same issues raised in Mincey and Thompson.

The message is quite clear:



Any EXTENDED SEARCH of a HOMICIDE SCENE, without consent or exigent circumstances requires a search warrant.

Homicides involving common-law relationships, husbands and wives, or family disputes may necessitate that the detective secure a warrant before a premises can be searched. · The professional homicide detective must be aware of the legal requirements for a warrant dependent upon both Supreme Court decisions as well as state law and case law within their own jurisdictional purview. An additional consideration is the dynamics of the event, which may present legitimate search warrant exceptions. The courts have recognized certain circumstances, which allow for exceptions to the requirement of a search warrant. These exceptions are:

- Emergency or exigent circumstances
- Evidence in plain view
- Post arrest search of an individual for weapons and contraband, and
- Consent.


Almost every crime will constitute an emergency that JUSTIFIES law enforcement's warrantless entry to the scene. Traditionally, Courts have recognized three.

- Threats to life or safety
- Destruction or removal of evidence
- Escape

Officers are authorized to do whatever is REASONABLY necessary to resolve the emergency. Once the emergency is resolved the Emergency Exception is NEGATED. Therefore, I have provided some guidelines to consider in your crime scene investigation.


- Can unquestionably SWEEP the premises in an effort to locate the victim, additional victims and or the suspect.
- If there is a body found. The police can take the ME into the scene to view and collect the body
- Probable cause to believe a crime scene contains evidence that will be destroyed if not quickly recovered. That Evidence may be retrieved as part of the emergency.
- Preserving a crime scene is considered reasonable. Documenting the scene: Photographs, videotape and diagrams.


Joely, a beautiful young woman 23-year-old became the victim of a stalker-murder when she attempted to escape the unwelcome advances of a young man named Robert, who wanted a relationship with her. She had hastily packed some of her belongings and moved to a male friend's house hoping to avoid Robert. However, Robert had cleverly discovered where she was hiding and began stalking her.

On April 5th, Robert borrowed a car from a friend so that Joely wouldn't recognize his car in the area. He watched the house and waited until the male resident left for work. When he was sure that the Joely was alone, he approached the house on foot and knocked on the front door. Robert demanded that she leave with him. There was a physical struggle during which time Joely received a black eye. Robert then tried to physically remove her from the residence. However, Joely physically resisted. Robert grabbed a knife from the kitchen and repeatedly stabbed her in the chest killing her.

Robert, who had injured himself during the struggle, cleaned-up in the bathroom and then fled from the scene. He saw a uniformed officer blocking the roadway with his emergency lights on. Robert thought that Joely's roommate had returned home, discovered the body and called the police. He thought the roadblock was for him!

Actually, the roadblock was already in place and the officer was blocking the road for the "Way of the Cross" procession. Good Friday fell on April 5th that year.

Robert told the officer that he was a witness to a murder and had been injured by the killer. Robert told the police that he had gone to the victim's home to return her driver's license, which she had lost. Robert stated that he, Joely and a white male named Rick were all smoking marijuana in the living room. Robert stated that he went to the bathroom and when he returned he saw Rick stabbing Joely. He said he tried to stop Rick and he was stabbed. Robert told the police officer that Rick had fled out the back door.


The uniform officers responded to the house and entered the premises under "emergency circumstances." They found the victim lying on her back in the kitchen in a pool of blood. She was dead. The officers searched the premises for any additional victims or perpetrators. The officers then secured the crime scene and notified detectives to respond. These actions were proper and legal under the circumstances of an "emergency response."


The detectives properly preserved and documented their observations at the crime scene by photographs, videotape and crime scene sketches. They requested the Medical Examiner to respond and he properly entered the scene to conduct his examination. The detectives ascertained that the premises was a rental property and requested a search warrant before gathering any physical evidence. This was a smart tactic since the investigators were not aware of who lived in the house, which was now a crime scene and whether or not the reporting witness, Robert had a proprietary interest in the premises.

Detectives made some preliminary observations, which were in inconsistent with the reporting witness's statement to the patrol officers. The position of her body was such that the back door could not be opened. This proved to be vital because Robert had stated that the killer had run out the back door.

Detectives saw bloody footprints as well as blood droppings leading from the body to the bathroom. There was evidence that someone had "cleaned- up" using a towel from the bathroom, which was then refolded and found on the kitchen counter. There was only one set of bloody shoe prints on the floor, which led to the bathroom NOT the back door as Robert had stated. Therefore, the "alleged" perpetrator Rick would not have been able to exit the house as Robert had stated. The blood evidence and crime scene reconstruction indicated that only two persons were present in the crime scene. Robert soon became a viable suspect in the murder of this young woman. Detectives properly seized his Nike sneakers, which were eventually matched to the footprints in blood at the scene. His initial statements as well as his subsequent explanations to the authorities as to how Joely had died indicated that he was lying. His confession that he had stabbed her in self-defense was also an attempt to mislead the police. He was subsequently found guilty of Murder 2nd Degree.

These copyrighted materials have been excerpted from Practical Homicide Investigation: Tactics, Procedures, and Forensic Techniques Third Edition 1996 CRC Press, LLC and Sex-Related Homicide and Death Investigations: Practical and Clinical Perspectives (In Press).

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