This series – Dealing with a sexual assault allegation from beginning to end
Part III – Search and Seizure After Your Are Accused of a Sex Crime
If you’re the subject of a criminal investigation, one of the first things the police may want to do is search your home and personal items and question you.
Whenever you are with the police for questioning, whether it’s on the side of the road, at your home or office, or at the police station, ask if you are under arrest. Either way, you should make it clear that you DO NOT waive your rights and DO NOT consent to voluntary tests. Instead, ask to speak to a sex crimes lawyer immediately.
When it comes to your home and personal items, the fourth amendment prohibits unreasonable searches. Therefore, the police need to have probable cause that a crime has been or will be committed and demonstrate that a reasonable person would believe there could be evidence of the crime in that location1. To get consent for such searches, they just need you to say yes to the search (DON’T!) or obtain a warrant.
In a sex crime investigation, personal property will likely include biological property such as DNA gathered from cheek swabs, urine, saliva, or hair samples, and blood draws. If an officer asks you to do any of these types of searches, DO NOT GIVE CONSENT unless you have spoken to a sex crimes attorney. Biological samples may also come from your clothing, bathroom, or bedding.
Why Is It Important to Say NO to Voluntary Tests and Samples?
Biological tests are very strong documented, factual evidence. Police do not collect samples to prove you’re innocent. Instead, the samples can impact your case far beyond the initial investigation and accusation and lead to unforeseen consequences much later in the judicial process. The results of those drug/alcohol tests and DNA samples can affect preliminary hearings, plea bargaining, trials, and even sentencing hearings in ways you might not anticipate – resulting in longer jail time or additional probation requirements!
Without your voluntary consent, police must get a warrant signed by a judge, wherein the police officer must sign an affidavit attesting that it is likely there is evidence of a crime in or on those items. Technically, that likelihood should be supported by the idea that any “reasonable officer” would agree. Therefore, you should always ask for your own copy of the warrant and the probable cause affidavit. (The probable cause affidavit may not be available, but you should ask anyway.) Once the warrant is provided, you should cooperate with police. However, you should still ask them for their business cards and identification, and why and what they are looking for. Cooperating with police DOES NOT mean making other small talk, answering their questions without an attorney present, or giving them passwords. It DOES mean staying out of their way and not touching anything. The police will carry out the warrant without your involvement.
Do I Have to Give Police Passwords to My Phone or Computer?
NO, you do not have to give them passwords to computers and phones. Police know this, so instead of asking for it, most will ask you if you will enter it yourself. By entering the passcodes, you are implying consent and voluntarily giving them access to personal data that is outside the scope of the warrant, especially now that so much data is stored “in the cloud.” An example would be if police have a warrant to search your phone for a text message, but they also find questionable pictures (nudity, drugs, weapons). Even if it is innocent or from several years ago, it can impact your case immediately or raise questions about your character that will affect you later in the process – again leading to unforeseen consequences. If police officers do in fact find evidence of another crime during the search, they will charge you whether or not they find evidence for the original investigation.
Why Is It So Important Not to Touch Anything?
If you get in the way of an investigation or appear to have altered any potential evidence in an investigation, police can charge you with any number of crimes. Additional charges can include, but are not limited to obstruction of justice, obstruction or official business, failure to comply, and/or tampering with evidence. In many cases, these charges are “easier” to prove than charges related to the original investigation because they will be recorded. Furthermore, the penalties for these crimes can be far greater than the consequences of the crimes for which you were originally being investigated, especially if you are found not guilty of the original charges or they are dropped altogether.
What Would an Attorney Do if They Are Accused of a Crime?
The first thing an attorney who is accused of a crime would do is to GET AN ATTORNEY! So again, the best thing you CAN DO during a police investigation is: 1) Ask if you’re under arrest & find out who and why they’re there 2) Ask for a copy of the warrant and probable cause affidavit 3) Invoke your right to remain silent, 4) Stay out of the way and cooperate with non-invasive directives of police, but don’t give passwords 5) REQUEST AN ATTORNEY!
1…no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized… (U.S.C. Amend. IV & O.R.C. Article 1 Section 14. https://codes.ohio.gov)