Grimm is a new TV series inspired by Grimm’s fairy tales (which have also been adapted into an unrelated comic book series). The premise is that Nick Burkhardt, a Portland homicide detective, is a descendant of the Grimms, a line of monster hunters who fight the various monsters that inspired the original fairy tales. The show’s intersection of police procedural and the supernatural is a good fit for us, and some readers have asked about it, too. Since Grimm is a procedural, there aren’t too many legal issues on any given show, but we’ve picked up a few to discuss from the first three episodes. Spoilers ahead for anyone who hasn’t seen them.
I. Episode 1 and Warrantless Search
In the first episode, Nick and his partner Russell investigate a serial kidnapper. With a little help from a reformed Blutbad (i.e. a werewolf) named Eddie Monroe, Nick locates a suspect (also a Blutbad) at his cabin in the woods. The suspect invites the detectives in to search his home, but they don’t find anything because the victim is hidden in the basement. Seconds after leaving the home they decide to return because the suspect had been humming a song playing on a previous victim’s iPod. But is that second search legally justified?
The first thing to consider is whether the warrantless search is justified by exigent circumstances (e.g. a suspected crime in progress or destruction of evidence). But this seems unlikely to fly. The detectives already performed a thorough search of the house, and the suspicious behavior (humming a popular song, turning off the lights after the detectives left) likely doesn’t even rise to the level of probable cause, much less justifying a warrantless search, given that they didn’t find anything suspicious the first time around.
But there’s another possibility: could the detectives rely on the suspect’s invitation despite briefly stepping outside? Does it matter that the suspect shut the door? We think it does and that the second entry would not be justified. Oregon, like most U.S. jurisdictions, requires that a second entry be separately justified from an initial entry, even if the initial entry was based on consent and even if the officers found evidence of a crime during the first search. See, e.g. State v. Will, 131 Or.App. 498 (1994); State v. Weaver, 214 Or.App. 633 (2007). Since none of the usual warrantless search exceptions seem to apply (e.g. exigent circumstances, emergency aid, community caretaking), the second search was likely unjustified.
As a practical matter, though, it’s a moot point. The suspect was shot and killed after assaulting the detectives and attempting to flee, so it would be trivial for the detectives to say they heard the child screaming or otherwise had good reason to re-enter the house. That’s assuming there was even an investigation. The kidnapper was plainly guilty, so the DA would likely be uninterested in investigating the detectives’ methods.
And that brings us to the shooting: was it justified under the circumstances? Unlike the search, we think it probably was. ORS § 161.239 provides that:
a peace officer may use deadly physical force [to prevent an escape] only when the peace officer reasonably believes that: … (b) The crime committed by the person was kidnapping
Given the suspect’s violent response when the detectives returned to the cabin, along with the other accumulated evidence, Nick could reasonably believe that the suspect had committed the kidnapping. So while there would likely be a mandatory investigation into the shooting, Nick would probably be cleared of any wrongdoing.
II. Episode 3 and…Warrantless Search Again, Among Other Things
With episode 3 we again confront the issue of warrantless search when Nick and Eddie enter the queen bee’s mansion. Here the search is likely justified by the open back door, which is TV short-hand for “someone probably broke into the house.” Investigating a suspected crime in progress is the sort of exigent circumstance that can justify a warrantless search.
An entirely different issue is the dead attorney’s firm willingly handing over “total access” to her files without a subpoena. Those files almost certainly contained confidential information that would require a client waiver before they could be handed over to the police. We understand why the writers smoothed out the process, but in real life it would be much more complicated.
Finally we come to the second interrogation of one of the suspects (who Nick knows is a Mellifer, basically a werebee). Almost immediately, the suspect unambiguously invokes his right to an attorney, yet Nick continues the interrogation, including asking direct questions. This is forbidden by the Sixth Amendment. “Not only must all questioning stop when a suspect expresses his desire for counsel, but questioning can be resumed without a lawyer only if the suspect himself initiates further communication—waiver cannot be found from a suspect’s continued response to questions, even if he is again advised of his rights.” Smith v. Endell, 860 F.2d 1528 (9th Cir. 1988). By continuing to ask direct questions, Nick was violating the suspect’s Sixth Amendment rights.
Of course, this is also largely a moot point because the suspect didn’t say anything, but if he had then his answers would not have been admissible. By contrast, the tweet he sent after Nick left the interrogation room was unaffected by the Sixth Amendment violation, though the police would need a warrant to essentially wiretap the phone. Still, Nick should have known better (or the writers should have left out the demand for an attorney).
All in all Grimm is shaping up to be a pretty good show. We recommend checking it out!