Grimm Round-Up

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).

III. Conclusion

All in all Grimm is shaping up to be a pretty good show.  We recommend checking it out!

13 responses to “Grimm Round-Up

  1. I’m guessing the detectives weren’t worried about the Sixth Amendment violations in the bee episode, because they indicated that they already had enough evidence to convict to queen of murder and the two other guys of conspiracy to murder. The main purpose of the second interrogation was to track down the queen, not gather additional evidence.

    • Sixth Amendment violations can trigger the fruit of the poisonous tree doctrine. See Nix v. Williams. If the suspect had told Nick the Queen Bee’s location, anything the police found while searching for her would have been excluded under the doctrine. Now, as it happens, the tweet may have provided an independent basis for the search, but if all they had to go on was the suspect’s response, that could have seriously harmed the investigation.

      • It seemed like the entire point of that interrogation was to trick the guy into using his phone. They never expected him to answer any questions. Assuming they had a warrant for the wiretap, it seems like they were covered. Unless a defense attorney could argue that tricking a suspect into using his phone is a violation of his rights?

        Still, the detectives seemed confident they already had enough evidence. Even if everything after the interrogation was inadmissible, prosecutors would already have the bee toxin used in the murders tied to the hives at the queen’s house and her two former employees present at the first murder. After laying out the motive and the connection between the victims, it seems like even Casey Anthony’s prosecutor could get a conviction there.

      • Yes, it’s a moot point given the ruse with the phone, but it was still a Sixth Amendment violation, which we wanted to point out. What’s worse is that the writers could easily have avoided it. (We’re available for consultations, NBC.)

      • Even ignoring the doctrine and admissibility in court the police do not want to get that kind of reputation. That’s the sort of thing that can get long court battles (and possibly a few convictions undone), problematic news coverage and quite possibly someone fired. Of course if they don’t mind having a reputation for casually ignoring established rights that doesn’t suggest anything good about the rule of law there.

  2. What about when the detectives followed the suspects to the factory where they met with the queen? Could the detectives legally follow the suspects onto private property and into the building?

    • There are a couple of possibilities there. One is that they could have gotten a warrant from the property’s owner (remember that the company went bankrupt after the class action suit). Another possibility is that, since the conspirators were trespassing as well, the detectives could invoke the exception for investigating an ongoing crime.

  3. I wasn’t sure about this show after the pilot (it would’ve gotten very implausible if this detective was killing monsters every week and didn’t draw a lot of attention from the body count), but the subsequent episodes have intrigued me with Nick’s less Slayer-ish, more police-oriented approach, his focus on upholding the law and preventing violence rather than just killing things. It’s interesting to see how he tries to balance his police training and duties with his monster-fighter heritage, so I do hope they don’t gloss over the legal issues as the show progresses.

    What I’m wondering about now is Nick’s reliance on Monroe as an unofficial partner. Certainly we’ve seen plenty of shows in which cops worked with civilian consultants (see Castle as a leading example), but so far he’s doing so without telling anyone, and surely Monroe’s leaving some forensic evidence of his presence on Nick’s crime scenes. What happens when Nick’s partner and boss find out that he’s been secretly working with this civilian, particularly given that it’s the same civilian he suspected of kidnapping back in the pilot?

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  5. By the way, I’m wondering about Hank’s definition of probable cause as it relates to entry without a warrant in this week’s episode “Wallflower.” He didn’t find the shards of glass until after he snuck over the gate, which is probably illegal entry right there.

    • Yeah, Hank’s investigation of the B&B was one Fourth Amendment violation after another. If it had been a regular hotel, walking around the lobby and other public areas wouldn’t have been a problem. But a closed B&B with no current guests, which is also the owner’s home, is a different story altogether.

      Even if Hank had found evidence sufficient for probable cause it would have been fruit of the poisonous tree. Further, probable cause is a basis for getting a warrant, not a basis for performing a warrantless search. The writers should have had the owner leave with the lights on and the door unlocked; then Hank should have walked in and heard the women in the basement. Alternatively, he could have seen the broken window from a public place and called in for a warrant (cities of any size have judges on call for that kind of thing).

      Apart from that the episode didn’t raise a lot of legal issues. We may mention it in another round-up post some time, though.

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  7. While not strictly a legal issue, there’s a somewhat related suspension-of-disbelief problem I’ve noticed in the series that I suppose is the result of setting a show like this in Portland rather than a bigger metropolitan area. About halfway through the first series I realized that they were already running up against the annual murder rates (around 20 based on various sources I could find) and the annual police-involved shooting rates (7.3 according to the Police Policy Studies Council), most of them including just two officers. This of course was just on-screen, leaving aside anything mundane that we weren’t aware of as an audience. While there’s no clear marking of how much time has passed per season, it doesn’t seem like this is happening over the course of years. Why is nobody noticing this spike? As a Seattle resident, I know that in relatively low-violent crime smaller metropolitan areas, people freak (last year we had a cluster of unrelated homicides early in the year and local reporters with a bad grasp of statistics turned it into one of the biggest news stories of the season). For that matter, why so much homicide all of the sudden anyways? While a few of the killings seem to be related to the presence of a Grimm, many of the wessen involved in these incidents were just either already there or passing through for no special reason (having not watched the end of s1 or any of s2, it is possible that they’ve cobbled together a reason for this).

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