1. "Search warrant"
Posted by harry on May-28th-03 at 11:51 PM

One of the things that I have never read anything about in the Borden saga is search warrants. I guess it is a moot point because the "girls" offered no resistance to any searches on the property.

Well there was one incident with the attempt at finding the handle to the handleless hatchet that Mullaly claimed he saw where the police were denied permission to search, But that was during the trial in 1893.

On Thursday, before Jennings was officially on the case, the police did a fairly weak search without warrants.  I can see the first day as being described as a crime scene investigation and the police being allowed great leeway. Saturdays search, without permission, would have seemed to require a warrant.

This is the law governing search warrants:

"The Constitution of the United States, Amendment IV, declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

That's a good question.  I don't think we've thought of that before.
Maybe someone knows the laws about searching in Mass., c. 1890's?

The first search Thursday seems to have been spontaneous.  Doherty says he saw both bodies and then went around to the undertakers store, Gorman's, to phone in to the Marshal.
WHen he returned, there was Mullaly, Allen, Denny, Medley and Dolan:
:
Q.  When you came back the second time, what did you do then?
A.  I went and spoke to the servant girl first.
Q.  Had some talk with her?
A.  Yes Sir.
Q.  What did you do then?
A.  I suggested to Mr. Mullaly that we search the house.
Q.  Then what did you do?
A.  I started to do it
--Prelim. pg. 332

He says Bridget met them on the stairs going up toward her room and she went with them and opened the door(s).  They looked all around except Emma's room.  Morse was there by the time he came back from phoning, but of course Emma wasn't.  At that time,Technically whose house is it anyway?

This is what I found when looking up legal definitions in connection with Fourth Amendment rights.  The text is from the website below after I'd clicked first on 'Valid Search and Seizure without a Warrant' and then on the word 'Consent'.  It seems to have some relevance to this issue.

http://caselaw.lp.findlaw.com/data/constitution/amendment04/

Consent Searches .

--Fourth Amendment rights, like other constitutional rights, may be waived, and one may consent to search of his person or premises by officers who have not complied with the Amendment. The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent and awareness of the right of choice. Reviewing courts must determine on the basis of the totality of the circumstances whether consent has been freely given or has been coerced. Actual knowledge of the right to refuse consent is not essential to the issue of voluntariness, and therefore police are not required to acquaint a person with his rights, as through a Fourth Amendment version of Miranda warnings.  But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields to these factors rather than makes his own determination to admit officers. When consent is obtained through the deception of an undercover officer or an informer gaining admission without, of course, advising a suspect who he is, the Court has held that the suspect has simply assumed the risk that an invitee would betray him, and evidence obtained through the deception is admissible.   

Additional issues arise in determining the validity of consent to search when consent is given not by the suspect but by a third party. In the earlier cases, third party consent was deemed sufficient if that party ''possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.''  Now, however, actual common authority over the premises is no longer required; it is enough if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search.

So it looks as though the law was flexible to start with and has loosened even more since its inception. There's also information on the site as to the history of warrants etc.


 

Most interesting Diana,  This line caught my eye right away:

"But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields to these factors rather than makes his own determination to admit officers."

Page 469, trial - Fleet testifying:

"Q.  Will you describe all that you did and said after you got up into the hallway up stairs---the front hallway up stairs?
A.  I went to Lizzie's door, rapped on the door.  Dr. Bowen came to it, holding the door, ---opening the door, I should say, about 6 or 8 inches, and asked what was wanted.  I told him that we had come there as officers to search this room and search the building.  He then turned around to Miss Borden and told me to wait a moment.  He then opened the door again and said----

Q.  Had he shut it in the meantime?
A.  He had; he closed the door.  He then opened the door again and said that Lizzie wanted to know if it was absolutely necessary for us to search that room.  I told him as officers, murders having been committed, it was our duty so to do, and we wanted to get in there.  He closed the door again and said something to Miss Borden, and finally opened the door and admitted us."

I would seem to me that Fleet was using his authority to make the search in this instance. Again tho, it's a moot point as no evidence was uncovered.

I agree, Harry.  Fleet, at the very least, is definitely verging on asserting "his official status and claim of right" at that particular point -- and Lizzie certainly may have yielded to those factors.

I thought Gorman ran a paint and wallpaper store.  Did he do undertaking on the side?  (Beside the point, I know, but I'm curious.)

I'm not a lawyer or a policeman, but I think no search warrant is needed when a crime has obviously committed. The US Constitution tells what is needed, then or now; "probable cause", etc.

A search warrant needed to search for evidence of a crime?

The Fourth is to avoid being harassed needlessly by officials who may have been looking for baksheesh to go away. Like in some 3rd world countries? No search is allowed on "general principles".

(Message last edited May-29th-03  8:48 PM.)

Doherty at the Prelim., pg 331:
Q.  Then what did you do?
A.  I came back.
Q.  Came back to the station do you mean?
A.  To the house.
Q.  You went down to the station and notified the marshal?
A.  No Sir, I ran around the corner to a telephone, half a minute run from there.
Q.  What store was that?
A.  Mr. Gorman's, the undertaker. Then I came back.
Q.  Where was the telephone?
A.  Right around the corner of Spring street, just the second door, a little store there.
........

Rebello, pg. 240 has A.P. Gorman's store at the corner of Second and Borden St.'s.

Also, 564:

"Borden Street (corner of Borden and Second Streets)

17-19 [location #'s] Augustus P. Gorman's Paint Store; Mr. John Cunningham called Marshal Hilliard from Gorman's store at 10:50 a.m. Mr. Gorman later testified the clock at his shop 'didn't keep very good time ...'(Trial: 650).
.... Mr. Cunningham left and walked to the Borden house. He returned to Gorman's store to call reporters at the Fall River Daily Globe and the Fall River Evening News".

--You have such a good memory Edisto!  After you said paint shop bells went off and I remembered Cunningham.
Since (again) we have a conflict in locations maybe there were two Gorman's?
--Second & Borden Streets intersection is North, whereas Spring St. is just around the corner, right near the church.

--I have a memory of a search ready to start at the house, and Emma or Lizzie said they had to wait for Jennings before they could start.  Does anyone remember this?  And Jennings arrives and asks if they were questioning anyone, and told no, and he said then they could proceed.

--That was good stuff, Diana & Harry!  Really interesting.



(Message last edited May-30th-03  1:10 AM.)

Kat -- is this what you remember about Jennings and the search?  It's from the Witness Reports.  It's Desmond's report on Monday's search.

D. DESMOND
On Monday Aug. 8, 1892., F. L. Edson, P. Connors, M. Quigley, H. Medley and D.Desmond went to Borden house, Second street, to make a search of the premises. Mr.Charles Bryant, Mason and Contractor, went with us to assist if necessary. I, Desmond, inquires for either of the Borden family, and Lizzie Borden came. I told her that we had
been sent by Marshal Hilliard to make some further search of the premises. Lizzie said “if there is going to be anything done, or anything said, Mr. Jennings must be here.” this took place in sitting room. Hanscomb was sitting in the room at the time. While waiting for Mr. Jennings, Emma came into the sitting room from front hallway, and said “if you only  want to do some searching, you can go right ahead and search any place you wish; but if there is any conversation to be had, Mr. Jennings better be here.” I told her we came only
to search. About the time we got ready to search, Mr. Jennings came. I told what Lizzie said, also want [sic] Emma said. Mr. Jennings said “thats all right, go right ahead.”

Wow!  That was good!  That's it.  Thanks for finding it.  I think it's important to include it here, and I don't think I would have checked the Witness Statements for it.
Well Done.

Hanscomb being there, probably advised Lizzie to say no until Jennings came.
The girls seemed to have the necessary advice from their hired guns since Friday!  (If that is definetly when Jennings joined the *team*.)
I wonder what good Morse was?

It would seem like the police thought that there was some sort of approval needed.  They always seemed to ask as opposed to just taking over the house.

I wonder what would have happened had Lizzie or Emma said no.

I suspect no objection was made because the police do not need a warrant in the case when a crime happened and was observed by them.
Else it would have come out before this. Usually the search warrant is needed when they have "probable cause" etc for their search.

I was re-reading the Witness Statements and they walked away with pieces of the house and nothing about a seizure or a court order?

pg. 14:
"Engaged Maurice Daly, carpenter, to go to the Borden house, about one o’clock, Marshal, Mr. Seaver and I. From there we took a marble slat from the west end of the dressing case, a piece of moulding that capped the mop-board, and a piece of plaster, to which was adhered the wall paper. Each of these articles had spots of blood on them. Mrs. C. J. Holmes then asked “do you want the bed spread and pillow shams?” The Marshal replied “if you please.” These articles were taken from the northwest room on the second floor, where Mrs. Borden was found. A piece of wood was taken from the west casing of the door which leads from the dining to the sitting room where Mr. Borden was murdered. This piece of wood had a spatter of blood on it. There was also taken one pair of ladies low tie shoes, and one pair of ladies black stockings.
From the barn we took one willow basket containing two pieces of round lead pipe, and a number of pieces of scrap sheet lead; and one wooden box in which were pieces of round and sheet lead. The basket and contents were found up stairs, and the box and its holdings, down stairs. All were brought to the station house, and locked in the store room by Marshal Hilliard."

--They took axes and harchets and Lizzie turned over an outfit, and include all the stuff that was buried and dug up, they took all that too.  They also took the sofa and the lounge cover from the dining room!

Interesting...I know that a lot of "undertakers" were originally in the furniture business.  Apparently Andrew Borden fell into that category.  But paint and wallpaper?  Maybe the answer is in my older dicitonary.  The first definition given for "undertaker" is "One who undertakes."  Maybe Gorman "undertook" painting and wallpapering.

2 different locations are given.
I figured there were 2 "Gorman's".
But you do know your "Gormans"!

As to the post #13...I want to include Sanctioned Safe-Cracking !!!

(Message last edited Jun-1st-03  2:03 PM.)

Red = Borden House, Second St.

Blue (with arrow) = Gorman's undertaking, 2nd house from corner of Spring & Second St.

Green = Gorman's Paint & Wallpaper, corner Borden & Second St.


I'll bet the cops knew where all the closest telephones were on their beat, in public establishments that most probably would be attended, open.



(Message last edited Jun-2nd-03  12:04 PM.)