Bill of Rights puts limits on searches

After the news that Destiny Norton's body was found at a neighbor's residence, anger and questions by close friends of her parents boiled over: Why didn't the police look harder?

One local law professor said, simply put, the law was not entirely on the side of police to allow them to seek a search warrant when Craig Roger Gregerson reportedly denied a police request to further search his place for signs of Destiny.

University of Utah law professor Erik Luna said the U.S. Supreme Court has yet to address the issue of just how far police can cite "exigent" or emergency circumstances to skirt the Fourth Amendment right against unlawful search and seizure in the quest to find a missing child.

While public criticism directed at police has suggested officers should have searched through "every inch" of each house in the area — regardless of consent — the risk is that any evidence that was found would have been thrown out of court later.

Luna said the biggest tool police had was asking residents to consent voluntarily to a search of their homes. "Consent is kind of this grand exception to the Fourth Amendment," Luna said. "You can consent to anything as long as it's knowing."

But if a person declines to consent to a search, the law states that cannot be used as sole probable cause to get a warrant.

"If a person says 'no,' does that provide you with a basis to do what he says you can't do?" Luna asked.

Normally no, but Luna said in the context of a missing child, time can be of the essence to the point that police could have sought a search warrant from a judge to search Gregerson's residence.

Statistics show that the survival rate of an abducted child after the first 24 hours is about 1 percent.

Unfortunately, the law is not clear, and no such case has been brought before the U.S. Supreme Court. Similar cases have defined the ability of police to enter a residence or vehicle without a warrant, but all have involved a perceived danger and violation of the law.

"Should (police) be allowed to go to the basement and search without a warrant or consent of the homeowner? . . . That's a question the Supreme Court has not addressed," Luna said.

Ultimately, police were able to amass enough probable cause to get a warrant to search the apartment and the crawl space beneath it. Some have criticized the police for not getting the warrant sooner. Luna estimated that had police argued for a warrant citing the exigent circum- stance of a missing child, the warrant would have likely gone to the Utah Supreme Court — taking weeks if not years.

"The case sounds very disturbing and sad," Luna said. "My heart goes out to her family."

If anything, Luna suggested that perhaps it is time for the courts to review such cases in order to clarify what police can do in their search for a missing child.

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E-mail: gfattah@desnews.com