The basis for the murder charge in this case hinges on the use of the blood evidence found on Mr. A's shoes as an indicator that he was at the scene of the crime proximate to the death of the victim. The collection of that evidence eight days after his arrest on unrelated charges constitutes a search and as such, is subject to a two-prong test of the standard rules of evidentiary procedure as well as the doctrine of "reasonableness."1 This particular search fails on both prongs.
First, the police waited too long to take Mr. A's clothing to the forensics lab. Had the officers decided to have the clothing tested when they discovered that Mr. A had an outstanding warrant, they might have been able to make a case for a search incident to arrest and tied the two incidents together. That itself would probably be questionable, however, due to the fact that the arrest was for a parole violation and not related to the murder. Certainly, waiting eight days to send the clothing over to the lab constituted a search and seizure of Mr. A's property; one that required more than simply obtaining the clothing from the evidence locker and sending it to forensics for analysis. For this search to be conducted at such a late date and still remain within the rules of evidence collection, the police officers needed to provide a judge with probably cause so that a search warrant could be issued. The police are not allowed to simply go on a fishing expedition, even though they might suspect that Mr. A could be more than a material witness. Accordingly, the subjection of the clothing to the lab violates the rules of evidence collection under standard criminal procedure and fails the first prong.
Similarly, the search of Mr. A's clothing violates the doctrine of reasonable expectation. As Saltzburg (2003) notes, "[t]he Supreme Court has long used a standard of reasonability to determine what citizens should be able to expect from encounters with law enforcement officials as well as how officers should act" (p. 145). There is no doubt that Mr. A had the right to expect reasonable behavior from the police regarding the murder investigation. First, this reasonable behavior on the part of officials might have included a search of his property within the scope of the charges for which he was arrested. Had the officers been gathering evidence of his parole violation, they would have been reasonably acting in accordance with the rules. Second, Mr. A could reasonably expect that if he was considered a suspect in an investigation unrelated to the parole violation charges, he would be advised of that inquiry so that he could retain counsel or inform his attorney and protect his rights. This did not happen prior to the search. Finally, after being advised of the new charges pending against him, Mr. A would have the right to expect the police to act in a timely manner and perform their search incident to his arrest for that crime. None of these things occurred, and the delay in searching his property for an unrelated crime-combined with the charges being filed after the unlawful search and seizure of his clothing-was unreasonable and a violation of his rights. Thus, the