Author Archive | James Daily, guest-blogging

The Adventure of the Fruit of the Poisonous Tree

(I’ll be honest: this post isn’t really about the fruit of the poisonous tree so much as it’s about Sherlock’s possible status as a state actor and thus whether or not the restrictions of the Fourth Amendment apply to him. The poisonous tree bit just makes for a snappier title and is at least somewhat related to the main topic.)

In many ways Sherlock Holmes is the Ur-superhero, prefiguring Batman. They are both detectives possessing no supernatural abilities, only a keen intellect, physical training, a faithful assistant, and a relentless drive to solve or prevent crime. In the case of the Sherlock Holmes of Elementary, they even share a certain degree of wealth — though Sherlock doesn’t flaunt it, he does use his wealth to solve problems on a few occasions. They also share a strong connection with the police.

It is that connection with the police that is so often a troubling feature of Elementary. Often Sherlock will make a point of his police affiliation in order to gain access to a building or get a person of interest to talk. But at other times he will claim that, since he is not a police officer, he does not need a warrant to perform a search (searches that often include breaking and entering). Which is closer to the truth? Or can he have it both ways?

I. The Fourth Amendment and the State Action Requirement

Like most of the Constitution, the Fourth Amendment restricts the powers of the federal and state governments, not private individuals. In every state except Texas, if a non-state actor independently performs an illegal search or seizure, any evidence obtained is still admissible. In every state, if a government agent does so, any evidence obtained — and any evidence derived from that […]

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The Adventure of the Commandeered Snow Plow

Ordinarily at Law and the Multiverse we stick to more fantastical topics (“superheroes, supervillains, and the law”), so when we were given the opportunity to write some guest posts for the Conspiracy, we realized this would be an ideal occasion to discuss something more down to earth — not to mention more well-known than some of the things we write about. And as it happens over the past several months we’ve received several great questions from readers about the CBS show Elementary.

The first question comes from Jeb, who wrote in about the episode “Snow Angels“, in which Sherlock attempts to commandeer a city snow plow for transportation during a blizzard. When the driver, Pam, refuses, Sherlock invokes his authority as being affiliated with the New York City Police Department. Unsurprisingly, Pam balks at that as well, and Sherlock ultimately resorts to a bribe. Jeb asks:

  • Would a regular policeman have the legal authority to commandeer the snow plow?
  • Is it plausible that Sherlock, as a consulting detective, has the authority to commandeer the plow?
  • Once the bribe is offered and accepted, does Pam have any legal defense or is this straight up bribery?

I. Commandeering Vehicles

We’re all familiar with the trope: a police officer finds himself or herself in need of a vehicle and so announces to the driver that they are commandeering it for police use. But what is the legal basis for this, particularly in New York? In this case, note that Sherlock isn’t seeking merely to commandeer the vehicle but also Pam’s services.

One basis for this might be N.Y. Penal Law § 195.10, which makes it a misdemeanor to refuse to aid a police officer when commanded to reasonably aid the officer in effecting an arrest or to prevent […]

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