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I am a British writer trying to get law enforcement procedure right in a thriller set in San Diego, CA. (There are numerous plot reasons that prevent me placing this action in e.g. the UK where I am slightly less ignorant about the law and law enforcement.)

The question is, given the following circumstances, who can search the dead man's residence, and on what basis?

The hypothetical situation: a man has died in an incident at work - whether it is an accident, homicide, or what we call in the UK manslaughter (which is to say death incidental to other action and without intent...) is unknown at the time law enforcement would like to perform the search (partly in hope of discovering whether a crime has in fact been committed).

The man is reasonably believed to be in (legitimate) possession information concerning a threat to US National Security. Because of the national security issue, the FBI are involved in a counter-intelligence role. The information may be on computers/devices in the man's home.

There is no evidence per se that the man's death was due to sabotage, but there is prima facie evidence of unauthorised interference with the employer's computer systems, which might have caused the man's death.

I cannot find any basis for a warrantless search of the man's residence based on his death alone (having reviewed various sources including California Code, Government Code - GOV § 27491.3, 4th Amendment and some commentary on related Supreme Court decisions), given that he died at work.

His sole living relative (daughter) does not reside at the property. She does however have a key and might therefore be considered "in control" of it. (But if so, would she have to enter the property first?)

Questions: Is a warrant required/advisable to search the man's home, or could the daughter be asked to permit entry? If a warrant is required, who would apply for it? UCSD PD or FBI, and on what basis?

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A warrant is required: you cannot just bust into a home because the owner died. Nothing that you describe resembles the kind of emergency situation that allows a warrantless search. In order to get a warrant, you have to have a good enough reason.

Suppose that campus police found a suspicious object at the scene which was evidence of a crime and which had an identifiable connection to his home. Campus police might get a warrant to search the home, to find evidence related to the possiblity that this was a murder. That evidence could be evidence that he had uncovered a terrorist plot to bomb Needles CA, and he was killed because of that. His home computer might contain records of contact between him and the terrorists: so the judge might grant a warrant. The FBI might also go to a federal court for a warrant for a different suspected crime, for example a planned bombing of Needles. Since this involves national security, this could be a FISA court, which is a secret court for surveilling foreign spies in the US.

The daughter has the (apparent) authority to consent to a search – police are not required to inquire very deeply into a person's authority to consent to a search. If she doesn't consent, the police of the FBI might have probable cause for a warrant – it has to be an articulable reason, not just a mystical intuition (TV cop shows notwithstanding) that there must have been a crime and the house has evidence of the crime.

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  • Normally, a warrant is obtained from a state trial court with jurisdiction to issue warrants in a non-federal investigation, or from a U.S. District Court covering the place searched or with an adequate connection to the case in a federal investigation. Each state has at least one U.S. District court and sometimes several divided geographically, usually for particular counties within a state. Any law enforcement officer involved could apply for a warrant. – ohwilleke Nov 4 '20 at 22:56
  • Thank you for the careful answer (my uncertainty stemmed in part from the status of the deceased, who, I suspected, being dead was no longer a person with constitutional rights - as in UK, dead people aren't people, but their estates... ah, a another kettle of fish entirely!) – Julian Moore Nov 6 '20 at 14:49
  • Why would anyone want to bomb Needles? – pericynthion Nov 8 '20 at 10:14

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