September 24, 2021 / James Warnet

Divers and Evidence Part 2: Rules You Didn’t Know Existed

*If you’re just joining us, this post is part of an ongoing series that examines the issues around public safety divers and evidence dives. To get the most out of this post, I highly recommend you first read the into post right here and part 1 here.

Let’s quickly dip back into our daydream…

The diver makes a soft groan as he reaches down to pick up his fins, the weight of his dive gear making it hard to move. He’s fully dressed now and ready to dive.

As he straightens back up with his fins, he glances back at the water and an unpleasant frown starts to darken his face. He looks back at the cop.

Diver: “This pond looks like it’s filled with goose shit and garbage. Any idea who owns it?”

Cop: “Actually yes. The suspect owns it. This is his land back here and that,” the officer points an ominous finger across the lake, “is his house.”

Diver: “He ditched the gun in his own pond?”

Cop: “Let’s hope he did and you find it!”

The diver mutters a few curse words under his breath and starts heading for the water, completely unaware of the disaster he’s walking himself into…


This tiny snapshot in time could happen anywhere, in any jurisdiction. 

You may have even been in a similar situation, yourself.

But there’s an elephant-sized problem here…

A problem driven by a myth that just doesn’t want to die off…

The context of the problem

In the United States, there are a whole bunch of rules that control how law enforcement can go about finding and bringing law breakers to justice.

The most important of these rules are spelled out in the Constitution…

And one of the most important of these rules for law enforcement (and divers searching for evidence) is the 4th Amendment, which says:

“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 persons or things to be seized.”

U.S. Const., amend. IV.

So what happens if law enforcement breaks the rules?

Glad you asked.

During an investigation any evidence, confessions, people, etc. collected by law enforcement in a way that violates the 4th amendment protections quoted above can trigger a legal hammer called the exclusionary rule.

Also known as the “fruit of the poisonous tree doctrine”, the exclusionary rule basically says that any evidence collected illegally cannot be used in court.

It will be as if the evidence does not exist, even if that also means the suspect will go free because of it.

So a murder weapon with blood on it illegally collected from a location? No longer usable. The Jury will never even hear about it.

End Context.

The 4th Amendment and civilian dive teams

Here comes that myth I was talking about…

“My dive team is volunteer and not law enforcement. We don’t have to follow those rules.”

Flat. Wrong.

As far as the Courts are concerned, if law enforcement asks you (non-law enforcement) to perform a search and/or seizure for them, to further an investigation…

…Then you are an extension of them and all the same rules apply to you.

Put another way, if law enforcement asks you to search a lake for a murder weapon, then all of your actions must comply with the 4th amendment.

Otherwise, there is a good chance the evidence will not be usable in court. 

Looking back at our daydream, you should start to see the problems taking shape.

The diver was asked by law enforcement to search a body of water for evidence. That body of water is located on private property (in this case, the suspect’s property).

In most cases, law enforcement can only enter private property to search for evidence after getting a warrant or consent from the owner.

And the diver, now as an extension of law enforcement, is bound by the same rules.

Do you want to be a Mediocre Diver… or a Prepared Diver?

The Mediocre Diver will just get in the water and start searching…

And if the murder weapon can’t be used in court because of some “rules” Mediocre Diver will just shrug and say “that’s not my problem. I did what I was asked to do.

Mediocre Diver is not well-suited for evidence recovery calls because Mediocre Diver is satisfied with only knowing the bare minimum aspects of their job. 

Mediocre Diver is fine with not being the best.

Prepared Diver, on the other hand, takes their job seriously and recognizes that they are a part of a bigger operation.

Prepared Diver isn’t satisfied with “half-assed” or “OK” and Prepared Diver double-checks things to make sure nothing slips through. 

You’ve already changed on your way to being the Prepared Diver…

How do I know? 

Well, in part 1 of this series, I presented our running daydream and asked “what questions should you be asking?”

Then, in this post, I gave you a bit more of the scene. 

So let me ask you again… What questions should you be asking?

Now, right here at this line of this post, after learning about the 4th amendment…

If presented with a similar situation… You know to ask…

“Officer, do we have a warrant or consent to search this lake?”

With just that single question and the tiny bit you know now, you can prevent disaster, even if some people wrongly think it’s “not their job.”

And not only do you know to ask… you know why you should ask.

The Prepared Diver is far from Mediocre.

We should all want to be Prepared.

Let’s blow the doors off some other myths that Public Safety Divers have an especially hard time with…

… and also something that separate divers from everyone else.

Need to share this with someone?

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