Victim owns a weekend place in the country. He hired a local Care Taker to keep an eye on the place, keep the grass mowed, etc. Victim marries floosy. About 2 wks before he disappears, Victim tells Care Taker: buy new locks for the property, and don't let any one on the property. Victim disappears and hasn't been heard from since August. After he disappeared, police got permission from Care Taker to search the weekend place. They noticed an area with freshly dug up earth, but cadaver dogs do not alert.

Police question Floosy, and she admits that she killed her husband,Victim, and dumped his bod in a river in East Texas. Bod has not been found, and police doubt that she disposed of bod in this manner. Also, parts of her story do not add up (she says she killed Victim at 9 pm on a certain Friday, but bar patrons say they saw him at 11 pm that same night).

Police would like to dig up the freshly ground dirt site at the weekend place with a back hoe.

Since the weekend place was his seporate property, does Floosy have standing to complain of the search of the weekend place?

Can Care Taker (who has been faithfully cutting the grass, etc since Victim disappeared) give permission to search? (Police are sure she will grant such permission).

Do Victim's grown children have authority to grant permission to search?

The victim has not been declared legally dead, and his will, if he has one, has not been probated.

How about a seach warrant?

If a S/W is declared no good, I want to have "secondary defensive positions" (as they say in the Army) to fall back on, to protect the search.

I think the Care Taker has authority to allow a search. I also think that Floosy would have no standing to complain of such a search, because the weekend place is Victim's seporate property, and she would lose whatever legal right to possession of the place upon his death (or at least, that's what I think is the case. All my family law I learned in a single course in law school, a long time ago.)

But I'd like some second opinions.

If principal is dead, then authority (agency) of caretaker terminated at death. If not dead, then may be no criminal case. If dead, children are presumptive heirs at law and inherited dad's non-homestead separate property at instant of his death, subject to Floosy's claim of magical will, which will no doubt arise. I would get consent from kids as well. But there are provisions that control property in case of missing spouse, so nothing is very certain. Good luck finding the bod.

[This message was edited by Martin Peterson on 05-15-03 at .]

I would get a written consent to search from the caretaker, children,if any, executor of the will, if any, and wife, if she will give one. I would also get a search warrant.

However, part of the basis for the search warrant is the fresh dug up earth that was discovered as part of an earlier consent to search by the caretaker. If he cannot validly give consent, as Martin claims, will you be able to use the fresh dug up earth as part of your probable cause for the warrant?

Would the wife have standing to contest the search if a body is found if she has no ownership interest in the property?

If your victim is not declared dead, then the caretaker still maintains whatever standing she always had, right? Her ongoing performance of the job at least lends some credibility to that argument. Also, would maybe help if she spoke to the kids, who could reaffirm her status and give her, at worst, "apparent authority" upon which it would seem reasonable for police to rely. She also helps with your PC, since given her job duties, she is the only one with any business digging up the earth on the place.

What about trying dogs again? Not to be morbid, but mightn't the scent be stronger for them after passage of time and hotter weather?

If I have my facts right, the Care Taker discovered the fresh earth, and told the police, so the discovery of the fresh earth was legal.

The smell of rotting flesh will increase for awhile, and then decrease. By this time, I doubt if there is much putrid smell left, so I doubt that cadaver dogs will help.

Do the children have authority to let people on the property upon Victim's death, or upon the probate of his estate?

In any case, I will cover all bases, & see what happens.