EDGEFIELD COUNTY SHERIFF’S OFFICE
POLICIES AND PROCEDURES
Subject
Search and Seizure without
a Warrant
Applicable Standard(s)
CALEA 1.2.3
SCLEA 1.5
Amends
I.
Date
4-22-08
Section No.
601
Page No.
1
No. Pages in Section
5
Rescinds
Re-evaluation Date
Purpose
To provide general guidelines and procedures for agency personnel to follow in
conducting searches without a warrant.
II. Policy
The Fourth Amendment guarantees the right for people to be free from unreasonable
search and seizure of their homes, persons, and property. Illegally seized items of
evidence are inadmissible in court and may be cause for a lost criminal case.
Therefore, it is the policy of the agency to conduct searches that are both legal and
thorough and in strict observance of the constitutional rights of the persons and
property involved.
III. Definitions
Contraband - Any goods illegally possessed.
Curtilage - the area around the home to which the home life activity extends.
Motor Vehicle - Any vehicle operating or capable of being operated on public streets
or highways to include automobiles, trucks, trailers, recreational vehicles, mobile
homes, motor homes and any other type of vehicle, whether self-propelled or towed.
IV. Procedures
A. Confrontation of a Suspect
1. An officer may stop and briefly detain a person for questioning even
without probable cause for an arrest, if the officer has knowledge of
specific facts that lead he/she to reasonably suspect the person is involved
in criminal activity.
POLICIES AND PROCEDURES
Subject
Search and Seizure without
a Warrant
Date
Section No.
601
Page No.
2
An encounter with a person does not amount to a “seizure” unless a
reasonable person would believe, under all the circumstances, that he/she is
not free to end the encounter.
B. Stop and Frisk
1. An officer has the right to stop and perform a pat-down search of the outer
garments of a suspect for weapons if the officer has knowledge of facts that
reasonably lead him/her to believe that the suspect is involved in criminal
activity and may be armed and dangerous.
2. An officer is permitted only to externally feel the outer clothing of the
suspect. Officers may not place their hands in pockets unless they feel an
object that could reasonably be a weapon, such as a firearm, knife, club or
other item. An officer cannot remove items from a suspect’s clothing that
he/she does not reasonably believe to be weapons, except as may be
provided for in section C., “Plain Touch”, below.
3. If the suspect is carrying an object such as a handbag, suitcase, briefcase,
sack or other item that may conceal a weapon, the officer should not open
the item but instead place it out of the suspect’s reach.
4. If the external feeling of the suspect’s clothing fails to disclose evidence of
a weapon, no further search may be made. If evidence of a weapon is
present, an officer may retrieve that item only. If the item is a weapon, and
the possession of which is a crime, the officer may make an arrest of the
suspect and complete a full-custody search of the suspect.
5. If an officer reasonably believes that a motorist whom he/she has stopped
may become dangerous and able to gain control of a weapon in his/her
vehicle, the officer may conduct a brief search of the vehicle, limited to
areas where a weapon might be placed or hidden.
6. An officer may obtain enough cause to stop and frisk from sources of
information other than his/her own personal observation.
7. An officer may use handcuffs or other protective measures during an
investigative stop, if the circumstances of the stop create a degree of danger
to the officer(s) that reasonably justifies such measures.
2.
C. “Plain Touch”
Officers who, during the course of a “stop and frisk”, detect objects in a
suspect’s clothing that are recognized by the officer, through the officer’s sense
of touch, as contraband or other incriminating evidence, may seize that evidence
and utilize it in a subsequent arrest and prosecution. Three critical requirements
of the plain touch rule as approved by the Supreme Court of the United States
are as follows:
1. The stop must be lawful;
2. The frisk must be authorized; and
POLICIES AND PROCEDURES
Subject
Search and Seizure without
a Warrant
Date
Section No.
601
Page No.
3
3.
Any object detected by sense of touch during the frisk that is obviously not
a weapon must be immediately identifiable by the officer as contraband or
other criminal evidence.
No further squeezing, sliding, or other
manipulation of the object through the clothing is permitted.
D. Search by Consent
1. Officers may conduct a search of a person or property even though he/she
does not have a warrant or even probable cause if the officer has obtained a
prior consent of the person who will be affected by the search, or of some
one who has the right and the authority to act for the person who will be
affected by the search.
2. Consent must be voluntary and a product of the free will of the consenter.
3. Consent must be positive; silence does not imply consent.
4. The person consenting must have actual or apparent authority to permit the
search. Examples where such authority is lacking:
a. A landlord cannot consent to search a tenant’s premises;
b. A hotel or motel owner or employee cannot consent to search a guest’s
room, at least until the rental period is over.
5. The search may be conducted only as far as the permission received. The
consenter controls the conditions, scope, and time of search and may
revoke his/her consent at any time.
6. The consent to search should be obtained in writing using an approved
Consent to Search Form AD/116.
E.
Search of a Motor Vehicle under a Movable Exception
1. An officer may make a warrantless search of a motor vehicle which was in
motion, or at least mobile, when seized, and which the officer has probable
cause to believe contains contraband or evidence of a crime. This is true
even if the vehicle has been taken into Agency custody.
2. If an officer obtains probable cause to search a motor vehicle after it has
lost its mobility, or has been taken into custody, a search warrant must be
obtained before making a search.
3. A motor vehicle search founded on probable cause may extend to any part
of the vehicle, including closed containers found inside, in which the object
of the search can be concealed.
4. Containers located in a motor vehicle may be searched without a warrant if
probable cause exists to believe that the container contains evidence or
contraband.
5. Vehicles of any type that have been immobilized in one location for use as
a temporary or permanent residence or storage facility, or which are
otherwise classified by the law, as residences or buildings should not be
treated as a motor vehicle for Fourth Amendment purposes.
POLICIES AND PROCEDURES
Subject
Search and Seizure without
a Warrant
F.
Date
Section No.
601
Page No.
4
Scene of a Crime
1. As allowed by an “exigent circumstances” exception to a warrant
requirement, officers may enter a building or premises where a crime has
occurred and may remain on the scene without a warrant for a reasonable
time to investigate the crime scene.
2. Absent “exigent circumstances”, officers responding to an emergency may
seize evidence in plain view but any extended search of premises directed
against the person possessing Fourth Amendment protection in that
premises, must be done with the consent of the person in lawful possession
or with a search warrant.
3. Once officers have completed processing a crime scene and relinquish
control, the location is then subject to all the protections granted by the
Fourth Amendment against unreasonable searches and seizures.
G. Exigent Circumstances
1. An officer may make a warrantless search of anything, whether personal
belongings, a vehicle, or a building, anytime he/she has good reason to
believe it is necessary to save a life or prevent injury or serious property
damage.
2. An officer may make a warrantless search for evidence that he/she has
probable cause to believe is in the place or thing to be searched and that
he/she has reason to believe will be destroyed or moved before a warrant
can be obtained.
H. Inventory of Seized Vehicles
The inventory of seized vehicles shall be performed in accordance with agency
policy # 605,“Towing, Impound, and Inventory of Vehicles”.
I.
Other Warrantless Searches
1. Abandoned Property
Officers may, without a warrant, seize and search property that he or she
has good reason to believe has been abandoned.
2. “Hot Pursuit” or Exigent Circumstances
a. Officers may make a warrantless entry and search when in “hot
pursuit” of a suspect of a serious crime and exigent circumstances exist
in which the safety of the officer(s), the safety of the public, the escape
of the person sought, or the destruction of evidence is at risk.
b. In the case of a minor offense, a warrantless entry of a home to make
an arrest is not justified. An officer should either obtain consent for
the entry or obtain a warrant.
c. The authority of hot pursuit searches is limited, thus once the legitimate
object(s) of the search have been found, the search must stop.
POLICIES AND PROCEDURES
Subject
Search and Seizure without
a Warrant
3.
4.
5.
6.
J.
Date
Section No.
601
Page No.
5
Open Fields
An officer may enter and search any unoccupied or undeveloped area that
lies outside the “Curtilage of a dwelling.”
Plain View
An officer may without a warrant seize any contraband or evidence of a
crime that is in “plain view” if three conditions are met:
a. The officer(s) must be in a place where they have a right to be;
b. The evidentiary nature of the items discovered must be immediately
apparent to the officer(s); and
c. The discovery of the evidence must be inadvertent.
Protective Sweep
a. Officers entering a house or other premises to arrest an individual may
make a protective sweep of the premises for the limited purpose of
discovering persons on the premises who might present a danger to the
officers.
b. In conducting the protective sweep incident to arrest, the officers must
confine the sweep to a cursory visual inspection of those places in
which a person might be hiding.
School Searches
Officers, including but not limited to, School Resource Officers, are
subject to the full range of Fourth Amendment restraints when actually
conducting or actively participating in searches in schools.
Seizure of Evidence
Any evidentiary items discovered in the course of a warrantless search shall be
collected, handled, packaged, marked, transported, and stored in accordance
with agency policies # 803, “Collection and Preservation of Evidence” and 804,
“Property and Evidence Control.”
__________________________
Adell Dobey, Sheriff
V. Documentation:
ECSO Form LO/116 Consent to Search