Utah Valley University Police Department
1106
Effective:
Supersedes:
03-07-2008
Approved By:
Search and Seizure
John C. Brewer, Chief of Police
A. Orders and regulations concerning the subject of search and seizure are extremely difficult to set forth as
“hard and fast” rules. The guidelines in this order cover as many phases of the subject as possible;
however, the application of these instructions must not be arbitrary. Officers will adhere to them as closely
as possible, keeping in mind that the variations inherent in search and seizure are endless and that court
decisions are constantly changing their application.
B. Reasonable Search and Seizure
1. All citizens and their property are protected against unreasonable search and seizure.
2. The most common courses of action available to officers for conducting a reasonable search and seizure
are as follows:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
l)
m)
A valid search warrant.
A valid arrest warrant.
An arrest based on probable cause.
Search incident to a lawful arrest.
Exigent circumstances (probable cause exists, but there is no time to obtain a warrant).
Vehicle exception (based on probable cause).
Stop and frisk.
Plain view.
Consent.
Protective sweep.
Inventory.
Open fields.
Abandoned property.
C. Obtaining a Search Warrant:
1. A search warrant will be issued on probable cause and must be supported by an affidavit naming and
describing particularly the property or person to be seized and the person(s) and/or premises to be
searched. A search warrant may be issued for the following purposes:
a)
b)
c)
d)
To recover property that has been stolen or embezzled (fruits of a crime).
To seize property used as a means of committing a public offense (instrumentalities).
To seize property, the mere possession of which is a violation of law (contraband).
To seize property in the possession of any person who intends to use it as a means to commit a
public offense, or in the possession of another to whom it may have been delivered for the purpose
of concealing or preventing it from being discovered.
e) To seize property or things which constitute any evidence that tends to show that a particular
offense has been committed, or tends to show that a particular person has committed an offense
(items of evidentiary value only).
f) When the person sought is the subject of an outstanding arrest warrant.
g) Valid administrative/inspection search.
2. A search warrant may be obtained from any magistrate in the state of Utah. Warrants are normally
obtained from the judge in whose court the suspect would normally be arraigned.
a) An officer seeking to obtain a search warrant will submit the affidavit to their supervisor for
review. A completed affidavit and the completed search warrant will be presented to the magistrate
who, if satisfied that probable cause exists, will sign the warrant. The completed original affidavit
and a copy of the search warrant should be left with the judge.
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b) Only sworn testimony, in addition to the affidavit, can be appropriately considered by the
magistrate prior to the issuance of the warrant.
c) Officers are reminded that any communication, verbal or written, in support of the affidavit, must
be made under oath.
3. The affidavit must be based on the personal knowledge of the applicant or another peace officer and/or
information received from a reliable informant whose element of reliability must be established at the
time the warrant is issued.
a) An affidavit lacking sufficient facts for a magistrate to exercise the necessary judgment, even
though the warrant is issued will likely lead to the suppression of the evidence seized on the
warrant.
b) The officer must be extremely careful to describe exactly those premises composed of apartments,
duplexes, or any places where more than one family lives. If an automobile is to be searched, the
vehicle will be described and set forth distinctly.
c) Each item that is the object of the search will be enumerated, including any person sought as the
subject of an outstanding arrest warrant.
d) A warrant to search premises cannot be automatically extended to include the search of a person. If
it is necessary to search the occupants, they will be described particularly in the affidavit and the
warrant. An officer may search a person on the premises if it is reasonably necessary to protect
themselves or others from the use of any weapon that may be concealed on them, or it reasonably
appears that items enumerated in the warrant may be concealed on them.
e) When drafting an affidavit specifically requesting a nighttime search, the officer must be able to
allege there is good cause for searching then, rather than waiting until daytime (0600-2200 hours,
inclusive.)
f) The affidavit for a search warrant must present timely information, and the warrant must be
properly executed as set forth by Utah Rules of Criminal Procedure, Rule 40.
D. Confidential Informants
1. When a confidential informant has supplied information the underlying circumstances demonstrating
credibility of the informant or their information must be stated in the affidavit.
2. When the informant is used to supply the probable cause necessary and they are to remain confidential,
the reason why will be stated in the affidavit.
3. The informant should not be present when the search takes place; if they become a material witness to
the crime charged, the court will order their identity disclosed.
4. The officer should be named as the affiant even though an informant is being used.
E. Citizen Informants: A citizen who has no prior police record can be used as an informant. The affidavit
should state that the information was received from a citizen informant. The citizen, who can either be
named or listed as a citizen informant, must be qualified in the following manner:
1. The residency of the citizen must be established. Example: The citizen informant has lived in Utah
County in excess of 10 years. The citizen is a property owner in Utah County.
2. Citizen has no verifiable police record. Example: Your affiant has run a criminal history check on the
citizen. No criminal history was found.
3. Citizen is in good standing in the community. Example: The citizen informant is a registered voter in
the county. The informant has children in school in the county. The citizen is generally regarded as
law abiding.
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4. The citizen’s reason for providing the information. Example: The citizen informant in this case came
forth because they feel the conduct of the suspect is reprehensible. The citizen will not receive any
reward for providing this information.
5. The citizen informant’s ability to observe the criminal activity. Example: The citizen informant was at
a public park for a picnic when they observed the marijuana being possessed by the person in campsite
three.
F. Executing a Search Warrant:
1. A UVU police officer may serve a search warrant anywhere in Utah. No private person may serve the
warrant except while assisting an officer, and then the officer must be present to act in its execution. It
is not necessary that the officer who writes the warrant be present at its execution.
2. An officer may break in a door, window, or any part of a house, building, or vehicle to execute a search
warrant if, after announcing their authority and purpose, the officer receives no response within a
reasonable time, or the officer is denied admittance. The amount of force used to enter a building must
be reasonable under the circumstances.
3. The issuing magistrate will normally state in the warrant that it is to be executed in the daytime;
however, if the affidavit indicates there is good cause for searching at night (e.g., property sought might
be gone by daytime), they may direct that the warrant be executed at any time of the day or night.
Nighttime hours are 2201 – 0559 hours, inclusive.
4. To protect officers and other persons from incidents of mistaken identity, doubt of credibility, or any
other situation of misunderstanding, the following instructions will be followed when serving a search
warrant:
a) Before the execution of the search warrant, a supervisor will be notified. It is the supervisor’s
responsibility to evaluate manpower needs and safety factors by reviewing the circumstances
surrounding the request for the warrant, and to determine what procedures for the actual execution
have been planned. A supervisor will be in charge of all search warrant executions. The supervisor
will direct an officer who is thoroughly familiar with the facts of the case to have a copy of the
search warrant in their possession, hand it directly to the person being served with the warrant, and
explain its purpose at that time.
b) A briefing will be held in all instances where a forced entry may be necessary. The briefing will
include raid and arrest operations planning (i.e., assignments, sketches, photographs, special
equipment needs, etc.).
c) Communications will be notified of the location, date, and time of the warrant execution.
d) If warrant service is outside of the UVU campus, the shift commander in the jurisdiction in which
the warrant is to be served will be notified. The person making notification is responsible for
documenting the date and time of notification and to who notice was given.
e) If forced entry into an occupied structure is anticipated, the supervisor in charge will comply with
the following:
(1)
(2)
(3)
(4)
(5)
Make provisions for communications and specialized equipment needs.
Coordinate assistance from specialized support units.
Consider availability of medical resources.
Develop strategies for approaching, entering, securing and leaving the structure.
Discuss the threat potential, the anticipated necessity for using force and making arrests with
all entry team and search team members.
(6) When the potential for violence is imminent or significant, the supervisor in charge shall
review the plan of execution with their immediate supervisor to evaluate effectiveness and
approve the necessity of action.
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(7) The first officer at the door of the house or building will be a supervisor or officer in uniform.
Other officers present and in view should be in uniform or other identifiable dress, such as a
raid jacket. If circumstances involve surrounding the building, guarding at the back door, etc.,
uniformed officers will be assigned, as necessary, to ensure that persons inside the building are
aware that police officers are initiating the action. Body worn cameras will be activated for all
warrant services.
(8) Undercover officers whose dress and appearance are not conventional for law enforcement
personnel, should not be involved in the actual execution of a search warrant, unless their
particular training and knowledge is necessary for the execution of the search itself. In any
event, they will not be among the first officers to enter the premises, and normally will not be
in view of any persons inside the premises until entry has been accomplished. Exceptions to
this require advance approval by the supervisor in charge.
(9) One officer will be assigned to audio record all conversations surrounding the execution of the
warrant, with special attention to the warnings given and the reasons and authority for
entrance upon the property. The audio recording will be impounded as evidence and a new
recording will be used in each instance.
(10) All officers will wear body armor in every instance involving pre-planned high-risk situations.
(11) Photographs will be taken of any damage caused by the execution of the warrant. Photographs
will be taken of each room before and after the search.
(12) Any deviation from the procedures for executing search warrants will be cleared through the
supervisor involved in the investigation for their permission to change the procedure.
(13) Returning a Search Warrant: A warrant must be executed and returned to the issuing
magistrate promptly. Any delay in executing the warrant might result in the probable cause
being lost and search invalidated. A written list of property seized will be returned with the
warrant after the warrant is executed.
G. Seizure of Property Not Listed on Warrant: During the execution of the warrant, officers may seize
contraband or items of property that the officer has probable cause to believe are stolen, even though such
property is not named on the warrant. Officers may not routinely examine non-seized items for serial
numbers not in plain view without probable cause to believe the items are stolen.
H. Receipt for Seized Property: A detailed receipt for the property seized by a search warrant will be given
to the person from whom it was taken or in whose possession it was found. If a person is not present, the
receipt will be left at the location where the property was found.
I.
Telephonic Search Warrants
1. Telephonic search warrants may be used under the same circumstances as a standard search warrant,
but will normally be used when time is a factor. Examples of situations where a telephonic search
warrant may be obtained are:
a) Information indicates that evidence is going to be at a particular place for only a short period of
time before being removed or destroyed.
b) An arrest has been made on a person’s premises and probable cause is developed to search further
than permitted by incident to arrest rules, especially where there are other persons present on the
premises who could conceal or destroy the evidence while a warrant is being obtained.
c) An officer is on a person’s premises for some purpose other than to make arrests or searches, i.e.,
conducting an interview, and while there, develops probable cause to believe there is evidence on
the premises that would be destroyed or concealed if the time were taken to obtain a warrant.
d) Probable cause is developed to search beyond the scope of a warrant that has already been obtained,
such as discoveries made while executing the original warrant.
2. The implementation of a telephonic search warrant procedure will require the use of audio recording
equipment.
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3. A short outline of the facts to be presented to the magistrate over the telephone should be prepared prior
to making the call to avoid leaving out important information and the search warrant form should be
completed.
4. All recording equipment should be tested, as a faulty recording could invalidate the affidavit and the
warrant.
5. When practical, one other officer should be present to serve as a witness to the conversation.
6. The requesting officer will identify themselves to the magistrate and notify them the audio recorder has
been activated. Prior to reciting any facts pertaining to probable cause, the magistrate must put the
officer under oath; failure to give the oath at this time will invalidate the warrant.
a) After stating the date and time, the officer will recite the facts that constitute probable cause.
b) If the magistrate finds that probable cause exists, the officer must read verbatim the completed
search warrant to the magistrate.
c) The magistrate will direct the officer to sign the search warrant.
d) The magistrate is required to direct that the recording be brought before them for transcription,
certification, and filing after execution of the warrant.
e) Just prior to terminating the call, the officer will state the time when the conversation with the
magistrate is finished.
7. The search warrant will be executed in the same manner as any other search warrant.
8. A transcript of the recorded affidavit, the search warrant, and a written list of all property seized shall
be returned to the issuing magistrate promptly. The recording will be placed into evidence.
J. Consent to Search
1. Consent searches must be voluntary, without force, threats or promises. If the person giving consent to
search is a minor, a parent or guardian shall be contacted after the search to provide them with
information regarding the search.
2. The voluntariness of a person’s consent is determined by the totality of the circumstances, using a
reasonable person standard. The following factors should be considered:
a)
b)
c)
d)
e)
f)
Knowledge of the right to refuse.
Language of request. Officers must convey a request, not a command.
Number of officers present. The fewer officers, the more likely that the consent was voluntary.
The length of time during which consent was sought should be brief.
Surrounding circumstances, i.e., display of weapon, detention by handcuffs.
Whether the person is in custody or investigative detention. Consent is more likely voluntary if the
person was free to leave; least likely to be found voluntary if under arrest.
g) Ability to understand the request for consent.
h) Age of accused, education, and intelligence.
3. A person who gives consent for the search waives the requirement for a warrant or probable cause.
4. The person giving consent must have the authority to give it.
a) A person has authority to consent if such person has common access or control over the area to be
searched.
b) If the officer reasonably believes that the person granting consent has such authority, the consent
should be valid, even if it is later found that the person lacked to authority to consent. However, it
is incumbent upon the officer to investigate and ask questions to determine a person’s authority to
provide consent.
5. The scope of a consent search is determined by a standard of what is reasonable.
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a) The officer may search only in places where a reasonable person under those circumstances would
have believed were included in the consent.
b) When the officer’s presence on the premises is based solely on consent, the officer may not search
the entire premises unless the area of search is within the scope of consent, e.g., officers may have
consent to search the basement, but not the bedroom.
6. Consent may be withdrawn at any time. The search must be immediately terminated unless probable
cause has been developed.
7. If challenged, the officer has the burden to show that the consent was voluntary and not the product of
coercion. If possible, the officer will have the person sign the Consent to Search form.
K. Search Incident to Lawful Arrest (Search Without a Warrant)
1. Non-warrant searches incidental to arrest are justified under the circumstances indicated below. An
arrest that is unlawful may not be made lawful by the finding of contraband on the person arrested.
2. Warrantless searches incident to a lawful arrest are valid:
a) To seize weapons or other articles that might be used to attack the officer.
b) To seize the means suspects might use to affect their escape.
c) To prevent the destruction of the fruits or instrumentalities of the crime, or evidentiary items of the
crime for which the arrest was made.
3. Immediately upon a full custody arrest, an officer may search the person of an arrestee, items under the
arrestee’s immediate control (wallet, backpack, etc.) and the area within the arrestee’s reach.
4. Within Reach
a) Reach is not confined to arm’s length but includes the areas reachable by the person if a lunge or
quick move was made to gain possession of a weapon or of destructible evidence.
b) If it is necessary for the person arrested to move about after arrest (e.g., to put on clothing or
assemble belongings), those areas to which the person continues to have access may also be
searched for weapons or destructible evidence.
5. If an officer observes a criminal violation (including criminal traffic) and intends to cite and release the
person at the scene, the person will not be searched incident to arrest.
a) Officers may conduct a limited frisk of outer clothing for weapons if the officer can articulate facts
supporting a reasonable belief that the person may be armed or dangerous to the officers or others.
b) A search may also be conducted on probable cause that the subject possesses evidence, contraband,
fruits of a crime, instrumentalities, and/or items subject to lawful seizure, on their person, even
though they will be cited and released.
L. Exigent Circumstances (Search Without a Warrant)
1. A search warrant is not required when exigent circumstances exist, which may include the following:
a) Hot pursuit of a felony suspect.
b) Possibility of violence (sexual assault, hostage situation, domestic violence, etc.).
c) Probability of immediate destruction of evidence.
2. Whenever there is a need to conduct a search of a premises and make an arrest before the search
warrant can be obtained, the officer will consider the following:
a) Are there grounds to arrest any other persons present so they will not dispose of the evidence while
a search warrant is being sought?
b) Is there some risk that someone might enter and dispose of the evidence while a search warrant is
being obtained? Can an officer be left to guard the premises while another obtains the search
warrant?
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c) Evidence obtained in a search of premises without a warrant at the time of arrest may be admissible
in court if there are justifiable facts showing all the following:
(1) There was probable cause for the search.
(2) Special circumstances existed making it impossible to safeguard the premises while a search
warrant was being obtained after the arrest.
(3) Special circumstances existed which required making the arrest before a search warrant could
be obtained.
3. Officers must act in good faith, as the courts will examine their actions to determine, if in fact, a search
warrant could have been obtained. Officers will consider the seriousness of the offense in determining
whether an exigency exists.
4. Officers may respond to an emergency (medical, fire, etc.) without obtaining a warrant if they have a
reasonable belief their immediate assistance is needed to protect life or property.
M. Protective Sweep: The officer must have a reasonable belief based on articulable facts that the area to be
swept harbors a person posing danger to those on the arrest scene. It is a cursory inspection of places where
a person may be found. The sweep may not last any longer than is necessary to dispel the reasonable belief
of danger.
N. While Searching for Suspect
1. Police lawfully on the premises for the purpose of making an arrest may search the premises for the
purpose of finding the individual to be arrested.
2. When the person is known to be there and to be armed, it is permissible for officers conducting the
search to look into small places where a weapon might have been hidden until the person has been
located and placed under arrest.
3. Evidence may be seized without a warrant if there is probable cause to believe it will aid in
apprehension or conviction.
4. Absent consent or an exigency, both an arrest warrant and search warrant are required to search the
residence of a third person to search for a suspect believed to be inside the residence.
O. Search and Seizure of a Vehicle Without a Warrant
1. Search Incident to Arrest: Automobiles and other conveyances may be searched incident to a lawful
arrest of an occupant under the following guidelines:
a) There must be an in-custody arrest.
b) The search must be “contemporaneous” with the arrest. Normally the search will be conducted
immediately after the occupant is arrested and secured in the police vehicle.
c) The scope of the search includes the entire passenger compartment and all open or closed
containers therein (including glove compartments and middle consoles). Locked containers may be
opened. The trunk cannot be searched solely for the purpose of search incident to a lawful arrest.
2. Vehicle Exception Based On Probable Cause
a) If probable cause exists to believe a vehicle contains evidence or contraband and the vehicle is in a
mobile condition when the officer has lawful access to it, a warrantless search may extend
anywhere in the vehicle, including closed containers, in which the items being searched for may be
found. Once the object of the search is found, the authority for a warrantless search ceases.
b) If probable cause exists to search a container that is in the vehicle, a search warrant is not necessary
to search the container even though there is no probable cause to search the entire vehicle.
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3. Abandoned: If a vehicle is truly abandoned, there is no need for a search warrant as there would be no
reasonable expectation of privacy in it. An officer may search an abandoned vehicle as long as the
officer is legally on the property where the vehicle is found. This does not mean a vehicle that is
dismantled, or possibly junk on a persons’ private property is abandoned. Any time a person would
have a reasonable expectation of privacy in the vehicle, it is not abandoned.
4. Vehicle Inventory
a) Officers will conduct a vehicle inventory any time a vehicle is impounded under police authority
(abandoned, seized for narcotics violations, etc.). An inventory may be conducted without a
warrant or probable cause under the following conditions:
(1) The vehicle must be impounded (e.g., pursuant to the arrest of the driver; after towing the
vehicle for violations, or for related enforcement or safety reasons as defined by state law); and
(2) The officers conduct the inventory within the scope of this policy as an administrative
procedure.
b) An inventory may include the entire vehicle and all containers therein whether locked or otherwise.
An inventory shall not be conducted as a subterfuge for a criminal investigation.
c) Inventories will be conducted as follows:
(1) The officer shall secure authorization from a supervisor to impound the vehicle.
(2) An inventory may be conducted at the location where the vehicle is seized unless limited by
reasons of safety or practicality. If so, it may be inventoried at a later time following
impoundment.
(3) A vehicle impounded will be inventoried as to its entire contents. Closed containers whose
content officers are unable to determine from examining the container’s exterior will be
opened. The inventory will be conducted to protect police personnel and the University from
claims of stolen, lost or vandalized property, as well as protecting police personnel from
possible injuries from dangerous items.
(4) During the inventory, officers will use keys to open a locked trunk or glove compartment. If
keys are unavailable, instructions will be obtained from a supervisor as to the method to be
used in opening it.
(5) Officers will complete the vehicle impound sheet and the required written report detailing the
reason for impounding the vehicle and the supervisor who authorized it.
(6) Vehicles stored in the department’s impound lot will be tagged with an evidence tag. The keys
will be impounded.
5. Impounding Seized Vehicles
a) All vehicles seized or impounded as abandoned will be immediately released to a departmentapproved tow company to store the vehicle at their facility.
b) All vehicles impounded for safekeeping will be immediately released to a department-approved tow
company to store the vehicle at their facility.
c) All vehicles seized or impounded as evidence or possible forfeiture will be impounded at a
department approved property yard.
(1) An officer will accompany all vehicles seized as evidence to the impound yard for chain of
custody.
(2) The impounding officer will be responsible for the processing and release of the vehicle.
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P. Plain View and Open View
1. Officers may seize items in plain view when the officer is lawfully positioned to see the item, the item’s
incriminating character is immediately apparent and the officer has a lawful right of access to the item.
2. Plain Feel
a) If during a valid frisk, the officer feels something that the officer immediately recognizes as being
crime-related, the officer may seize the item without a warrant.
b) The officer must be able to articulate probable cause to believe that the item was contraband or
otherwise seizable as being crime-related (training, experience, etc.)
3. Open View: Officers may not immediately seize items they see in open view. Open view means the
officer sees an item the officer has probable cause to believe is crime-related (evidence) from a vantage
point outside a constitutionally protected area. Unless exigent circumstances develop, or another
exception to the warrant requirement applies, officers must obtain a search warrant before they seize
items in open view.
Q. Searches of Opposite Sex
1. Officers will not search a prisoner of the opposite sex unless there is reason to believe the prisoner has a
weapon and the officer’s safety may be in jeopardy by not doing the search.
2. When practical, an officer of the same sex as the prisoner will conduct the search.
3. Based on the situation, officers will be guided by their own judgment in searching suspects of the
opposite sex. If an officer of the same sex is not available, a second officer should witness the search.
R. Booking: Immediately upon arrival at the booking area, the prisoner will be thoroughly searched by the
officer to be sure all personal property (except basic clothing) has been removed. The property will be
inventoried.
S. Strip Searches: Strip searches will be conducted only with supervisory approval and the following are
met:
1. The individual is in custody and has been charged with a felony.
2. There is reasonable suspicion to believe that the person may be carrying a weapon; may be in
possession of an item that might be used to injure themselves, i.e., prescription medication, etc.; or
carrying drugs or other contraband or property having evidentiary value.
3. The search will be limited to a visual search of the body and a thorough search of the person’s clothing.
Anal and vaginal cavity probes will be conducted only by competent medical personnel and only after a
search warrant has been obtained or with the prior signed consent of the suspect.
4. The circumstances of any strip search shall be fully documented in a report.
5. Only an employee of the same sex of the suspect may conduct a strip search. A back-up of the same
sex will witness the procedure. The search will be conducted in private.
6. A strip search of a juvenile requires authorization of a supervisor.
T. Emergency Search of Person
Various courts have allowed warrantless searches of persons when those searches are in response to
emergency situations concerning an injured or unconscious person requiring aid, rather than a search in a
criminal investigation.
1. The exigency presented by the injured or unconscious person must be readily apparent.
2. There must be a need to intrude upon the privacy interests of that person for one or more of the
following reasons:
a) Identification of the person in order to contact relatives or friends.
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b) Determine need for specific medication, i.e., medical bracelet or card, or evidence of medication.
c) Discovery of the nature of the injury or problem by examination.
3. The scope of the search is limited to the extent necessary to effectuate the purpose.
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