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HomeMy WebLinkAboutPolicy 501 Search and Seizure R s OSHKOSH POLICE DEPARTMENT POLICY AND PROCEDURE TITLE: SEARCH AND SEIZURE POLICY SERIES: 501 Effective Date: 04-03-14 Date Issued: 03-20-14 Chief of Police: Scott D. Greuel Date Signed: 03-19-14 Chief of Police CALEA Standard: 1.2.4, 70.1.1 Review Date: December Review By: ISB Captain/PSD LT Rescinds Policy Dated: 06-08-99 SECTION DESCRIPTION 501.01 General Policy &Purpose 501.02 Search and Seizure With a Warrant 501.03 Secrecy of Search Warrants 501.04 Execution of Search Warrant 501.05 Seizure of Evidence 501.06 Return of Warrant 501.07 Search and Seizure Without a Warrant 501.08 Lawful Inspections 501.09 Vehicular Searches and Seizures 501.10 Search of Traffic Violators 501.11 Search of Arrestee 501.12 Search of Person on Probation, Parole, or Extended Supervision Directive 108 is replaced by provisions of this policy. 1 501.01 GENERAL POLICY When participating in a search and seizure situation, members of the Oshkosh Police Department must remember the primary mission of the Department is to protect the rights of all citizens. The admissibility of evidence at a trial must be ensured while protecting the employees against criminal and civil liabilities incurred as a result of unauthorized searches and seizures. A search is an examination of a person,place, motor vehicle or any other thing for the purpose of discovery of contraband or evidence of guilt to be used in the prosecution of a criminal action. A seizure is the taking of a person, motor vehicle, or item of evidence into custody by either taking it to a private or law enforcement storage facility. A search of a person,place or object may be made and things may be seized when the search is made under the following conditions: I. Pursuant to a valid search warrant. 2. Incident to a lawful arrest, as authorized under judicial exceptions including public places, open fields,plain view, custodial searches and inventories. 3. Abandoned vehicles and automobile searches. A search may be authorized with the consent of a person with standing to grant such consent. It may also be allowed within the scope of a lawful inspection or pursuant to a stop and frisk situation. In any search, officers should remain cognizant of the possibility for the existence of dangerous objects such as needles and razor blades. PURPOSE The following is intended to provide officers of the Oshkosh Police Department with direction and procedures to assist them in some of the most common search and seizure situations. These instructions have been drafted in conformance with judicial interpretations in effect at the time of policy issuance. 501.02 SEARCH AND SEIZURE WITH A WARRANT The officer requesting a warrant must provide sufficient information from which a judge may find probable cause to believe that the objects sought are currently in the location to be searched. The information must also state why the objects sought are subject to a lawful seizure. This information is generally provided on the Winnebago County District Attorney's Office Search Warrant Form or on a separate affidavit. 2 In order for a search warrant to be valid, the warrant must: 1. Be in writing with the original form signed by the issuing judge or judicial authority; 2. Be directed to a specific law enforcement person with a command that a specific person or location be searched; 3. State specific articles that are being sought,provide as detailed a description of the articles as possible; 4. Order that such articles be brought back before the court named in the warrant; and 5. Contain accurate and correct information. Officers should note that anytime items are seized on the strength of an invalid warrant, such items may be inadmissible in a trial. Oshkosh Police Officers should seek search warrants through consultation with the Winnebago County District Attorney's Office. However, Wisconsin Statute 968.12 authorizes officers to obtain warrants from judges either in person or via telephone as situations dictate. Officers may only search a crime scene without a search warrant when done pursuant to Wisconsin State Statute 968.10, which sets forth the conditions for conducting such a search. These conditions are set forth in Policy 109.08 Legal Process - Searches. Absent those conditions officers are required to obtain a search warrant. 501.03 SECRECY OF SEARCH WARRANTS Wisconsin statutes direct that search warrants be issued with all practical secrecy. Disclosure of information concerning a search warrant prior to its execution is subject to criminal sanction unless disclosure is necessary for its successful service. The policy of the Oshkosh Police Department maintains the confidential nature of all police business except that which is subject to public review, either by law or policy. Consequently, the Department will disclose such information on a need to know basis until such time that the involved information becomes public record. This is not meant to preclude the legitimate sharing of information between the Department and other legitimate agencies or law enforcement concerns. 501.04 EXECUTION OF SEARCH WARRANT When received, a search warrant must be executed within five (5) days. Officers shall use a minimum amount of force as reasonable and necessary to execute the warrant. If damage to 3 property occurs, this damage will be photographed by Oshkosh Police Department personnel. An explanation of the damage shall be included in the investigative report. Officers executing search warrants should photograph the location to be searched prior to and after the search if possible. The purpose of this is to make a record of the condition at the premises in the event that damage claims are made at a later date. It is also essential that one (1) officer be designated as an evidence collection officer for purposes of maintaining the chain of evidence. When the search officer locates an item to be seized, it should be photographed in the specific location in which it was found prior to its removal. The officer in charge will take the following actions prior to entry when executing a search warrant, other than a judicially approved no-knock warrant: 1. Knock on the door; 2. Announce his/her identity as a police officer; 3. Announce his/her purpose; and 4. Allow a reasonable time for any occupant to permit entry of the officer. The above entry procedure is not necessary when the warrant specifically authorizes un- announced entry. This should be requested when obtaining the warrant. Factors which may indicate the need for no-knock authority are: 1. Danger to persons inside the premises. 2. The presence of weapons and/or dangerous persons. 3. The likelihood of resistance. 4. The likelihood of escape of wanted persons. 5. The likelihood of destruction of evidence. In cases where officers have announced their authority and purpose, forced entry is permissible when necessary. This applies to situations where the officer suspects evidence is being destroyed, someone inside the building is in danger, the building is vacant, etc. 501.05 SEIZURE OF EVIDENCE Officers have the right to look in any location in which an item described in the warrant may be reasonably hidden. In order for evidence not specifically described in the warrant to be validly seized, four (4)requirements must be met: 4 1. The evidence must be discovered in the course of a lawful search. 2. The evidence is contraband or in conjunction with facts known to the officer before the search provides a connection between the evidence and criminal activity. 3. The evidence was discovered in the physical area of property subject to search by authority of the warrant. 4. The evidence was found prior to the time that all specifically named items in the warrant were found. When all the above standards are met, the seizures are valid. Officers must terminate the search when all described warrant items are found. Anyone on a premise during execution of a search warrant for that location may be frisked if reasonable suspicion exists that they are armed and searched if probable cause exists that they are concealing evidence the warrant seeks. Mere presence does not justify an automatic search of people present during the execution of a search warrant. 501.06 RETURN OF WARRANT After a search warrant is executed, the officer to whom the warrant was directed is responsible for returning the warrant to the court designated therein with a written inventory of the property seized. This must occur within 48 hours of the execution. The officer must also, within five (5) days of the execution of the warrant, file with the court an affidavit in support of the issuance of the warrant. All items seized in connection with the execution of the search warrant shall be properly submitted to the evidence control center for storage in conformance with Department policies at the earliest opportunity. These items will be stored as long as the seized evidence is needed for judicial proceedings and in accordance with Policy 142 Property Handling. All property other than contraband or evidence for further proceedings will be returned to the parry from whom it was seized in accordance with Policy 142 Property Handling. 501.07 SEARCH AND SEIZURE WITHOUT A WARRANT It is the policy of the Department to conduct searches and seizures with a warrant whenever reasonably possible. There are occasions when practicality dictates that these activities occur without benefit of a warrant. Officers may only search a crime scene without a search warrant when done pursuant to Wisconsin State Statute 968.10, which sets forth the conditions for conducting such a search. These conditions are set forth in Policy 109.08 Legal Process - Searches. Absent those conditions officers are required to obtain a search warrant. 5 A search may be validly conducted without a warrant under the following circumstances: l. Incident to Arrest The officer incident to arrest can conduct a complete search of the arrestee and limited search of the immediate area accessible to the arrestee, subject to the vehicle limitations set forth in this policy. This search must be made immediately after the arrest and shall be primarily directed to self-protection,prevention of escape, and discovering the fruits of a crime or evidence thereof. When a lawful arrest occurs in an area which the arrestee has an expectation of privacy and other persons who may be in a position to alter or move evidence, the area may be secured pending the issuance of a warrant. Also incident to full custody arrests, it may be possible for officers to make a protective sweep of the premises. Protective Sweeps must: A. Stem from facts which cause a reasonable belief that someone else who could harm officers may be on the premises. B. Be done in good faith. C. Not serve as a pretext for an exploratory search. 2. In Public Places No search warrant is required for an officer to search a place open to the public except in situations where the person has a reasonable expectation of privacy. This includes public lands,places of business (not including private offices), and common areas of apartment buildings. 3. Plain View Searches An officer may seize items in plain view when the officer is in a place where he/she has a right to be and when there is probable cause to believe that the items to be seized are contraband, evidence of a crime or the fruits or instrumentalities of a crime. If an officer is lawfully in a place to make an arrest, the officer may not go into other places or rooms solely for the purpose of searching for items which may be in plain view. 4. Exigent Circumstances Officers who have a reasonable belief that the safety of a person(s) is endangered have the right to enter and search a place or object to the point that they satisfy their concern for 6 the safety of the public. Absent a reasonable belief, officers are required to obtain a search warrant. 5. Custodial Searches Any person lawfully taken into custody is subject to being searched. Strip searches must be authorized by a supervisor and are governed by Policy 500 Strip Searches. 6. Consent Search A search warrant is not required in instances where the person against whom the search is directed gives his/her consent to the officer to search. This consent must be freely given without duress and must be documented if at all possible in the form of a Consent to Search form which will be retained. The person giving consent, if other than the person against whom the search is directed, must have authority to use and/or occupy the premises to be searched. 7. Abandoned and Other Property All property which is taken into custody by Department members will be inventoried immediately. In order to avoid unwarranted claims against the Police Department and to protect departmental personnel, the above policy is construed to include a thorough inventory of the contents of closed containers (e.g. purses, backpacks, wallets, boxes, etc.) Officers shall open closed containers and inventory their contents in all cases where such inspection will not cause undue damage to the container. Containers which are securely locked shall be listed as such on the inventory form and attempts to enter locked containers which would obviously result in damage to the object should be avoided. Items found during the inventory process shall be listed on departmental property forms. They may then be returned to the original container which will be secured in the property room using normal procedures. An officer in a place where he/she has a right to be may search and seize the contents of abandoned property without a search warrant. Examples of abandoned property include an automobile left in a public park over an extended period of time or an item dropped or thrown by a suspect in the process of flight. 7 501.08 LAWFUL INSPECTIONS Certain licensed premises, such as restaurants or taverns, are subject by law to unannounced inspections. An officer may search a business premise without a warrant although this authority does not extend to the owner's private office or, if applicable,private attached dwelling. 501.09 VEHICULAR SEARCHES AND SEIZURES It is the policy of the Department to obtain search warrants for motor vehicles unless exigent circumstances would make it impractical or counter-productive to the investigation. A search of a motor vehicle without a warrant may be legally permissible in certain situations, such as for officer safety, incident to a custodial arrest, and when probable cause exists to believe the vehicle contains evidence of a specific crime. When possible, the obtaining of a search warrant prior to searching will reduce the opportunities for defendants to challenge the constitutionality of the search. When a vehicle is stopped and there is reasonable suspicion that someone in that vehicle is armed or dangerous, officers may require the person and other occupants to exit the vehicle and to submit to a frisk for weapons. In such circumstances, the officer may only perform a cursory search of portions of the vehicle that are readily accessible to occupants in order to discover weapons. Officers may not enter locked containers or other portions of the interior of the vehicle under this exception to look for weapons. A. ARIZONA vs GANT If any person in a vehicle is the subject of a full-custody arrest, that person and containers or portions of the car accessible from the passenger compartment of the car may be searched, as long as the requirements established by Arizona vs. Gant have been met. These requirements are: 1. The person is under arrest but unsecured; and 2. The person under arrest is within reaching distance of the passenger compartment of the vehicle at the time of the search; OR 3. The scope of the search is limited to evidence related to the crime that the person was arrested for. A search of the interior of a vehicle incident to arrest is constitutionally permitted if it is conducted while an unsecured arrestee is within reach of the passenger compartment. An officer may also conduct a warrantless search of a passenger compartment immediately prior to the arrest of an occupant if that occupant is within reach of the vehicle's interior at the time of the search. Arrestees should not be unsecured and within reach of a vehicle simply to justify a search incident to arrest under Gant's proximity rule. 8 B. CARROLL vs UNITED STATES A search of a motor vehicle without a warrant is legally permissible under Carroll vs. United States if probable cause exists to believe the vehicle contains the fruits or instrumentalities of a specific crime and exigency exists. Under these circumstances, the US Supreme Court decision permits the search of a vehicle and locked containers within the vehicle because of the reduced expectation of privacy people have with an automobile and how easily the vehicle may be moved. The following factors should be considered when making a decision concerning a warrantless vehicle search: 1. The likelihood of removal of the vehicle. 2. The nature of the evidence and the possibility of removal, destruction, deterioration or alteration of the evidence. A warrant will be obtained when an evidentiary search of a vehicle is required and none of the above exceptions exist. All impounded Vehicles are subject to a mandatory inventory pursuant to Policy 206 Towing, Placarding, and Impounding of Vehicles. 501.10 SEARCH OF TRAFFIC VIOLATORS Persons charged with traffic violations are subject to search if they are taken into custody. Officers are advised to use discretion in these matters. The Department does not authorize searches of traffic violators who are issued citations and not taken into custody. Searches are permitted in these cases only when exceptional circumstances are present. 501.11 SEARCH OF ARRESTEE When an officer takes a subject into custody on the strength of an arrest, with or without a warrant, the officer will search the subject, removing any evidence, contraband, or other item or substance which could potentially cause harm to either the officer, the arrestee, or a third party. This will occur prior to placing the arrestee in any police vehicle or facility such as the booking room or interview room. Officers will inspect the police vehicle or facility prior to placing an arrestee inside that area to ensure that no potential harmful or damaging items or substances are present. Officers will also inspect the area after the arrestee has been safely removed from the area to ensure nothing was left behind by the arrestee. 9 501.12 SEARCH OF PERSON ON PROBATION, PAROLE, OR EXTENDED SUPERVISION A. The State of Wisconsin allows police to search the person, the residence, or the property of certain people on probation,parole or extended supervision under specific circumstances. This includes an area under the control of anyone placed on probation, or released on parole, or extended supervision if: 1. the police have reasonable suspicion the subject is committing, is about to commit, or has committed a crime OR the police have a reasonable suspicion that the subject is committing, is about to commit, or has committed a violation of his/her conditions of probation or release; 2. the person is currently supervised by the Wisconsin Department of Corrections on probation,parole, or extended supervision related to a Wisconsin conviction; and 3. that period of supervision began on or after December 14, 2013. In other words, the same standard that permits a Terry stop of any person allows for a search under this Act if the supervision requirement is met. This type of search is not applicable to people who are placed on probation or released on parole or extended supervision before December 14, 2013. Any search conducted under this section must be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. This section does not change anything else in reasonable suspicion law. Officers cannot move a subject a great distance, or hold them for an unreasonable time, or arrest them without probable cause. Furthermore, officers cannot compel identification under this section if a person does not identify themselves or the officer does not otherwise know the identity of that person. B. A law enforcement officer who conducts a search under this section must, as soon as practicable, notify the Department of Corrections and the Chief of Police of the search via email. The email address to send the notification to will be based on the region where the offender's Probation Agent is assigned. This can be found by making a records Query of Probation/Parole (QPP) for the detainee. The first number in the five digit identification number for the agent will identify the assigned region for the agent. The officer will use the list of regions and emails listed below to address the email to DOC. The subject line of the notification e-mail must include the phrase "Act 79 Search Notification". The body of the e-mail must indicate the offender's name and DOB as well as a brief description of the search and its results. The following are the e-mail addresses for each region of the Department of Corrections: 10 1. Region 1- 2. Region 2- 3. Region 3- 4. Region 4- 5. Region 5- 6. Region 6- 7. Region 7- 8. Region 8 11