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.
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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.
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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
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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:
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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.
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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
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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.
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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.
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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.
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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:
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1. Region 1-
2. Region 2-
3. Region 3-
4. Region 4-
5. Region 5-
6. Region 6-
7. Region 7-
8. Region 8
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