Public Copy CASPER POLICE DEPARTMENT POLICIES AND PROCEDURES. Investigative Procedure: Search & Seizure. 4 - Operations 03C -

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1 Chapter: Change # 4 - Date of Change CASPER POLICE DEPARTMENT POLICIES AND PROCEDURES Number: 4.03C Section: 03C - Investigative Procedure: Search & Seizure RECORD OF CHANGES/REVISIONS Section Changed Description of Change/Revision Section: 4.03C CPD Policy and Procedure Manual [v2017] Page i

2 Chapter: 4 - CASPER POLICE DEPARTMENT POLICIES AND PROCEDURES Effective: 3/2017 Signed: Total Pages: 10 Number: 4.03C Section: 03C - Investigative Procedure: Search & Seizure Chief of Police POLICE DEPARTMENT PSCC 4.03C.1 POLICY All search and seizure procedures shall be strictly conformed to the law and to this policy. 4.03C.2 PURPOSE This policy establishes rules and guidelines for the lawful and appropriate application of search and seizure. 4.03C.3 SEARCH AND SEIZURE A. Officers of the Casper Police Department are regulated in searches and seizures of persons, places, and property by the Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution. B. The Fourth Amendment to the U.S. Constitution prohibits government intrusion upon the privacy and property rights of the people. Areas specifically afforded constitutional protections are persons, houses, papers, and effects. The Fourth Amendment contains two distinct clauses: 1. All search and seizure must be reasonable; 2. Probable cause must exist before search or arrest warrants may be issued. a. Warrants must particularly describe the place(s) to be search and person(s) or thing(s) to be seized. 4.03C.4 REASONABLENESS AND EXPECTATION OF PRIVACY A. A search under the Fourth Amendment is defined as a government intrusion into a place where people have reasonable expectation of privacy (REP) (Katz v. United States); or when the government trespasses on private property with the intent to obtain information (United States v. Jones). The guiding principles of the Fourth Amendment, and therefore of the law of search and seizure, is "reasonableness" and expectation of privacy. Any search and/or seizure which is not "reasonable" under the "totality" (all) of the circumstances violates the Fourth Amendment and is unconstitutional. Officers shall strive carefully and energetically to assure that their actions are at all times "reasonable." A police action is "reasonable" if there are good, lawful, reasons for it. Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 1 of 10

3 4.03C.5 THE WARRANT REQUIREMENT A. Searches and seizures generally require a search warrant in order to be reasonable. Officers conducting searches without a warrant bear the burden of proving that the search was reasonable. B. In order to obtain a search warrant an officer must be able to show probable cause to believe that specific persons or property to searched/seized may be found at a particular location. C. Rule 41 of the Wyoming Rules of Criminal Procedure (W.R.Cr.P.) governs procedures relating to the issuance, form, execution, and return of search warrants. 1. Application for a search warrant and seizure warrant must be made in the form of a sworn affidavit that will be reviewed by a judicial officer, who, upon finding of probable cause, will issue the warrant. D. Certain constitutional rules apply to entry into private premises by officers to affect an arrest: 1. Entry into the home of a person to be arrested requires an arrest warrant, absent a valid consent, hot pursuit or exigent circumstances, as detailed later in this policy. 2. Entry into third party premises to arrest a person who is a visitor (not a resident) of the premises requires a search warrant, absent a valid consent, hot pursuit or exigent circumstances, as detailed later in this policy. 3. Note: Specific requirements and authorization for arrests of persons on private premises is covered in greater detail in Policy 4.04 Arrests & Custody Procedures. 4.03C.6 EXCEPTIONS TO THE WARRANT REQUIREMENT A. Some search and/or seizure actions do not require warrants but are nevertheless subject to strict legal requirements and procedural rules. Following is a summary of those requirements and rules: B. Frisk. 1. This is a limited, "pat-down" type, protective search of outer clothing and quickly accessible carried belongings. It is permitted only during lawful seizures of persons (Terry Stops), and only if the officer has reasonable suspicion that a person is armed and may constitute a danger to the officer or another person based on specific objective facts and logical conclusions that the officer's experience enables him/her to draw from those facts. The officer must be able to articulate that suspicion. 2. If the subject is in or beside a vehicle, and if the officer reasonably suspects the presence of weapon(s) that could be quickly reached and used against him/her, he or she may conduct a limited search of quickly accessible portions of the passenger compartment for weapons. 3. Frisks usually involve on-going criminal conduct, but officers are permitted to stop and, if appropriate, frisk someone suspected of being involved in an already-committed crime. 4. Officers may use information to stop and frisk from sources of information other than their own personal observations including: a. Training; b. Education; and Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 2 of 10

4 c. Prior experience in similar situations. C. Search Incident to Arrest. 1. A search incident to arrest allows for a complete search of the arrestee and the area of immediate access to the arrestee for the purpose of locating weapons, means of escape, and/or evidence of the crime. It is permitted pursuant to every lawful arrest and must be conducted contemporaneously with the arrest. Probable cause to arrest is required, but the search may be conducted whether or not there is any reason to believe evidence and/or weapons will be found. 2. The search may extend to the person, his or her clothing and carried belongings, and the area to which he or she has immediate access (sometimes called "lunge area"). a. If the subject is seized from a motor vehicle, the search may not include the vehicle if the subject has been removed from the vehicle and secured elsewhere, which will typically be the case. Where that has occurred, there shall be no search incident to arrest of the arrestee s car unless there is reason to believe that evidence of the crime of arrest is present in the passenger compartment, in which case that area may be searched. b. Nothing in this subsection eliminates the possibility in some cases of an inventory search or probable cause Carroll search, where facts and law permit. Digital information stored in cell phones or computers shall not be searched without a warrant, unless there is a valid consent to search or probable cause plus exigent (emergency) circumstances necessitating an immediate warrantless search. 3. In the event that an arrestee wants or needs access to certain areas for his or her convenience and/or comfort, the officer shall inform the arrestee that such access is conditional upon the arrestee's consent to a prior search by the officer of the areas to which access is requested. If the arrestee consents, the appropriate search shall be conducted. If consent is withheld, the arrestee shall not be allowed the requested access. These strict rules are absolutely necessary for officer protection and survival as well as the safety of the arrestee and others. D. Protective Sweeps. 1. Protective sweeps are a form of a search incident to arrest, which allows officers to conduct a quick and limited search of a premise to protect the officers and others on the scene of an arrest from an immediate danger. 2. Scope of a Protective Sweep. A protective sweep is not a full search of a dwelling. The search/sweep is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. Officers may look in closets, under beds, and other places a person could hide in the immediate room where the arrest occurs. a. Incriminating evidence found during a lawful protective sweep may be seized under the plain view doctrine. This discovery of evidence does not, however, justify a subsequent warrantless search of the residence for additional evidence. Officers may use the incriminating evidence to obtain a search warrant for the premises. 3. Timing of the Protective Sweep. The SCOTUS has ruled that a protective sweep may last no longer than it takes to complete the arrest and depart the premises. (Maryland v. Buie). The longer officers take to complete a protective sweep, the more likely a court will find the sweep excessive. For example, a protective sweep was upheld when the special response team opened doors only to areas large enough to harbor a person; there was no evidence that the officers opened drawers or that the sweep of the house was over extensive; and the sweep was short, lasting Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 3 of 10

5 only about a minute. A two-hour protective sweep was held unlawful because it appeared to be a fishing expedition for evidence and because it greatly exceeded the permissible scope. Protective sweeps lasting as little as thirty minutes have been held unlawful. 4. Two types of Protective Sweeps. a. Automatic Protective Sweeps: Officers armed with an arrest warrant (or a search warrant for a person to be arrested) may enter the premises and search for the arrestee in any area that could conceal a person. Once the arrestee is located and the arrest is made, as a precautionary matter and without probable cause or reasonable suspicion, [officers may] look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Buie. Although the limited search is for people, any evidence or contraband found in plain view may be seized. b. Extended Protective Sweeps: In order for officers to sweep beyond the area immediately adjacent to the place of arrest, there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. Buie. Facts establishing a reasonable suspicion that another, dangerous person is present at the scene include, but are not limited to an occupant s demeanor, suggestive utterances or actions by an occupant, noises indicating that additional persons are present at the residence, and cars in the driveway registered to criminal associates of the suspect. 5. Arrests Occurring Outside a Premise. a. There is no bright-line rule that prohibits officers from performing protective sweeps of premises when an arrest occurs outside of that building. Instead, as with an extended protective sweep, the officers must have reasonable suspicion to believe a third party who poses a danger to officers is inside the home. If facts supporting that reasonable suspicion exist, it does not matter whether the arrest occurred inside or outside the residence. E. Inventories. 1. Inventories are non-investigatory in nature, and are conducted by officers for the following reasons: and/or loss; and a. Protection of the owner of the property; b. Protection of the officer(s) and the Department against false claims of theft c. Allows for discovery and proper caretaking of dangerous instrumentalities and of valuable or important property. 2. It is the policy of this Department that all vehicles (and other property) which are impounded be inventoried. 3. Inventories shall extend only to areas and containers within a vehicle or other belonging that can be opened and accessed without breakage or damage. 4. Inventory searches will be properly documented in the incident or supplemental report, and when property is taken into custody by officers, all proper property and evidence procedures shall be followed under the Department s policy. F. Plain View Doctrine. Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 4 of 10

6 1. Seizure of property under plain view doctrine is permitted when an officer who is lawfully present in an area, sees in plain view an item that the officer has probable cause to believe is contraband or other evidence of crime, and that can be seized without any additional privacy intrusion. a. Additional privacy intrusion example: an officer lawfully present on the street may not use plain view doctrine rules to force warrantless entry into a home in which the officer can see, through an un-curtained front window, a marijuana cigarette being smoked. Such an entry requires an additional privacy intrusion. Said another way - the officer is not lawfully present in the place from which the seizure can be accomplished. 2. Limitations to plain view doctrine. a. Artificial devices that aid in or enhance the officer s view cannot be used; however, a flashlight is generally acceptable, provided that the officer has the legal right to be present in that specific location when using it; b. Moving or rearranging items to better identify suspected contraband or items (i.e. - identify a serial number on an item) is not supported by the plain view doctrine. G. Mobile Vehicle Exception/ Carroll Doctrine 1. This search is permitted when an officer has probable cause to believe that evidence of crime is in an apparently operable motor vehicle that is in a public area. No additional or exigent circumstances are required. 2. The search may extend to any area within the vehicle that could reasonably contain the evidence sought. a. Closed containers may be opened and searched if there is probable cause to believe they contain evidence of crime. Breakage is permitted if reasonably necessary to reach criminal evidence. 3. For purposes of this subsection, a "public area" is any area on which public vehicular traffic is normally permitted, (e.g., streets, highways, grocery or mall parking lots, apartment complexes parking lots, etc.). H. Consent Searches. 1. This search is permitted when, during a lawful officer citizen contact, a person who has a reasonable expectation of privacy in an area (e.g., owner, resident, tenant, or vehicle operator) voluntarily grants permission for police to search that area. a. Note: Compliance with an order or demand by police is not a "voluntary" grant of permission. This search does not require probable cause or reasonable suspicion, but is limited to those areas "reasonably" within the consent. (Example: during a lawful stop, an officer asks a vehicle operator for "permission to search this car for drugs." Permission is granted. Unless the driver objects or withdraws consent, the consent search may extend to any containers within the vehicle that can be opened without breakage.) 2. The person granting consent must use, access, and/or control the property. In cases of joint and/or conflicting ownership/relationship, the following general rules apply: a. If two or more persons have joint ownership of property, any may grant consent; however, if one of the parties denies consent officers shall respect the denial of consent by the one and shall not utilize the purported consent of the other; Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 5 of 10

7 b. A landlord, including a hotel or motel manager, cannot consent to a search of a tenant's premises, unless the tenant has been evicted or has abandoned the property; c. A husband or wife, or one member of a cohabiting unmarried couple, may consent to a search of areas in common ownership or use, but if either one is present and denies the search no search can be conducted without a warrant; d. A parent may consent to a search of premises occupied by a dependent child if the parent also has access to the premises; e. Employees cannot give valid consent to a search of employer's premises unless they have been left in custody/control of the premises; f. An employer may generally consent to a search of premises used by employees, except premises used solely by an employee (i.e., a locker). 3. The scope of a consent search is limited to the area for which consent has been given, and within this area officers may search only into areas where the objects sought could reasonably be hidden. 4. Consent may be withdrawn at any time; if it is withdrawn, the officer shall immediately stop the search (unless, by that time, other lawful search justifications are present). 5. Refusal to give consent, in itself, cannot justify further law enforcement action. I. Open Fields or Areas. 1. Certain open fields and/or areas (wooden areas, forests, deserts, swamps/wetlands, etc.), though sometimes on private property, do not necessarily involve a reasonable expectation of privacy. Therefore, an officer may enter these areas without a warrant and seize any evidence in plain view. Curtilage is not included in this exception to the warrant requirement. 2. Curtilage although curtilage is difficult to define, it generally is the area around a home/dwelling that a person would reasonably expect to remain private. A person has a reasonable expectation of privacy in the curtilage of the home. The following four factors should be considered when determining whether the area to be searched is part of the curtilage: a. The area s proximity to the home; b. Whether the area is included within an enclosure surrounding the home; c. Whether the area is being used for the intimate activities of the home; d. The steps taken by the resident to protect the area from observation by passersby. J. Abandoned Property. 1. A search warrant is not required for property that has been abandoned. Two conditions must apply to constitute abandoned property: a. Property was voluntarily abandoned; b. Property was discarded outside the area in which a person would have a reasonable expectation of privacy. K. Exigent Circumstances. Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 6 of 10

8 1. Where there is an emergency/time critical need to act immediately without a warrant to avert unacceptable consequences in a serious and/or dangerous matter, an officer may enter private premises or a vehicle (a REP area) without a warrant to deal with such exigencies. 2. The threshold justification for warrantless action based on exigent circumstances is probable cause. The speculative possibility that an emergency might exist does not create exigent circumstances. 3. Once such exigencies have been extinguished officers shall return immediately to normal rules of search and seizure, including adherence to warrant requirements. 4. There are generally three re-occurring types of exigencies which allow officers to make warrantless entries into REP areas: a. When officers must enter a REP area to protect or preserve life, or prevent death or serious harm to a person(s). b. When officers are in hot pursuit of a suspect to be apprehended and chase that felon/suspect into a REP area. i. To apply the hot pursuit exigency, an officer must begin a lawful custodial action in a public area and the suspect subsequently flees into a REP area to avoid arrest. In such cases, the officer may enter those premises without a warrant to complete the custodial action, but only if the pursuit of the fleeing subject is immediate and continuous c. When officers believe that the time it would take to secure a warrant would result in the destruction of evidence. i. Note: The possible loss of evidence of minor, non-dangerous offenses does not constitute exigent circumstances, nor do public annoyances such as loud music. 5. Crime Scenes. a. There is no crime scene exception to the warrant requirement. Generally, however, under the exigent circumstances described above, officers may initially enter a crime scene without a warrant in order to provide needed emergency assistance, locate and assist victims, apprehend perpetrators and secure important evidence that would likely to be lost to the passage of time. Once those exigencies are eliminated, ordinary warrant requirements apply to further searching, except by valid consent. 4.03C.7 PRIVATE CONDUCT (PRIVATE SEARCH BY A PRIVATE CITIZEN) A. The Fourth Amendment does not regulate private conduct, regardless of whether that conduct is reasonable or unreasonable. Evidence of a crime that is obtained through a private search may be admissible against a defendant, even if the private search was conducted illegally. B. While the Fourth Amendment may not apply to a private search by a private citizen, it does apply when that citizen is acting as an instrument or agent of the government. The issue in such a search necessarily turns on the degree of the officer s participation in the private party s activities. In making this determination, the courts typically focus on three factors: 1. Whether the government knows of or acquiesces in the private actor s conduct; 2. Whether the private party intends to assist law enforcement officers at the time of the search; and Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 7 of 10

9 3. Whether the government affirmatively encourages, initiates, or instigates the private action. 4.03C.8 STRIP AND BODY CAVITY SEARCHES A. The Department recognizes that the use of strip and/or body cavity searches may, under certain conditions, be necessary to protect the safety of officers, civilians and/or other prisoners, and to detect and secure evidence of a crime. Recognizing the intrusiveness of these searches on individual privacy, they shall be conducted with deference for the human dignity of those being searched and in accordance with the procedural guidelines as set forth in this section. B. Strip Searches. 1. Definition: Any search of an individual requiring the removal or rearrangement of some or all clothing to permit the visual inspection of the genitals, buttocks, anus, female breasts or undergarments covering such areas. 2. The decision to strip search must be based on specific factors which give rise to probable cause or the most compelling of exigent circumstances, that the prisoner may be concealing weapons, escape implements, contraband, or evidence. Probable cause may be based upon, but is not limited to, one or more of the following criteria: a. The nature of the offense charged; b. The arrestee s appearance and demeanor; c. The circumstances surrounding the arrest; d. The arrestee s criminal record, particularly past crimes of violence and narcotics offenses; e. The discovery of evidence in plain view or in the course of a search prior to an arrest; and f. Detection of suspicious objects beneath the suspect s clothing during a search incident to arrest. 3. Field strip searches of prisoners shall be conducted only in the rarest of circumstances under exigent circumstances where the life of officers or others may be at risk. Explicit approval of a supervisory officer will be obtained prior to such a search. 4. Where articulable, reasonable suspicion exists to conduct a strip search, the arresting officer shall make a request for such action to the detention supervisor or other designated authority. 5. When authorized, strip searches may be conducted only: a. On lawfully arrested persons; b. By the least number of personnel necessary and by the same sex if readily available; and c. Under conditions that provide privacy from all but those authorized to conduct the search. 6. The prisoner will not be required to remain unclothed any longer than is absolutely necessary. Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 8 of 10

10 7. Non-sworn personnel will not be used to conduct, assist or witness a strip search. 8. Following a strip search, the officer performing the search shall submit a written report that details; at a minimum, the following: search; a. The facts and circumstances establishing the reasonable suspicion for the b. Date and place of the search; c. Identity of the officer conducting the search; d. The names of the approving supervisor and the witness officer; e. Identity of the individual searched; f. A detailed description of the nature and extent of the search; and g. Any weapons, evidence, or contraband found during the search. C. Body Cavity Searches. 1. Definition: Any search involving not only visual inspection of skin surfaces, but also the internal physical examination of body cavities and, in some instances, organs such as the stomach cavity. 2. The mouth is the only body cavity that may be searched without a warrant. If an officer has probable cause to believe that a prisoner is concealing something in his or her mouth, the officer may use reasonable force to prevent the swallowing of the object and may remove the object. 3. Should examination of a prisoner during a search or other information lead an officer to believe that the prisoner is concealing a weapon, evidence or contraband within a body cavity, the following procedures shall be followed: a. The officer shall inform the prisoner of the intent to conduct a body-cavity search, thus giving the prisoner the opportunity to voluntarily surrender the suspected contraband. b. The officer shall consult with the shift supervisor and the on call District Attorney to determine whether probable cause exists to seek a search warrant for a body cavity search. The decision to seek a search warrant shall recognize that a body cavity search is highly invasive of personal privacy and is reasonable only where the suspected offense is of a serious nature or poses a threat to the safety of officers or others. c. If probable cause exists for a body cavity search, an affidavit for a search warrant shall be prepared that clearly defines the nature of the alleged offense, the basis for the officer s probable cause and specific factors giving rise to the belief that the item(s) sought are concealed in the prisoner's body. d. On the basis of a search warrant, a body cavity search shall be performed by qualified medical personnel in surroundings suitable to their needs. e. Body cavity searches shall be performed with due recognition of privacy and hygienic concerns. 4. Upon completion of a body cavity search, any items recovered will be documented on the search warrant return and in the officer's report. Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 9 of 10

11 5. The officer s report should include the fact that a body cavity search was conducted and: a. The facts and circumstances establishing the probable cause for the search; b. Date and location where the search took place; c. Identity of the individual searched; d. The name of the approving supervisor; e. Name of the judge authorizing the warrant; f. Identity of the medical practitioner conducting the search; g. The name of the witness officer; h. A description of the nature and extent of the search; and i. Results of the search including any weapons, evidence, or contraband found. 6. The case file should include a copy of the report of the medical practitioner performing the search. Section: 4.03C CPD Policy and Procedure Manual [v2017] Page 10 of 10