OFFICE OF THE SHERIFF ST. MARY'S COUNTY, MD

EFFECTIVE DATE: September 30, 2016 SUBJECT: AFFECTS: OFFICE OF THE SHERIFF ST. MARY'S COUNTY, MD SEARCH AND SEIZURE All Employees Policy No. 4.02 Section Code: Rescinds Amends: 2/22/2016 B 4.02 SEARCH AND SEIZURE 4.02.001 Policy Under the 4 th Amendment to the United States Constitution, searches and seizures conducted without benefit of a court issued search and seizure warrant are presumed unreasonable. As a result of specific case law exemptions issued from decisions of various courts, particularly the Supreme Court, a deputy sheriff may conduct valid searches without a warrant under certain very specific and narrow circumstances. 4.02.002 Guiding Principles A. The Office of the Sheriff will not use race or ethnicity as a factor for the development of policies for stopping, detaining, or searching persons. B. Deputy Sheriffs will not participate in the use of any bias based profile as a cause for stopping, detaining, or searching persons. C. Bias based profiles will not be utilized by deputy sheriffs and officers operating in concert with or under the direction of the Sheriff s Office as a consideration in determining whether to stop, detain, or search persons. D. Nothing in this policy statement precludes deputy sheriffs from relying upon race as part of a description where a specific suspect is sought. E. All deputy sheriffs will receive initial and periodic training in bias based profiling issues which promote and encourage impartial policing and prevent the creation, adoption or use of inappropriate 1

stereotypes. Applicable training may include, but is not limited to, officer safety, courtesy, cultural diversity, search and seizure issues and legal aspects, asset seizure and forfeiture, interview techniques, interpersonal communication skills, constitutional and case law, field contacts and motor vehicle stops. F. Biased based profiling in traffic contacts, field contacts, asset seizures, and all law enforcement actions are prohibited and may lead to disciplinary action. 4.02.003 Stop And Frisk A. The Supreme Court rules in Terry v. Ohio that under certain circumstances a person could be stopped for the purpose of investigating possible criminal behavior even though there was no probable cause for arrest. B. The deputy sheriff must have reasonable, articulable suspicion which will be detailed in the Offense/Incident Report (SMCSO Form #56) or Field Information Report that the person: 1. has been engaged in criminal activity; 2. is currently engaged in criminal activity; or 3. is about to engage in criminal activity. C. If the deputy sheriff has a reasonable belief that the person stopped is armed and dangerous, the deputy sheriff may conduct a limited search for weapons. The deputy sheriff s belief that the person is armed must have been drawn from a particular set of facts. This search, or frisk, is limited to outer garments and is for weapons only. D. In Michigan v. Long, the Supreme Court extended the limited pat down for weapons to include the passenger compartment of a vehicle and any container in the passenger compartment. The requirement remains that the deputy sheriff must have a reasonable belief, based on specific and articulable facts that a weapon may be found. 1. The protective search is allowed only after the threat of danger becomes a distinct possibility. 2. The search is limited to an area, which was within the immediate control of a subject, i.e. passenger compartment 2

of a vehicle and containers in the compartment, to include purses or bags. 3. The area searched could conceivably contain a weapon. E. When a deputy sheriff makes a pat down for weapons, either of a person, vehicle, or both, the deputy sheriff will include within the Offense/Incident Report the fact that a pat down was conducted. The report will include: 1. The reason(s) why contact was initiated with the person; 2. actions or statements made by the person or observations of the deputy sheriff which could give rise to a suspicion that the person was armed, to include description of their clothing and; 3. results of the pat down, weapons found and the type. F. Criminal Law Title 4, subsection 206, of the Annotated Code of Maryland requires the completion of the Firearms Report (MSP Form #97) when conducting a limited search for a firearm ( stop and frisk ). 1. The MSP-97 will be utilized when a stop and frisk is performed, regardless of the outcome of the search. The stop and frisk may extend beyond a suspect s clothing to a bag or container within the reach of the suspect. 2. When the MSP-97 is used in the stop and frisk instance, it will be completed by the deputy sheriff, signed by a supervisor, and submitted for processing with the shift paperwork. The deputy sheriff will state in the Offense/ Incident Report that a stop and frisk was conducted and an MSP-97 was completed and submitted to MSP. The same procedure is required when submitting the MSP-97 for firearms located incidental to an arrest or a trace report. Deputy Sheriffs will make a reasonable effort to obtain driver s license and social security numbers before forwarding the form for processing. 3. When a handgun is recovered, the Maryland State Police Handgun Permit Section will file the MSP-97 and trace the weapon recovered to its last known owner. The section will also verify and/all applicable handgun permits. Once the search is completed, they will report their findings to the originating deputy sheriff. 3

4.02.004 Search Incident to Arrest A. When a deputy sheriff makes a lawful custodial arrest, the deputy sheriff will make a complete search of the person and the area within the immediate control of the person arrested including any containers in the possession of the person at the time of arrest. The search must be contemporaneous with the arrest in time and place. B. The deputy sheriff does not have to show probable cause that the arrested person is in possession of contraband, evidence or fruits of a crime before making the search. The right to search derives directly from making a custodial arrest. C. A non-custodial arrest, such as that made with a misdemeanor summons, does not confer the right to make a search incident to arrest. D. Areas and things to be searched include: 1. The person arrested, including the contents of all pockets and may extend to the removal of items of clothing such as jackets, sweaters, shirts, belts and footwear. 2. All containers in the possession of the person at the time of arrest, including wallets, purses, items of luggage (locked or unlocked) and boxes (wrapped or open). These containers must be in actual possession at the time of arrest. If a person has secured an item of luggage in a rental locker just prior to their arrest, a deputy sheriff may not recover the luggage and search it within the parameters of a search incident to arrest. 3. The area within the immediate control of the person arrested. This area is defined to mean the area from which the person might gain possession of a weapon or destructible evidence, an area within the leaning distance or arm span, of the person arrested (Chimel v. California). 4. If the subject of a lawful custodial arrest was an occupant of a motor vehicle at the time of arrest, the passenger compartment of the vehicle may be searched incident to lawful custodial arrest, including containers located within the passenger compartment; only if the arrestee is within reaching distance of the passenger compartment at the 4

time of the search, or it is reasonable to believe the vehicle contains evidence of the offense. (Arizona v. Gant) E. When a deputy sheriff makes a custodial arrest, the Offense/Incident Report will indicate that a search incident to arrest was made. 4.02.005 Crime Scenes A. A search warrant is not required in every incident where a crime has occurred and the crime scene has been secured for the purpose of processing the scene for evidence. B. Once processing of the crime scene is completed and control of the scene has been relinquished, the location is then subject to the protections granted by the 4 th Amendment against unreasonable searches and seizures. 4.02.006 Vehicle Exception To Search Warrant Requirements A. In regards to mobile vehicles, in particular motor vehicles, the U.S. Supreme Court has found the mobility of a vehicle is, in and of itself, an exigent circumstance dictating immediate law enforcement action. A deputy sheriff must have probable cause that item(s) subject to seizure are located within the vehicle to be searched. B. Where a deputy sheriff has probable cause, he/she may stop and search a vehicle (Carroll v. United States). The deputy sheriff may also search the trunk and containers located in the vehicle provided the item for which the vehicle is being searched could reasonably be expected to be found in the container (i.e. deputy sheriffs have probable cause to believe an automobile contains a stolen rifle. They may stop the automobile and search it for the rifle, but could not search the glove box of the automobile because it is unreasonable to expect to find a rifle in such a size container (United States v. Ross)). C. In those circumstances where a vehicle is not readily mobile, a deputy sheriff may not legally conduct a warrantless search. An automobile parked in the driveway of a private home where a deputy sheriff has already arrested the owner/operator of the automobile may not be searched (Coolidge v. New Hampshire). Once a vehicle has been taken into custody or impounded then it is no longer mobile and a search warrant must be obtained for any evidentiary search (State v. Miller, Conn. Appellate Court, 1992). 5

A deputy sheriff must show the exigent circumstances of mobility or public access to the vehicle existed. D. Where deputy sheriffs have probable cause to believe a container inside a vehicle contains contraband, no search warrant is needed and deputy sheriffs can conduct a warrantless search of the container (California v. Acevedo). E. When deputy sheriffs stop a vehicle and conducts a warrantless search of the vehicle and/or containers within the vehicle, the Offense/Incident Report will show the following: 4.02.007 Exigent Circumstances 1. facts and circumstances which show probable cause to believe those items subject to seizure could be expected to be found in the vehicle; 2. exigent circumstances of mobility existed; 3. if containers were searched, the items being searched for could have been found in the container(s) examined; 4. any items seized as a result of the search; and 5. the vehicle was or was not seized. The seizure of the vehicle itself is normally justifiable only when it can be shown that it was instrumental in the commission of a criminal offense. Such instrumentality may be shown if the vehicle was used to reach and escape the scene of a crime or used to transport the fruits of a crime or used in the transport of contraband. A. Emergencies or exigent circumstances will certainly arise which make impractical the obtaining of a search warrant. Exigent circumstances will allow a deputy sheriff to make entry and conduct a search without a warrant. B. A warrantless search conducted due to exigent circumstances is valid only as long as the exigent circumstances exist. When the emergency is ended, so must all searches conducted by the deputy sheriff. Discoveries made during a warrantless search under exigent circumstances may be used to establish probable cause for a search warrant. C. The Supreme Court has identified certain examples of exigent circumstances. They are: 6

1. Hot Pursuit of an Armed Felon (Warden v. Hayden). 2. Entry into a Burning Building (Michigan v. Tyler). 3. Entry to Prevent the Imminent Destruction of Evidence (Ker v. Calif.). 4. Entry to Prevent Flight of a Suspect (Johnson v. United States). 5. Entry to Investigate an Emergency (Mincey v. Arizona). NOTE: These examples should not be construed to mean there are no other types of exigent circumstances. D. A deputy sheriff who makes a claim of exigent circumstances to justify a search must substantiate the claim of exigent circumstances in his/her report. 4.02.008 Plain View Doctrine A. When a deputy sheriff sees items such as contraband, those items may be seized, provided the deputy sheriff has a legal right to be in the position to have that view. This is called the Plain View doctrine. The key elements are: 1. The deputy sheriff must be present legally. 2. The discovery of the item seized must be inadvertent. 3. The requirement of probable cause to believe the item spotted in plain view is evidence of a crime. B. A deputy sheriff will not use an observation as a means to justify making a warrantless intrusion to seize an item. The observation may be used to establish probable cause for a search warrant. For example, a deputy sheriff sees what is recognized to be a marijuana plant in an apartment window. The deputy sheriff is standing on the public sidewalk. The deputy sheriff may not legally enter the apartment and seize the plant. The deputy sheriff may use his/her observation to establish probable cause for a search and seizure warrant. C. The Supreme Court has enumerated four circumstances, which are considered as being valid intrusions, allowing seizures under the plain view doctrine: 7

1. pursuant to a search warrant to search for other items; 2. pursuant to a valid warrantless search for other items; 3. during a search incident to an arrest made inside a protected area, i.e. an arrest made inside a person s home; 4. following any other lawful intrusion. NOTE: There is a very strong correlation between the plain view doctrine and searches made under exigent circumstances. The exigent circumstances justify a warrantless intrusion; the plain view doctrine justified the seizure. D. Warrantless seizures made under the plain view doctrine, like all warrantless searches and seizures, will be carefully documented in all reports. E. Abandoned Property A deputy sheriff may, without a warrant, seize and search property that he/she has reason to believe has been abandoned. F. Open Fields 1. A deputy sheriff may enter and search any unoccupied or undeveloped area lying outside the curtilage of a dwelling. 2. Curtilage is the area around the home to which the home life activity extends. G. Public Places 4.02.009 Consent Search There is no requirement that a warrant be obtained before seizing things brought into public places open to plain view. However, a deputy sheriff must have reason to be at the place where the evidence is found. A. To obtain consent to conducted a warrantless search from a person, the deputy sheriff must show that such consent was given voluntarily and no under duress or intimidation. B. The deputy sheriff does not have to show probable cause if it can be shown that the search and seizure was done with consent. Nor 8

do exigent circumstances have to be shown to justify the intrusion. C. Ideally, all consent searches should be obtained in writing. D. It is necessary for the deputy sheriff to show that the person who gives consent had the authority to do so. The deputy sheriff must show that the person who gave consent had control over the area to be searched. Examples include: 1. A parent can give consent to a search of unsecured premises occupied by a dependent child. 2. A host can give consent to a search of unsecured premises occupied by a guest. But if a particular area of the premises to be searched has been set aside for a long-term guest s exclusive use, or if the search is of an object which is exclusively the guest s, the consent of the host may not authorize a search. 3. A person with custody of personal property belonging to another may consent to its search only if he/she has been given full control over the property, or if the property has been left on the premises without his/her authorization. Consent by a person having only conditional custody, such as that given for storage or shipment, is not valid. 4. A landlord cannot consent to a search of a tenant s premises, unless the tenant has abandoned the premises or has been evicted. 5. An employee cannot consent to the search of an employer s premises, unless he/she has been delegated general authority to act as the agency of the employer. An employer may generally consent to a search of premises used by an employee in his/her work, unless it is a particular area set aside for the employee s exclusive use. E. The person giving the consent to search can place any limitation or condition on the consent search. The person also has the right to revoke consent at any time. Therefore, the person granting consent shall remain in the presence of a law enforcement officer and in view of the object or place being searched. However, once evidence of a crime is located, as the result of a lawfully obtained consent search, the person who initially granted consent is no longer permitted to revoke consent and the search may continue based on probable cause. 9

4.02.010 Strip Search Definition: A strip search of an individual is a search requiring the removal or rearrangement of some or all clothing to permit the visual inspection of the genitals, buttocks, anus, female breasts or undergarments of an arrestee. A. The decision to strip search must be based on specific factors which give rise to a reasonable suspicion that the prisoner may be concealing weapons, escape implements, contraband, or evidence. B. Strip searches will be conducted only with supervisory approval. C. The search will be conducted by a deputy sheriff of the same sex. D. The search will be carried out in an area unobservable by persons not involved in the search. E. The prisoner will not be required to remain unclothed any longer than necessary. F. If a deputy sheriff has probable cause to believe that a prisoner is concealing something in their mouth, the deputy sheriff may use reasonable force to prevent the swallowing of the object and may remove the object. G. Under no circumstances will civilian employees of the St. Mary s County Sheriff s Office be used to conduct or assist with a strip search. H. The deputy sheriff involved in a strip search will note the following in the Offense/Incident Report or on a Supplement Report: 4.02.011 Body Cavity Search 1. the fact a strip search was conducted; and 2. the name of the approving supervisor. Definition: This type of search involves a physical intrusion into individual s body cavities. A. Applications for search warrants for body cavity searches will be made only with supervisory approval. B. Body cavity searches will be conducted by competent medical personnel when possible and under sanitary conditions. 10

C. Force may be used to the extent necessary to affect a body cavity search. D. The deputy sheriff involved in a body cavity search will note the following in the Offense/Incident Report or on a Supplement Report: 4.02.012 Search Warrants 1. the fact a body cavity search was conducted; and 2. the names of the approving supervisor, the judge signing the search warrant, and the medical personnel conducting the search. A. Deputy Sheriffs who have probable cause for a search warrant will notify the appropriate investigative division (i.e. Vice/Narcotics or CID) supervisor for assistance in the preparation of the affidavit and warrant. B. No deputy sheriff will reveal information to anyone concerning the issuance of a search warrant except those who need to know. 4.02.013 Seizure And Forfeiture It is the policy of the Sheriff s Office to seize vehicles, money of more than $300, and weapons and other personal property used in violation of the provisions of the Controlled Dangerous Substance Title as set forth in the Criminal Law Article of the Annotated Code of Maryland (CR 5-101) and violations of the Gaming Provisions as set forth in the Criminal Law Article of the Annotated Code of Maryland (CR 12-102). Once assets are seized, and it is determined by appropriate investigation that they are subject to forfeiture pursuant to Title 12 and Title 13 of the Criminal Procedures Article of the Annotated Code of Maryland, they shall then fall under the prosecutorial jurisdiction of the Office of the State s Attorney. The Sheriff s Office role is to facilitate the forfeiture requests and serve as custodian of the assets until they are either transferred to the County Finance Office, put into Sheriff s Office use, disposed of by a court pursuant to applicable laws, or are returned to their owner by appropriate authority. The purpose of this chapter is for the permanent seizure and does not prohibit a deputy sheriff from collecting the listed items for evidentiary purposes. 11

A. Motor Vehicles 1. Criminal Procedure Title 12, subsection 204, of the Annotated Code of Maryland establishes the standards for seizure and forfeiture of motor vehicles. 2. Circumstances to be considered in deciding whether seizure and forfeiture are justified include, but are limited to: a. the possession of controlled dangerous substances (CDS); the mere possession of CDS transported in a vehicle for personal use does NOT justify the seizing of the vehicle. b. an extensive criminal record of the violator; c. a previous conviction of the violator for a CDS crime; d. when the vehicle has been previously seized for violations of the Controlled Dangerous Substance law; e. evidence the motor vehicle was acquired by use of proceeds from a transaction involving CDS; f. circumstances of the arrest; and g. the way in which the motor vehicle was used or intended to be used, e.g. to transport or facilitate the transport of CDS intended for distribution or conspiring to distribute. 3. In accordance with Title 12 of the Criminal Procedures Article, seized vehicles may be recommended to the forfeiting authority for forfeiture only after the Sheriff has personally reviewed the facts and circumstances of the seizure, and has personally determined that forfeiture is warranted. B. Money and Weapons 1. Criminal Procedure Title 12, subsection 102, of the Annotated Code of Maryland establishes standards for seizure of money and weapons. 12

2. The money was used or intended for use in connection with the illegal manufacture, distribution, dispensing, or possession of CDS; or 3. Money or weapons found in close proximity to CDS, controlled paraphernalia, or forfeitable records of the importation, manufacture, or distribution of CDS, are contraband and presumed to be forfeitable. 4. Under Criminal Procedures 13-10, money seized in an arrest for gambling violations is prima facie contraband. C. CDS, controlled paraphernalia, and other property subject to forfeiture are provided in Criminal Procedure Title 12, subsection 102. D. Deputy Sheriffs with questions regarding the seizure of any item will notify their supervisor who makes a determination. If the supervisor is unsure if property should be seized, they will contact the On-Call Narcotics supervisor by utilizing the Chain of Command. E. The facts and circumstances of each individual case determine whether the agency will continue with seizure and forfeiture proceedings. F. Refer to the Asset Forfeiture section of the Vice/Narcotics Division S.O.P. for detailed procedures. 13