8.00.010 SEARCHES (CALEA 1.2.4)
Absent a warrant, all searches are unreasonable unless shown to be within one of the following exceptions to the warrant requirement:
The basic rule for this exception is set forth in the Arrest with/without Warrants policy.
A consensual search is valid if all persons present with authority over the premises consent to it. A person sharing control over any area may give permission to search the area if he or she is the only person of authority present. If other persons with control over the premises are present at the time the police are about to conduct the search, their consent is required. When one party consents to a warrantless search but another who has equal use and control of the premises objects, the consent is invalid.
v Plain View
A plain view exception to the warrant requirement applies when fruits of a crime come into view of the officers lawfully searching in connection with another crime or for another purpose, or who otherwise has a right to be where they are.
The fruits of a crime located in plain view may be retained and used in prosecution of the crime to which they relate if the officer is already lawfully in the constitutionally protected area.
Police must have specific and articulable facts along with reasonable inferences to believe an exigency exists, such as destruction or removal of evidence or perhaps preparation to violently resist, normally based upon:
1. Prior information reasonably leading to the belief that a suspect has resolved to act in a manner which would create the need to enter without waiting, or
2. Confrontation with some sort of sound or activity alerting police to the possible existence of an exigency justifying immediate entry
v Warrantless Search of an Individual
When circumstances require that a physical search of an individual be conducted, a thorough “hands on” search for weapons, evidence, contraband, etc., will be performed.
Verbal requests of an individual to “empty their pockets” or “visual searches” will not suffice as a search in this context.
For purposes of officer and prisoner safety, evidence integrity, and accurate reporting requirements, it shall be understood that when a physical search of an individual has taken place, and is so communicated verbally or in written form, a physical search will have been performed.
Pat-down/Frisk for Weapons
The narrow scope of the Terry exception permits the officer to briefly detain, for limited questioning, a person whom they reasonably suspect of criminal activity and to frisk the person for weapons if they have reasonable grounds to believe the person to be armed and presently dangerous.
There is no automatic right to do a pat-down/frisk; there must be a reasonable suspicion of weapons or danger.
The suspicion of dangerousness must focus particularly on the individual to be searched, not simply on the area in which the individual is found.
A pat-down protective search may be made before placing or transporting any person in a patrol vehicle. An arrest is not necessary.
A protective sweep during an in-home arrest is allowed when the searching officer possesses a reasonable belief based on specific and articulable facts which, taken together with 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 sweep.
A protective sweep extends only to a cursory inspection of those spaces where a person may be found, lasting no longer than is necessary to dispel the reasonable suspicion of danger, and in any event no longer than it takes to complete the arrest and depart the premises.
For more information refer to the policies on Warrantless Residential Entry.