Policy Text
Policy
318Fremont Police Department
Search and Seizure
318.1 PURPOSE AND SCOPE
Both the federal and state Constitutions provide every individual with the right to be free from
unreasonable searches and seizures. This policy provides general guidelines for Fremont Police
Department personnel to consider when dealing with search and seizure issues.
318.1.1 SEARCH WARRANTS
The following procedures outline the way in which Search Warrants issued by Superior Court
Judges presiding in the Superior Court, County of Alameda, are handled by their respective
Criminal Clerk offices:
(a)The officer prepares the warrant and the affidavit in support of the warrant and submits
both to the judge for signature.
(b)After signing, the judge gives the original signed warrant to the officer, retaining a copy.
A warrant issued via fax is labeled "Duplicate Original" by the officer upon receipt at
the judge's direction.
(c)The judge retains the original signed affidavit (or copy received via fax), along with a
copy of the warrant.
(d)The judge forwards the affidavit and copy of the warrant to the Criminal Division Chief.
The affidavit is assigned a "register number" and logged in the Unified Search Warrant
Register.
(e)The officer serves the warrant, retaining the original warrant signed by the judge.
(f)Within three days of service, the officer returns the original warrant (or duplicate
original) along with the original inventory to the Criminal Division Clerk's office. NOTE:
The officer must sign the inventory under penalty of perjury. The magistrate need not
administer an oath.
(g)If the warrant is served and nothing is taken in the search, the officer returns the
original warrant with an inventory form indicating "nothing taken."
(h)If the warrant is not served within ten days, the officer must return the original warrant to
the Criminal Division Clerk's Office with an inventory form stating, "warrant not served."
(i)The warrant and inventory are matched with the original affidavit, assigned the
corresponding register number, and maintained in the Criminal Division Clerk's Office.
(j)All warrants bearing the judge's original signature, whether served or unserved, must
be returned to the Criminal Division Clerk's Office along with an inventory form signed
by the officer. If the officer is given the original affidavit from the judge to deliver to the
Criminal Division Clerk's Office, it must be delivered immediately for filing.
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Search and Seizure
(k)Photographs of the area to be searched shall be taken prior to the search and after
the search. A supervisor may give permission not to take photographs when he or
she feels the Search Warrant is of such a nature as not to need photographs. Any
photographs taken are to be uploaded into the digital evidence storage system and
stored.
All warrants bearing the judge's original signature, whether served or unserved, must be returned
to the Criminal Division Clerk's Office along with an inventory form signed by the officer. If the
officer is given the original affidavit from the judge to deliver to the Criminal Division Clerk's Office,
it must be delivered immediately for filing.
Photographs of the area to be searched shall be taken prior to the search and after the search. A
supervisor may give permission not to take photographs when he or she feels the Search Warrant
is of such a nature as not to need photographs. Any photographs taken are to be uploaded into
the digital evidence storage system and stored.
318.2 POLICY
It is the policy of the Fremont Police Department to respect the fundamental privacy rights
of individuals. Members of this department will conduct searches in strict observance of the
constitutional rights of persons being searched. All seizures by this department will comply with
relevant federal and state law governing the seizure of persons and property.
The Department will provide relevant and current training to officers as guidance for the application
of current law, local community standards and prosecutorial considerations regarding specific
search and seizure situations, as appropriate.
318.3 SEARCHES
The U.S. Constitution generally provides that a valid warrant is required in order for a search to
be valid. There are, however, several exceptions that permit a warrantless search.
Examples of law enforcement activities that are exceptions to the general warrant requirement
include, but are not limited to, searches pursuant to the following:
•Valid consent
•Incident to a lawful arrest
•Legitimate community caretaking interests
•Vehicle searches under certain circumstances
•Exigent circumstances
Certain other activities are recognized by federal and state courts and by certain statutes as
legitimate law enforcement activities that also do not require a warrant. Such activities may include
seizure and examination of abandoned property, and observations of activities and property
located on open public areas.
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Because case law regarding search and seizure is constantly changing and subject to
interpretation by the courts, each member of this department is expected to act in each situation
according to current training and his/her familiarity with clearly established rights as determined
by case law.
Whenever practicable, officers are encouraged to contact a supervisor to resolve questions
regarding search and seizure issues prior to electing a course of action.
318.4 SEARCH PROTOCOL
Although conditions will vary and officer safety and other exigencies must be considered in every
search situation, the following guidelines should be followed whenever circumstances permit:
(a)Members of this department will strive to conduct searches