209 SEARCH AND SEIZURE

POLICY 209SEARCH AND SEIZURE ESTABLISHED 5/2019 RELATED POLICIES: Reviewed by Chief David Magnusson %/2019 A.PURPOSE The purpose of this policy is to clearly define to the Members of the Department Search and Seizure related information as it applied to the United States Constitution Fourth Amendment. B.POLICY It is the policy of the Village of El Portal Police Department that every member of the department be well versed in all the most up-to-date laws, rulings, and applicable police practices as they apply to Search and Seizure issue. C.DEFINITIONS AND PROCEDURES 1.PLAIN VIEW : If an officer is in a place that he has a legal right to be and he observes contraband, instrumentalities, fruits or evidence of a crime, he may seize those items as evidence. The officer’s discovery of the item must be inadvertent. Even if the officer had some knowledge of the item, discovery is still inadvertent as long as he did not have probable cause to believe the item was there prior to his observation of the item. The item seized must be immediately apparent as contraband or evidence of a crime. If the item must be moved or examined more closely, the plain view doctrine does not apply. Except in cases involving exigent circumstances or motor vehicles (conveyances), a plain view observation of contraband or evidence does not justify a warrantless entry into a constitutionally protected area in order to seize the item. 2. SEARCHES INCIDENT TO ARREST: Search incident to a legal arrest is allowable as a custodial arrest based upon probable cause is a reasonable intrusion under the Fourth Amendment. a. A search subsequent to a full custody arrest is permitted when: (1). To collect and preserve evidence (2)The safety of the arresting officer (3)To prevent escape (4)To prevent weapons and contraband from entering a custodial facility (5)To prevent the destruction of evidence b. The search must be conducted in a close time proximity to the time of arrest. Brief reasonable delays such as transporting the subject to jail are permissible. c. The scope of the search will be limited to the person, the person’s clothing, the area immediately within reach of the person, and articles within the person’s immediate reach. This would include a purse, a wallet, etc. The area of the subject’s immediate control may be searched after the person has been arrested and removed from that area if the search is conducted soon after the arrest. It is irrelevant that the arrestee can no longer physically reach that area when the search is conducted, if it was within his immediate control when he was being arrested. Note: Strip and Body Cavity Searches of Prisoners Strip searches and/or body cavity searches are authorized only in those instances in which there are sufficient reason to believe that such search is necessary to recover evidence or contraband. Strip searches will be conducted only by officers of the same sex as the prisoner; officers of the opposite sex will not be immediately present at the time such procedures are conducted. Agency personnel will not conduct body cavity searches. Body cavity searches will be conducted by approved medical or detention personnel. A search warrant application will be prepared and taken to the appropriate magistrate/judge for review and approval. The only way a cavity search will be performed by a medical doctor, is via search warrant. A cavity search will not be requested of a doctor or any other medical professional without a signed search warrant ordering such search and seizure. 3. CONSENT SEARCHES a. Consent searches should be used with the knowledge that they are often subject to question after the fact. Officers should always attempt to obtain consent in writing. (Use department Consent to Search form.) The preceding is helpful if the consent is attacked or denied in court. b. Consent must be voluntary and by a person who is in apparent control of the property. Officers will also advise the subject that he has the right to withhold his consent and deny the search. It is not coercion to advise the person that the officers will seek a search warrant if consent is not given if officers have lawful authority to seek the warrant. c. Withdrawal of the consent may occur at any time. At the moment the subject withdraws his consent, the officers will retain any sizable items they have discovered and stop the consent search. A search warrant may be required to continue the search and may include information on items already seized during the consent search. d. Consent searches apply to an area that can include a home, property, person or vehicle. e.If the consent cannot be obtained in writing, a verbal consent may suffice to fulfill legal requirements. The officer obtaining a verbal consent should attempt to have another officer witness the consent. 4. MOTOR VEHICLE SEARCHES: In general, officers do not need a warrant to stop and search a vehicle capable of being moved when you have probable cause to believe that evidence of a crime is in the vehicle. The exception is allowed because: a. The exigent circumstances created by the mobility of the vehicle b. A diminished expectation of privacy related to a vehicle When probable cause does exist, the following circumstances make a warrant unnecessary: c. The vehicle is moving d. The officer has reason to believe that persons known or unknown may move the vehicle e. The possibility exists that an alerted criminal will use the vehicle to flee . f. The vehicle has recently been moved g.