APPENDIX X - Jamesville-Dewitt Central School District

Town of DeWitt PD Searches Policy

PURPOSE: The purpose of this policy is to set forth procedures for conducting searches.
POLICY: It is the policy of the Town of Dewitt Police Department to conduct searches within the parameters allowable by law and the Constitution of the United States.
DEFINITIONS
1. Reasonable Suspicion– The facts and circumstances that are in their totality more than a hunch but less than probable cause that is required to support an arrest or a search. Those facts that give an officer reason to believe that a particular person has committed, is committing or is about to commit a crime.
2. Reasonable Cause to Believe: Also known as Probable Cause. When it is believed that a person has committed an offense when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgement and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in the New York Criminal Procedure Law, such apparently reliable evidence may include or consist of hearsay.
3. Stop and Frisk Search: The cursory pat down of a person’s exterior clothing subsequent to stopping them for temporary questioning when the officer has reason to suspect that such person possesses a weapon.
4. Strip Search: Strip search is defined as, having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments of such person.
5. Body Cavity Search: Any search involving, not only visual inspections of skin surfaces, but the internal physical examination of body cavities and in some instances, organs such as the stomach cavity.
6. Custodial Search: A search for weapons, evidence, instrumentality and/or contraband conducted without a warrant in the field incident to a lawful arrest. A custodial search involves a full search of the arrested persons clothing and/or things in his actual possession or physical control.
PROCEDURE:
1. Determining when a search is lawful and conducting the appropriate type of search for a given situation can help secure a successful prosecution of the case, avoid the suppression of evidence during court proceedings and protect the officer from civil and criminal liability.
2. The types of searches utilized by police officers are:
  1. Warrantless searches which include:
    1. Stop and Frisk.
    2. Incident to arrest.
    3. Exigent circumstances.
    4. Consent
    5. Strip searches.
    6. Body cavity searches.
    7. Search warrants.
    8. Administrative
    9. Environmental conservation.
3. Stop Based on Reasonable Suspicion
  1. The authority to stop and frisk an individual is based on the 1968 U.S. Supreme Court decision in Terry vs. Ohio. The court ruled that an officer may conduct a cursory pat down search (frisk) for the purpose of discovering weapons if he/she has reason to suspect that the subject is armed.
  2. An officer may stop a person or a vehicle in a public place (temporarily detain) and request their name, address and explanation for their conduct. After identifying him/her self as a police officer, if he/she has reasonable suspicion that the person has committed, is committing, is about to commit a crime or suspected of possessing a weapon, may conduct a pat down search.
    1. If the person does not comply with an order to stop, the officer should only use the level of force necessary to stop and temporarily detain such person.
    2. The length of time that the person is temporarily detained for questioning must be reasonable.
  3. Reasonable suspicion may be based on but not limited to:
    1. Facts that the officer knows about a person’s past criminal activity (past and present) and the sources of those facts in conjunction with their current behavior.
    2. The officer’s training and/or experience.
    3. The officer’s ability to articulate specific facts about the person that would support his/her reasonable suspicion.
  4. Reasonable suspicion may not be based on a hunch (even if made in good faith), suspicious circumstances or unusual activity, even when all of them are taken as a whole.
  5. Factors that may be considered when determining if a frisk will be conducted include but may not be limited to:
    1. Officer’s prior knowledge of the person’s criminal record and reputation for carrying weapons.
    2. The nature of the suspected crime and whether it involved (or usually involves) the use of weapons or violence.
    3. The presence or absence of bulges in the clothing that may be indicative of a concealed weapon.
    4. The presence or absence of additional persons who are being stopped at the same time.
    5. The time of day or night and how well the officer can observe the whole person(s) that was stopped.
  6. When performing a frisk:
    1. Maintain control over the person.
    2. Start at the area of the person’s clothing most likely to contain a weapon.
    3. Conduct it in a systematic manner ensuring that no part of the person is missed.
    4. Refrain from reaching inside clothing unless it is too bulky and does not allow for a thorough assessment. In these instances, the officer can open the outer clothing to conduct a more accurate frisk.
    5. If an officer feels something inside a pocket which he/she reasonably believes to be a weapon or dangerous instrument, they may reach inside the pocket to retrieve such item.
    6. If the person is carrying anything which is easily accessible to him/her and it is capable of concealing a weapon or dangerous instrument, the officer may search whatever is in the person’s possession, by feeling the outside of the item.
      1. If a frisk is conducted on the driver or occupant of a vehicle, before allowing them to re-enter the vehicle, the officer may conduct a search of the grab able area within the passenger’s compartment for weapons.
  7. Officers must remember that a frisk does not authorize a full search of a person for evidence or contraband (ie. searching within pockets).
  8. It is possible that other property may be found during the course of a frisk. If the property is contraband of and the officer has reasonable cause to believe that a crime was committed or was about to be committed, he/she may arrest the person and seize such property as evidence.
    1. If evidence of a crime is discovered after a stop and frisk has occurred, the officer should record field notes which may be used at court proceedings; and include the facts and circumstances that led him/her to:
    2. Have reasonable suspicion to make the stop.
    3. Have reasonable suspicion that the person was carrying a weapon or dangerous instrument and that they were in danger of physical injury.
    4. Have reasonable suspicion or cause to believe that a crime had been committed, is being committed or is about to be committed.
4. Custodial Search Incident to Arrest
  1. When a person is arrested for a crime, the officer will conduct a complete search of their person and the area immediately surrounding them for the purpose of discovering:
    1. If a weapon or dangerous instrument is hidden nearby that could be used against the officer or someone else.
    2. If an item of is hidden nearby that the arrestee could use in an attempt to escape.
    3. If there is evidence nearby that the arrestee could conceal or destroy if he/she were able to reach it.
  2. The initial search should be conducted by the arresting officer.
    1. Prior to transporting the prisoner, the transporting officer, if other than the initial searching officer, will also conduct a custodial search of the suspect.
    2. All property seized as a result of such a search will be noted and the property will be processed in accordance with established Departmental procedures.
    3. Such property shall be properly witnessed by the receiving officer and the prisoner.
  3. Whenever possible female prisoners will not be searched by male officers nor male prisoners searched by female officers. Examples of exceptions are:
    1. There is reason to believe that the prisoner possesses something capable of injuring him/herself, the officer, or others.
    2. There is reason to believe that the prisoner has evidence or contraband hidden about their person and that such evidence is in imminent danger of being disposed of or destroyed.
  4. If an officer is unsure how much of the area surrounding the arrestee can be legally searched he/she may:
    1. Secure the area (or vehicle) to preserve the evidence and prevent contamination of the arrest scene.
    2. Immediately make application to the court for a search warrant.
  5. A warrantless search should not be made of a motorist or his/her vehicle incident to an arrest for a traffic infraction.
5. Strip Searches
  1. Strip searches on adults will only be conducted with prior authorization from a supervisor unless emergency circumstances exist. Strip searches on juveniles will only be conducted with prior authorization from a Commanding Officer unless emergency circumstances exist.
    1. If emergency circumstances exist, the officer will notify a supervisor as soon as possible after the search is concluded.
    2. The supervisor will notify the Duty Chief before a strip search is conducted or after notification that one has been conducted under emergency circumstances.
  2. Strip searches will only be performed on arrested persons, including those arrested for traffic infractions and other minor, non-violent offenses when there is reasonable, articulable suspicion to believe that the person being searched is concealing a weapon, controlled substance, evidence or other contraband. Reasonable suspicion may be based upon, but not limited to:
    1. The nature of the offense.
    2. The arrestee’s appearance and demeanor.
    3. The circumstances surrounding the arrest.
    4. The arrestee’s criminal record, particularly past crimes of violence and narcotic offenses.
    5. The discovery of evidence of a major offense in plain view or in the course of a search incident to arrest.
    6. Detection of suspicious objects beneath the subject’s clothing during a search incident to arrest.
  3. Strip searches of arrested persons in the field will only be conducted in rare circumstances, under exigent circumstances where the life of officers or others may be at risk, and only in privacy with prior approval from a supervisor.
  4. Obtaining a search warrant is not required to conduct a strip search. Officers are reminded that a strip search must be based on a reasonable, articulable suspicion to believe that the person is concealing a weapon, controlled substance, evidence or other contraband.
  5. All strip searches will be conducted by an officer and a witnessing officer of the same sex as the arrested person and in a location where the search cannot be observed by persons not physically conducting the search or not required to be present during the search.
  6. All strip searches are to be documented in the officer’s Incident report and will include:
    1. The names of the officer(s) actually conducting the search.
    2. Date, place and time of the search.
    3. Any other officers present and their purpose for being there.
    4. An articulation of reasonable suspicion, leading to the search.
    5. A detailed description of the nature and extent of the search.
    6. Any weapons, evidence or contraband recovered during the search.
  7. Should visual examination of a suspect during a strip search and/or other information lead an officer to believe that the suspect is concealing a weapon, evidence or contraband within a body cavity, a body cavity search may be conducted following the procedure set forth in section IV-F (below) of this policy.
  8. Any weapon, controlled substance, evidence or other contraband discovered during a strip search or body cavity search will be turned in as evidence following the procedures set forth in MO 402-Collection and Preservation of Evidence-Crime Scenes and MO 205-Property and Evidence Management.
6. Body Cavity Searches
  1. The following procedure shall be utilized for conducting body cavity searches, which applies to adults and juveniles:
    1. The suspect shall be kept under constant visual surveillance until a body cavity search is conducted or alternative course of action taken.
    2. The officer shall consult with a supervisor to determine whether probable cause exists to seek a search warrant for a body cavity search. The decision to obtain a search warrant acknowledges that a body cavity search is highly invasive of one’s personal privacy and is reasonable only where the suspected offense is of a serious nature and/or poses a threat to the safety of officers or others.
      1. Body cavity searches will not be conducted without a search warrant.
    3. The affidavit filed for the search warrant shall clearly define the nature of the alleged offense and the basis for the officer’s probable cause.
    4. On the basis of a search warrant, a body cavity search shall be performed only by an authorized physician or by other medically trained personnel at the direction of an authorized physician.
    5. For safety and security, the search shall be conducted at an approved medical facility, taking into account privacy and hygienic consideration.
    6. The authorized physician conducting the search will file a medical report with the requesting agency, listing the results of the exam.
7. Searches of Premises or Vehicles Due to Exigent Circumstances
  1. Exigent circumstances may occur when an officer needs to enter premises or a vehicle, conduct a search, and seize evidence.
    1. This type of warrantless search is limited in nature and should be undertaken with discretion.
  2. When exigent circumstances occur, before conducting a search, the officer must have:
    1. Reasonable suspicion or cause to believe that a crime has been or is being committed.
    2. Reasonable suspicion or cause to believe that if immediate action is not taken, the crime will be completed.
    3. Reason to believe that evidence of the crime will be destroyed or otherwise lost.
    4. Reasonable suspicion that he/she or others may suffer physical injury or death.
  3. Many times, the courts have not suppressed evidence seized during a warrantless search conducted under exigent circumstances when the officer was able to fully explain the reasons why the search was necessary.
  4. When a search and seizure takes place under exigent circumstances, it must be executed immediately as circumstances are unfolding. The search cannot take place hours or days later or at another location other than the original scene.
  5. If evidence is not in plain view and there is little or no indication that it may be destroyed or otherwise lost, secure the area and obtain a search warrant to conduct a full and complete search.
8. Plain View Observations
  1. Plain view observations are not searches and occur when an officer observes items that are in plain sight. Plain view observations may be made:
    1. From close up or at a distance.
    2. From inside a building or structure
    3. While outdoors (ie. Outside a vehicle, looking in)
    4. When an officer observes someone or something that causes them to have reasonable suspicion or cause to believe that a crime is being, has been or is about to be committed.
    5. When the officer’s observations were not planned, such as in a surveillance operation.
  2. If during a plain view observation, an officer observes proceeds or evidence from the commission of a crime, items used to commit a crime or contraband and he/she has reason to believe that they do not have time to secure a search warrant before such items could be removed or destroyed, they may seize them.
    1. If an officer questions the legality of making such a seizure, to strengthen the possibility that the evidence will not be suppressed during court proceedings, the officer may:
      1. Continue his/her observation (without being seen, if possible).
      2. Obtain assistance to secure the area.
      3. Make an immediate application to the court for a search warrant.
9. Consent Searches
  1. Consent searches may be conducted when an individual gives an officer verbal or documented permission to conduct a search of their person or property.
  2. When searching property, permission must be obtained from a person who has legal control or rights over such property (ie. a tenant who rents a property, property owner, property manager).
  3. Any property that could be seized during the execution of a search warrant, may also be seized during a consent search.
    1. When money or other property consisting of numerous items is seized, two officers should independently count it and verify the result for accuracy.
  4. When conducting a consent search:
    1. Ask for verbal permission from the person who will be searched or the person who has legal control of a property.
    2. Advise that person that they have the right to refuse the search.
    3. Ensure that the person understands and his/her consent is given voluntarily.
      1. Silence or no response from a person whose consent is being sought does not constitute consent.
      2. Officers should not imply that they have the right to conduct a search where consent is needed whether or not such consent is given.
      3. Officers should also not imply that a refusal to give consent will result in the person’s arrest.
  5. Verbal consent is legally sufficient but written consent is better. During court proceedings, written consent tends to carry more weight.
10. Applying for and Executing Search Warrants
  1. When applicable and if an incident scene can be secured, a search warrant should be obtained before conducting a search. Items seized during a properly executed search warrant have a higher chance of being admissible in court.
  2. The areas to be searched and items sought are only those listed on the warrant.
    1. When a search warrant application is completed to request the search of a designated location for certain items that are believed to be present, include a request to search all designated or described persons at the premises when the warrant is executed.
  3. Search warrants may be requested to search any of the following:
    1. A designated or described premises or place.
    2. A designated or described person.
    3. A designated or described vehicle.
  4. Probable cause should be established before applying for a search warrant.
  5. When possible, submit the warrant application to a Superior Court in the county where the offense occurred.
    1. The correct local criminal court is the court where there is proof (at the time of application) that some part of the offense occurred within its jurisdictional area.
    2. Prepare an application for search warrant form (original and 2 copies). The court retains the original form.
      1. One copy of the application will be added to the case file and one copy will be submitted to the District Attorney’s Office.
  6. When an application for a search warrant is based on allegations based on information obtained from a confidential source, the application must also contain specific facts that establish both the credibility of the confidential source and the reliability of the information obtained. Reliability may be established by including information in the application such as:
    1. Incidents when the confidential source has previously provided information that was reliable and led to arrests and convictions.
    2. How the confidential source claims to have obtained the information. This information should be direct knowledge, not hearsay.
    3. How current the information is that was provided.
    4. How detailed the information is in describing the particulars of the item(s) sought and the place where it (or they) is located.
    5. Corroboration of the information obtained from the confidential source.
  7. If the judge decides that reasonable cause has been presented to him to authorize the conduct of a search, he will issue a search warrant.
  8. If the judge grants the search warrant, it must be executed within the required time period.
  9. To satisfy the requirements of the fourth amendment of the U.S. Constitution, the items to be seized must be set forth in the application and warrant with particularity.
    1. Catch-all phrases to describe the items to be seized should be avoided in the warrant application.
    2. Descriptions by class or category may be acceptable, if they are followed by language which requires separation of the items to be seized from the general category described in the application.
    3. Phrases that may limit and narrow a general classification of items should refer to specific time periods, categories, types of offenses, events or persons.
  10. The application must list specific details in order to establish probable cause. Officers should also:
    1. Attach the application to the warrant; and
    2. Include words of reference from the application in the warrant.
  11. When completing an application and applying for a warrant to seize documentary evidence, the officer should consider the specific documents that the warrant would allow him/her to seize.
    1. If the application and warrant include the language: “only those for which there is established reasonable (probable) cause to believe are evidence in the crime(s) now under investigation”, the warrant will most likely be granted and upheld in court.
    2. If the language states that the documents could be other than those for which reasonable (probable) cause to believe are evidence of the crime(s), the application may be denied or if the evidence is obtained as a result of the execution of the warrant, it may be suppressed by the court as being too broad.
  12. The application may be reviewed with the District Attorney’s Office before submitting it to the court.
11. Inventory and Acknowledgment Forms
  1. When property is seized by consent or by search warrant:
    1. At the search location (premises, vehicle or person), prepare a search and seizure receipt and inventory form (original and 3 copies).
    2. On the form, make a detailed inventory of all property seized.
    3. Give one copy of the form to the person from whom property was seized.
    4. If property was seized from a premises or vehicle, give the copy to the owner, tenant or other person in possession of the property.
    5. If the owner, tenant or other person in possession of the property is not present, leave the copy at the place where the property was seized.
  2. Without delay, return the search warrant and the property to the judge that issued them along with the original of a search and seizure receipt and inventory form.
  3. The officer should keep one copy of the form for his/her records and one copy for submission to the District Attorney.
12. Search Orders
  1. Officers may receive a request to assist a probation officer in executing a valid search order.
  2. A search order may authorize a probation officer to search the person of a defendant, any premises in which he/she resides, any real or personal property that he/she owns or that such person has in their possession.
  3. The legal test of reasonableness for a search (and seizure) under a search order differs from what is applicable to a search warrant.
  4. The search order is used to:
    1. Ensure that the conditions of parole or probation are being complied with; and
    2. Influence the person to refrain from unlawful conduct.
  5. The property that may be seized can be anything needed to establish compliance or lack of with parole or probation conditions.
13. Administrative Searches
  1. Officers may receive a request to assist with or conduct an administrative search that addresses violations of laws, rules or regulations governing tightly regulated businesses.
  2. An administrative search is not for the seizure of evidence to be used in a criminal prosecution. Its’ purpose is to ensure compliance by businesses with governmental laws, rules or regulations.
  3. Evidence seized under an administrative search may be admissible in a criminal prosecution.
  4. Administrative searches may be conducted with or without a search warrant, depending on the existence or the lack of exigent circumstances.
  5. The application for an administrative search warrant requires the listing of reasonable legislative or administrative standards. This requirement is less than the requirement for reasonable cause.
  6. Items subject to an administrative search must be limited to those belonging to the business that is regulated by law.
  7. When entry into a business is refused, conducting a search after forcing entry without an administrative search warrant is a violation of the Fourth Amendment to the U.S. Constitution.
  8. The following are some examples of businesses that may be subject to an administrative search:
    1. Firearm dealers and gunsmiths;
    2. Pawnbrokers;
    3. Junk dealers;
    4. Scrap processors;
    5. Wholesale and retail off-premises sellers of alcoholic beverages; and
    6. Automotive dismantlers.
14. Environmental Conservation Searches
  1. Environmental conservation searches are warrantless searches that are conducted as the result of an Environmental Conservation law:
    1. The search must be consistent with the limits and purposes of the applicable law, to detect or prevent Environmental Conservation law offenses.
    2. These searches cannot be made to collect evidence for use in the prosecution of other offenses.

Original: 01/30/1997	Revised: 02/18/2021
Revised: 04/30/2003
Revised: 10/01/2014
Revised: 07/03/2019