MEDICAL UNIVERSITY OF SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY |
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| POLICY AND PROCEDURE # 63 | SUBJECT: Search Procedures |
| EFFECTIVE DATE: 1 January 199 | PAGE 1 OF 12 |
| REVIEW DATE: 1 January 2001 | APPROVED: |
| CHANGE DATE: | |
A. Policy
All searches conducted by members of this Department must meet the requirements of the 4th Amendment to the U.S. Constitution and S.C. State Law. It is important to understand that an illegal search will render any evidence found during the search inadmissible in court, and will most likely result in the executing officer being held liable for his or her actions. (CALEA 1.2.4)
Except as indicated in this procedure, it is the policy of this Department to obtain Search Warrants where it is possible and appropriate before conducting searches.
B. Procedure (CALEA 1.2.4)
1. Purpose:
a. A Search Warrant is an order issued by an authorized member of the Court pursuant to the requirements of the 4th Amendment to the U.S. Constitution and State Law.
b. The Warrant directs law enforcement officials to search for and seize specified items or property at a particular location. The following are examples of such property:
1) Stolen or embezzled property
2) Property, the possession of which is unlawful.
3) Property which is being used or has been used in the commission of a criminal offense, or is possessed with the intent to be used as the means for committing a criminal offense, or is concealed to prevent a criminal offense from being discovered.
4) Property constituting evidence of a crime or tending to show that a particular person committed a criminal offense.
5) Any narcotic drugs, barbiturates, amphetamines or other drugs restricted to sale, possession or use on prescription only; which are manufactured, possessed, controlled, sold, prescribed, administered, dispensed or compounded in violation of any of the laws of this state or of the United States.
Narcotics, barbiturates or other drugs seized hereunder shall be disposed of as provided by # 44-53-520.
2. Who May Issue a Search Warrant:
In South Carolina, only the following officials are authorized to issue a Search Warrant:
a. Magistrate
b. Municipal Court Judge
c. Circuit Court Judge
3. Requirements for a Search Warrant:
a. Form: A standard Search Warrant Form is provided for use by all police officers in obtaining a Search Warrant. It consists of two parts - the first part consists of an Affidavit which, when filled in, includes a description of the premises, place or thing to be searched, description of the property sought, and the probable cause to justify the search. The second part consists of a "return", which must be completed and returned to the issuing authority after completing the search. Prepare the form in an original and two (2) copies.
The Senior Investigator will insure that an adequate supply of forms is available within the Department.
b. Affidavit: The Affidavit must be filled in before presenting the case to the issuing Judge or Magistrate; however, it must not be signed by the officer until the issuing authority approves. The Duty Investigator will assist as necessary in accomplishing the form. The form must be accomplished according to the following procedures:
1) Description of the Premises (person, place or thing) to be Searched: Try to describe the premises to be searched in such complete detail that no officer, even one completely unfamiliar with the case involved, could make a mistake with respect to what premises he has authority to search.
a) In an urban area, describe (as a minimum) premises by: street and number, type of building (residence, office building, factory, etc... and any other descriptive numbers), description of building (number of stories, type of construction, color, material, etc...).
b) In rural areas, describe with as many details as are pertinent, plus names and numbers of highways, farm roads, lanes, directions and distances from other named premises and other established landmarks.
2) Description of Property Sought: Property which you wish to search for and seize must be described "particularly", which means exactly that. Descriptive data, such as trade name, model, serial number, dimensions, shape, color, scars and marks, distinguishing features, tags, etc..., must be such that it would permit the searching officers to distinguish the property from other such property having some of the same characteristics.
3) Probable Cause: This is where the requesting officer must state, in detail, the justification for the search. Under the law, no search warrant can be legally issued unless there is sufficient probable cause. As a minimum, sufficient probable cause consists of the facts and circumstances which reasonably show that:
a) an offense has been committed.
b) the items sought are connected with criminal activity.
c) such items will be found in the place to be searched.
4) Unless the above elements are fully met, the search warrant will be denied. Probable cause should be prepared and submitted according to the following procedures:
a) For better organization and ease of reading, use a separate paragraph for each item of probable cause and source of information being used.
b) If information being used is within the personal knowledge of the officer (affiant), make this fact clear.
c) If information being used is hearsay to the affiant, identify any sources (except confidential informants) clearly, by name, address and other data which will serve to show the position of the source which permitted him to have known of the related information.
d) Do not imply or otherwise claim credit for information as being first-hand when it is actually hearsay. Hearsay grows weaker rapidly with each person involved.
e) Be certain to include all pertinent dates, including dates on which the information was furnished to the officer and dates of all pertinent incidents or events concerning the source of the information.
f) If there is some compelling reason for not identifying a source (such as an informant), attempt to get the same information through some other means and thus eliminate the need for quoting the source at all. If such is not possible, the following steps are required if the source's information is to be credited and his identity not be disclosed.
(1) The test for using informant information in an affidavit is "totality of the circumstances" rule which permits a Magistrate to make a determination of probable cause based on the totality of information available to him. List all information available from the informant pertaining to the violation.
(2) Show corroborative information. Such corroboration may be in whole or in part, and may be by other sources, by independent investigation or otherwise.
g) Never make "bald" unsupported statements. Support all information with details, properly credited.
h) The decision to issue or deny a warrant rests solely with the Judge or Magistrate. It is not up to the police officer.
If the Magistrate, Municipal Judge or other judicial officer mentioned above, is satisfied that the grounds for the application exist or there is probable cause to believe that they exist, he shall issue a warrant. Otherwise, the warrant will be denied.
4. Executing the Search Warrant
a. It is the policy of this Department that all Search Warrants be served as soon as possible. After 10 days from the date of issue, if the warrant has not been served, the warrant will become invalid. If that is the case, return the unserved warrant to the issuing authority and explain the circumstances.
b. As a general rule, Search Warrants should be served during daylight hours, Monday - Saturday. Night time or Sunday execution must be specifically justified based on the circumstances. Some of the exceptions to the Daylight and Sunday Rule includes searches made due to drug, liquor or gambling violations.
c. Serving of the warrant must be planned and organized. Under no circumstances will this process become a "free-for-all". Use the following procedures:
1) Depending on the type facility, area, vehicle or other place to be searched, an appropriate number of personnel will be organized into a Search Team. If possible, at least one (1) Investigator should be assigned.
2) The Senior member of the Team will be designated as Team Leader and will brief all other personnel on proper procedures, to include:
a) a detailed description of the items sought;
b) team member assignment;
c) a reminder of what other items, not listed on the warrant, can be seized during the search;
d) team member safety;
e) the use of safety equipment such as gloves and other specialized equipment, which may be required due to the circumstances; and
f) scope, duration and method of the search.
3) The Team Leader must insure that appropriate Chain of Custody forms, tags and containers are available to correctly document, mark and process any evidence.
4) Before entering a facility or other place to be searched, the Team Leader will announce their presence and the fact that they have a warrant to search the facility. The only exception is if there is imminent danger to the police officers or if evidence could be destroyed.
5) After notification, allow a reasonable length of time for those inside to respond. If there is no response, reasonable actions will be taken to forcibly enter the facility.
6) The Team Leader will not actively participate in the search. He will designate specifically where the various Team members are to search, and supervise their actions. He will also take charge of each item found, to include maintaining the inventory, documenting precisely where each item was found and by whom, and he will insure that the Chain of Custody is kept intact.
7) When an item is found, the Leader will notify all other Team members to temporarily stop the search until that item is fully documented, photographed and controlled. When that is accomplished, all Team members will be notified to resume the search.
8) Care will be taken not to cause unnecessary damage to property. All damage resulting from the search will be documented.
9) In addition to the items listed in the Search Warrant, the following items may also be confiscated, provided they were in plain view:
a) unlawful drugs
b) contraband
c) anything used in the commission of a crime
d) evidence indicating that a crime had been committed
10) When all items specifically described in the warrant have been found, the search must be terminated.
11) At the time of the search, a copy of the Search Warrant will be delivered to the person in charge of the place searched. If the person in charge is not known or can not be found, attach a copy of the warrant to a prominent part of the facility.
12) When the search is over and the search team is ready to depart, the facility, automobile, building or thing searched must be secured. This may be accomplished by locking doors, impounding vehicles, locking gates, or by returning control of the facility to the owner or other responsible person. Under no circumstances will state or personal property be left unsecured as a result of a search.
c. Warrant Return:
1) As indicated above, the Team Leader must maintain a detailed inventory of all items confiscated during the search. This can be accomplished by listing each item on the Warrant Return.
2) The Return must be fully completed and returned to the issuing authority as soon as possible after the search.
3) The Team Leader must present the person, in charge of the facility, with a signed copy of the inventory, which will notify the person as to what was confiscated and will serve as a receipt. If the person in charge is unknown or not present, leave the inventory with the warrant as indicated above.
5. Exceptions to the Search Warrant Requirement
(CALEA 1.2.4)
a. The Constitution of the United States, Supreme Court Rulings, South Carolina State Statutes, and other case law, dictates when a police officer must obtain a warrant to search a person, place, or thing. There are limited exceptions to these rules as outlined in this procedure and the key to the successful, legal discovery of evidence and/or contraband is the reasonableness of an officer's actions. The exceptions to a Search Warrant are:
1) Consent to Search: A Consent to Search is lawful provided the searching officer can show that the consent was freely given and that the person was advised of their rights under the 4th Amendment, and the person knew they could refuse. Although the advisement of rights is not specifically required by law in this instance, it helps to show that the consent was freely given. For Written Consent, see Attachment #1. (CALEA 1.2.4.a)
2) Incident to Arrest: The authority to search following a full custody arrest is an exception to the warrant requirement and allows a full and complete search for weapons, implements of escape or evidence of the arrestee's crime. The search should be made at the time and place of arrest or as soon thereafter as practicable, and includes the person of the arrestee, portable personal property in the arrestee's possession, and the immediate surrounding area, from which the person could seize a weapon or destroy evidence. (CALEA 1.2.4.g)
a) Officers of this department WILL NOT conduct strip searches. In the event that there is a legitimate need for a strip search of an arrestee, for contraband, such search will be conducted within the confines of the Charleston County Jail, and ONLY by employees of the jail. (CALEA 1.2.8.a thru .c)
b) A protective sweep of a premises where an arrest is made may be conducted if the officer has a reasonable suspicion that confederates, accomplices, or others are present and could jeopardize the safety of the officer(s) or arrestee. It is limited to a brief inspection of only those places where a person could be concealed. Evidence or contraband that is discovered in plain view during a protective sweep may be seized or the observation used to obtained a search warrant. (CALEA 1.2.4.e)
c) Anytime an officer is in a place he has the lawful right to be and observes evidence or contraband in PLAIN VIEW, HE MAY SEIZE IT.
3) Inventory of Vehicles or Other Property: The concept of inventory is based on the idea that police officers frequently come into possession of property belonging to other people and is based on three interests:
a) Protecting the owner's property.
b) Protecting officers against claims of theft or damage.
c) Protecting the police and public against dangerous instrumentalities.
Officers must have lawful custody of the vehicle or property to conduct an inventory. All vehicle and property taken into police custody shall be inventoried to insure the safety of the public and their interests. A written report (tow, evidence, incident, supplemental, etc) will be made on all property in police custody that is inventoried and shall be maintained in police records. The policy of this Department is to first obtain a warrant or voluntary consent to search a vehicle if possible. NOTE: Vehicle inventory searches will be conducted as outlined in Procedure # 11.0. (CALEA 1.2.4.f)
4) Emergency Searches: The law recognizes that under certain emergency circumstances, the requirement of a search warrant is waived and an officer may properly make warrantless entry. This immediate warrantless entry is justified to protect life and safety, to arrest a fugitive in hot pursuit, and to preserve evidence from being destroyed or removed.
a) Officers should be prepared to justify their conduct by facts supporting a reasonable belief that an emergency existed. (CALEA 1.2.4.e)
5) Stop and Frisk/Protective Frisk: A Limited search for weapons using a pat-down of the outer clothing when officers have articulable reason to fear for their safety. Objects which are felt and believed to be weapons may be retrieved and subsequently used as grounds for arrest if the objects possession is unlawful. Refer to Procedure #24 B.9.b. (CALEA 1.2.4.b)
6) At the scene of a crime: A crime scene may not present exigent circumstances that will permit a warrantless search of the entire premises or area. Officers may respond to an emergency and seize evidence that is in plain view. Any extended search of a premises directed against a person possessing Fourth Amendment protection in that premises, must be done with a search warrant or with that person's consent. (CALEA 1.2.4.d)
7) Search of a Vehicle under a movable vehicle exception: Search of a vehicle found on the open road or other public place may be made
without a warrant, consent or arrest where officers have probable cause to believe that contraband or evidence of a crime is present and it is impractical to obtain a search warrant. This search is based on the Carroll Rule because of a reduced expectation of privacy in a vehicle and its mobility.
a) The scope of this type search is the same as that with a warrant and may therefore extend to any part of the vehicle where the evidence sought could be located. The search may include any container found within the vehicle wherein the evidence sought could be located. (CALEA 1.2.4.c)
NOTE: Regardless of the situation, all police officers are bound by the requirements of the 4th Amendment to the U.S. Constitution. The above exceptions will not be used as an excuse not to obtain a warrant, when obtaining a warrant is clearly possible and appropriate.
6. Control of State Property
a. In accordance with Medical University Policy, state property must not be removed from the campus without written authorization. The authorization must be signed by the Department Chairman having control of the property in question, or by someone designated by the Chairman.
b. All personnel, observed departing a building or the campus with state property, will be checked for proper authorization - MISCO Form 22 at the Medical University and a memorandum at the College of Charleston.
If the authorization is in order, allow the person to proceed with the property. If the person has no authorization, or there is something suspicious, hold them and call your Supervisor. As soon as possible, someone from the owning-department must be contacted for verification.
c. All persons observed departing buildings or the campus with boxes, bags or other suspicious parcels will be checked to ascertain the contents in the following manner:
1) Stop the individual, identify yourself and explain why they were stopped.
2) Ask the individual if you can search the bag or parcel to determine its contents. If the individual willingly gives permission, proceed with the search. If all is in order, allow them to proceed. If state property or other unlawful property is found, notify your supervisor and take appropriate police action.
3) If the individual does not cooperate by giving permission to search the bag or parcel, and there is no probable cause indicating that a crime had been committed, take the individual's name, notify your supervisor, and allow the individual to proceed with the bag or parcel.
NOTE: Take care not to conduct an illegal search. Permission to search must be given willingly and it should be in writing. In the absence of probable cause, we can only "ask", we "cannot demand".
NOTE: In the absence of probable cause, a package can be detained for further investigation - PROVIDED REASONABLE SUSPICION CAN BE ESTABLISHED.
NOTE: If possible, always have another officer present to assist and to witness the actions taken.
Attachment - PSD-23, Consent to Search