Search and Seizures
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Source file: 1.07 Search and Seizures.pdf. Policy dates appear on the original cover. Page links use the PDF's page order.
M.G.L. links open the Massachusetts Legislature’s website. Citations with no matching section open the cited chapter directory.
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Policy & Procedures No. 1.07
Subject:
Search & Seizures
Issuing Authority: Effective Date: Review Date:
Chief of Police 10-30-2013 11/17/2023
References:
Review
Revision
Reissued
Dates:
2/15/2016
11/29/19
11/12/2021
CALEA STANDARDS
41.4.1
GENERAL CONSIDERATIONS AND GUIDELINES
The term “searches and seizures” includes the examination of persons or places for the discovery
of contraband, property stolen or otherwise unlawfully obtained or held, or of evidence of the
commission of crime, and the taking into legal custody of such property or evidence for
presentation to the court. Failure to comply with the legal technicalities, which govern these
procedures, results in more failures to obtain convictions than any other source. The Fourth
Amendment to the U.S. Constitution has been interpreted by the U.S. Supreme Court to require
that, whenever possible and practicable, with certain limited exceptions, a police officer should
always obtain a valid search warrant in advance.
The Fourth Amendment of the U.S. Constitution declares:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
Article XIV of the Massachusetts Constitution provides as follows:
Every subject has a right to be secure from all unreasonable searches, and seizures, of his
person, his houses, his papers, and all his possessions. All warrants, therefore, are
contrary to this right if the cause or foundation of them be not previously supported by
oath or affirmation; and if the order in the warrant to a civil officer, to make search in
suspected places, or to arrest one or more suspected persons, or to seize their property, be
not accompanied with a special designation of the persons or object of search, arrest, or
seizure; and no warrant ought to be issued but in cases, and with the formalities
prescribed by the laws.
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It is very frustrating to a police officer to learn that evidence which would most certainly lead to
a finding of guilty, has been ruled inadmissible and excluded because of the manner in which it
was obtained. In order to ensure that their efforts will not become lost in the maze of legal
technicalities, it is imperative that all police officers thoroughly understand the basic
constitutional and statutory requirements involved in searching for and seizing criminal
evidence.
The Fourth Amendment to the U.S. Constitution prohibits "unreasonable" searches and seizures
and the Supreme Court has consistently held that unless they come within one of the few
carefully limited exceptions to the search warrant requirement, warrantless searches and seizures
are considered unreasonable. Searches with prior judicial approval with a valid search warrant
are preferred. The burden of showing that a valid exception exists rests upon the government
when the circumstances of a warrantless search are challenged in the courts.
The following procedures have been prepared to provide basic guidelines that are both legal and
practical in the technical area of searches and seizures. In their implementation officers should
consider all related department policies on the following topics: Arrests, Stop and Frisk and
Threshold Inquiries, Search Warrant Affidavits, the Use of Informants and the Collection and
Preservation of Evidence.
I. POLICY
A. It is the policy of the Canton Police Department that:
1. Warrants shall be obtained for all searches whenever possible and practicable; and
2. Searches shall be conducted in strict observance of the constitutional rights of the
parties involved, and with due regard for the safety of all officers, other persons
and property involved.
II. DEFINITIONS
A. Affidavit: A formal declaration or statement of facts, in writing, made voluntarily and
confirmed by oath or affirmation before a person having the legal authority to administer
such oath or affirmation.
B. Exigent Circumstances: Situations in which law enforcement officials will be unable or
unlikely to effectuate a search or seizure for which probable cause exists unless they act
swiftly and without prior judicial authorization.
C. Probable Cause: The facts observed, information obtained from others and personal
knowledge and experience that is sufficient to lead a reasonable and prudent person to
believe that a particular crime has been, is being, or is about to be committed, and that
seizeable evidence of crime is likely to be found in a specific location or on a specific
person and which would justify a judge or magistrate to issue a search warrant.
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III. PROCEDURES
A. Search Warrants
1. Obtaining a Search Warrant
The legal procedure specified by M.G.L. c. 276, s. 1 for the issuance of a search
warrant is as follows:
a. A court or justice authorized to issue warrants in criminal cases may, upon
complaint on oath that the complainant believes that any of the property or
articles hereinafter named are concealed in a house, place, vessel or
vehicle or in the possession of a person anywhere within the
commonwealth and territorial waters thereof, if satisfied that there is
probable cause for such belief, issue a warrant identifying the property and
naming or describing the person or place to be searched and commanding
the person seeking such warrant to search for the following property or
articles:
i. Property or articles stolen, embezzled or obtained by false
pretenses, or otherwise obtained in the commission of a crime;
ii. Property or articles which are intended for use, or which are or
have been used, as a means or instrumentality of committing a
crime, including, but not in limitation of the foregoing, any
property or article worn, carried or otherwise used, changed or
marked in the preparation for or perpetration of or concealment of
a crime;
iii. Property or articles the possession or control of which is unlawful,
or which are possessed or controlled for an unlawful purpose;
except property subject to search and seizure under sections forty-
two through fifty-six, inclusive, of chapter one hundred and thirty-
eight;
iv. The dead body of a human being; and
v. The body of a living person for whom a current arrest warrant is
outstanding.
vi. Biological or trace evidence, including body tissues/and or fluids
including blood and blood serums, saliva, hair and fibers
vii. Buccal samples for future forensic testing
NOTE: The word "property" as used in this section shall include books,
papers, documents, records and any other tangible objects.
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b. A search warrant may also authorize the seizure of evidence.
c. FORM OF SEARCH WARRANT: A search warrant shall:
i. Designate and describe the building, house, place, vessel or vehicle
to be searched;
ii. Particularly describe the property or articles to be searched for;
iii. Be substantially in the form prescribed in G.L. c. 276, s. 2A; and
iv. Be directed to a sheriff or his/her deputy or to a constable or police
officer, commanding him/her to search in the daytime, or if the
warrant so directs, in the nighttime, the building, house, place,
vessel or vehicle where the property or articles for which [s]he is
required to search are believed to be concealed, and to bring such
property or articles when found, and the persons in whose
possession they are found, before a court having jurisdiction.
d. An officer requiring a search warrant should consult with his/her superior
and obtain his/her advice and guidance before proceeding to court. If the
court is not in session, the officer-in-charge shall communicate with an
authorized court official to make the necessary arrangements to secure a
search warrant.
i. If legal assistance is required for the preparation of the search
warrant affidavit, the District Attorney's office should be
contacted.
ii. Every search warrant issued and any action taken on such warrant
should be recorded in police department files in accordance with
standard departmental procedures.
4. Executing Search Warrants
a. After a search warrant is obtained, a police officer shall:
i. Check the warrant to ensure that it is signed and it clearly describes
the place to be searched and the articles to be seized;
ii. Execute the warrant immediately, or within a reasonable time, but
in any case, within seven days from date of issuance;
iii. Execute the warrant in the daytime unless it specifically provides
for nighttime search. Nighttime for this purpose is from 10:00
p.m. until 6:00 a.m.;
iv. A search begun in the daytime may continue into the nighttime if
such activity is reasonable and not for the purpose of harassment.
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b. Service of Search Warrant
i. Upon arrival at the location to be searched, officers shall check to
make certain that the premises are in fact those described in the
warrant.
ii. Upon entering, show a copy of the warrant (not the original) to the
person or persons lawfully on the premises unless the
circumstances are such that this is not practical.
iii. The number of officers assigned to execute a search warrant should
be dependent upon the particular circumstances. It is a good
practice for at least one of the searching officers to be in police
uniform, unless this would jeopardize the success of the search.
iv. A search warrant should not be executed in or on any premises in
the absence of the owners, unless there is good reason to believe
that the occupants do not intend to return for an extended period of
time (or that they do not intend to return at all); or that the property
or articles designated in the search warrant will be removed or
destroyed if the premises are not searched immediately. In all such
cases, the manner of entry shall be made with the least possible
destruction of property and a copy of the warrant left in a
conspicuous place on the premises.
c. Knock and Announce Requirement For Dwellings
i. When serving a warrant at a private dwelling, police officers must
knock, identify themselves as police officers, announce that they
have a warrant to search the premises and demand entrance, except
in limited circumstances.
[a] Officers may knock on the door and gain entry by
deception or by means of a ruse, if this will result in a safe,
practical and successful execution of the search warrant
with less destruction of property.
ii. Officers shall always seek entry as peacefully as possible, but
forcible entry is authorized if, after waiting a reasonable time, it
becomes apparent that:
[a] The officers will not be admitted voluntarily;
[b] The officers or any other persons are in danger of physical
harm;
[c] The occupants are escaping; or
[d] Evidence is being, or is in danger of being destroyed.
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d. No Knock Entry
i. An immediate, forcible entry (or one gained by a ruse or trick) is
authorized -- and the usual knock and announce procedure may be
disregarded if the searching officers are in possession of reliable
information that the person inside the dwelling to be entered has
knowledge of the officers' purpose and presence or where to follow
the knock and announce procedure:
[a] Would be likely to endanger their safety or the safety of
others;
[b] Would be likely to enable the wanted person(s) to escape;
or
[c] Would be likely to result in the evidence being destroyed
during the period between their announcement of purpose
and subsequent forcible entry.
ii. Officers shall apply for a "no knock and announce" warrant, if they
have reason to believe the knock and announce rule should not be
observed when the warrant will be executed.
Note: If the circumstances which would justify disregarding the
knock and announce rule are no longer present when the warrant is
executed, the knock and announce rule must be followed.
iii. Upon gaining entry, the searching officers should immediately
identify themselves as police officers and should state that it is
their purpose to serve a valid search warrant issued by the court.
e. Search Responsibilities
The police officer responsible for the execution of a search warrant:
i. Shall not exceed the authority granted by the warrant;
ii. Shall make a diligent effort to find all the property listed in the
warrant;
iii. Shall not search beyond the area described in the warrant unless
consent is obtained or exigent circumstances exist. (If the warrant
authorizes a search of the first floor of a building, e.g., a search of
the second floor is unlawful). 41.4.1 A
iv. Shall search only those areas capable of containing the property
listed in the warrant (if the warrant authorizes a search for a large
TV set, do not search in a small bureau drawer);
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v. Shall carry out the search with the least possible damage to the
premises;
vi. Shall remain on the premises only for the time reasonably
necessary to thoroughly search for and seize the property listed in
the warrant;
vii. Shall terminate the search when the listed property has been found
or when it reasonably appears that such property is not on the
premises;
viii. Shall make adequate provisions for the security of the searched
premises before leaving unless the person in control of such
premises refuses or rejects such police protection;
ix. Shall immediately and directly transport to the police station all
seized property and ensure that it is properly marked, recorded and
safeguarded in accordance with the departmental policies on
Collection and Preservation of Evidence and Evidence and
Property Control;
x. Shall complete the Return section of the warrant and deliver it to
the court as soon as reasonably possible after the completion of the
search, but no later than seven days from the date it was issued;
xi. Shall note on the warrant the action taken with an inventory of all
property seized by authority of the warrant. (If evidence not
described in the warrant is seized, attach a separate sheet to the
Return listing all such property and state that it was seized during
the execution of that warrant); and
xii. Shall make a full departmental report of all action taken on a
search warrant, to be submitted to the officer-in-charge before
returning the warrant to the court.
f. Plain View
i. When police officers lawfully enter a dwelling with a valid search
warrant, they may seize objects reasonably believed by them to be
connected with criminal activity if in plain view even though not
mentioned in the search warrant. See Section IV(B)(9) below for
the legal requirements to seize items in plain view. 41.4.1 G
g. Search of Persons on the Premises
i. In order to ensure an orderly and safe search, all persons present on
the premises when the police arrive may be detained and prevented
from moving about. However, at least one of the occupants should
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be permitted to witness all aspects of the search, if this is practical
under the particular circumstances
ii. Persons not named in or referred to in the search warrant may not
be searched unless either:
(a) Probable cause exists in regard to the individual to be
searched (however mere presence at a location where
criminal activity has taken place is not enough to constitute
probable cause) 41.4.1 G; or
(b) The officer has reasonable suspicion to believe that such
person is armed and then [s]he may be frisked for weapons.
h. Search of Area Outside the Scope of Warrant
i. If during the execution of a search warrant it appears that there is
probable cause to believe that seizeable property is located in an
area of the premises outside of the scope of the present warrant, a
new warrant shall be obtained immediately, unless consent is
granted or exigent circumstances are present. While the new
warrant is being sought, any occupants of the premises may have
their activities restricted.
B. Search without a Warrant
1. Exceptions to Warrant Requirement 41.4.1 (A, C, E, G)
a. Officers may make a warrantless search only when one of the following
major exceptions to the search warrant applies:
i. Warrantless stopping, questioning and frisking (investigative
detention);
ii. Search incident to arrest (including protective sweep);
iii. Exigent or emergency circumstances search (including "hot
pursuit"); 41.4.1 E
iv. Consent searches; 41.4.1 A
v. Motor vehicle searches; 41.4.1 C
vi. Pre-incarceration and inventory searches;
vii. Protective custody searches; and
viii. Administrative searches.
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b. The following are not considered invasions of any privacy interest and,
therefore, do not come under the search warrant requirement of the Fourth
Amendment generally: 41.4.1 G
i. The "plain view" doctrine;
ii. The “open fields” doctrine; and
iii. Abandoned property.
c. A police officer should never rely on one of these exceptions whenever it
is possible, under the particular circumstances, to obtain a search warrant
in advance.
d. In every case where a search is conducted without a warrant, the police
officers involved shall make a written report of the circumstances to
include all important facts relative to the incident and an inventory of any
evidence seized, in accordance with departmental procedures.
2. Warrantless Stopping, Questioning and Frisking (Investigative Detention)
41.4.1 B
a. Both the Fourth Amendment and Chapter 41, section 98 of the
Massachusetts General laws authorize police officers to briefly detain
suspicious persons, to question such persons and, if the officer reasonably
believes the person may be armed or dangerous, to frisk that person for
weapons. These procedures are sometimes referred to as a "threshold
inquiry." This type of warrantless search and seizure is covered in depth in
the departmental policy and procedure on Stop, Frisk and Threshold
Inquiries.
3. Search Incident to Lawful Arrest 41.4.1 D
a. CRITERIA: A warrantless search of an arrested person may be conducted
under the following conditions:
i. The arrest is lawful and the search is reasonably related to the
circumstances of the arrest;
ii. The search is conducted only for the purposes of:
[a] Seizing fruits, instrumentalities, contraband and other
evidence of the crime for which the arrest was made;
[b] In order to prevent its destruction or concealment; and/or
[c] To remove any weapons that the arrested person might use
to resist arrest or to effect his/her escape.;
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iii. The search is limited in scope to the person of the arrestee and the
immediate surrounding area. Immediate surrounding area means
that area from which the arrestee can either obtain a weapon or
destroy evidence; and
iv. The search is substantially contemporaneous with the arrest and
conducted in the immediate vicinity of the arrest; however, if
safety requires, the officer may delay the search and conduct it at a
safe location.
b. USE OF FORCE: The officer conducting the search may use the degree
of force reasonably necessary to:
i. Protect him/her self and others present;
ii. Prevent escape; and
iii. Prevent the destruction of evidence.
c. SEARCH OF POSSESSIONS AND CLOTHING: A search may also be
made of items actually in possession of the arrested person and clothing
worn at the time of arrest if such search is related to the offense for which
the arrest was made.
d. PROTECTIVE SWEEP
i. In addition to a careful search of the area within the arrested
person's immediate control, an examination of the entire premises
may also be justified at the time of or immediately following a
valid arrest if there is a reasonable belief that it was imperative for
the officers' safety because of the presence of others in the house
or apartment.
ii. This search is limited to areas where an accomplice or other person
who might come to the aid of the arrestee might reasonably be
hiding.
iii. Any item or object recognizable as criminal evidence discovered in
plain view during a justifiable "protective sweep" may be properly
seized.
e. An arrest shall not be used as a pretext in order to make a search.
4. Searches in Emergency or Exigent Circumstances 41.4.1 D, E
a. CRIMINAL ACTS: A police officer is authorized to conduct a search
without a warrant when faced with an emergency situation where delay
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would endanger his/her or the public's safety or might result in the escape
of the offender or the destruction of evidence.
i. The authority of the police to make warrantless entries in
emergency situations, whether criminal or noncriminal is based
upon their fundamental responsibility to preserve the peace and to
protect the public safety. 41.4.1 D, E
ii. The doctrine that permits warrantless entries and searches because
of emergency or exigent circumstances requires justification by the
police that it was impractical for them to obtain a search warrant in
advance and that the warrantless search was truly necessitated by
the emergency circumstances which could not have been
anticipated. 41.4.1 E
iii. While conducting a lawful search justified by emergency or
exigent circumstances, a police officer may seize any incriminating
evidence inadvertently discovered in plain view. 41.4.1 E
b. PUBLIC SAFETY: Many emergencies justifying a warrantless entry and
search do not necessarily involve criminal acts; for example, when a
police officer hears a call for assistance, when [s]he observes smoke or
flame, or when [s]he learns of an actual or potential natural or man-made
calamity or disaster, [s]he has the duty and obligation to respond
immediately. 41.4.1 G
i. BURNING BUILDINGS: A warrantless entry into a burning
building is permissible in an emergency and officials may remain
for a reasonable time to investigate the cause of the fire and any
evidence of arson discovered is admissible at trial. Any reentry
after the fire has been extinguished and officials have left the scene
should be made pursuant to a search warrant, unless the re-entry is
justified by a recognized exception to the warrant requirement such
as consent, emergency or abandonment.
ii. EXPLOSIVES/OTHER DANGEROUS ITEMS: When an officer
has reasonable cause to believe premises contain things
imminently likely to burn, explode, or otherwise cause death,
serious bodily harm, or substantial destruction of property may,
without a search warrant, enter and search such premises to the
extent reasonably necessary for the prevention of such death,
bodily harm or destruction.
c. FRESH AND CONTINUED PURSUIT: The U.S. Supreme Court case of
U.S. v. Santana set out factors supporting justification of exigent
circumstances under this doctrine including: 41.4.1 E
i. There is fresh and continued pursuit of the suspect;
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ii. A crime of violence was involved;
iii. There was a strong possibility that the suspect was armed;
iv. The suspect was known or reasonably believed to be in the
building;
v. There was a likelihood that the suspect might escape unless
immediately apprehended; and
vi. There was sufficient justification for failure to obtain a search
warrant.
d. Where the above or other emergency factors are not present, police may
stake out the building or premises until a warrant is obtained.
5. Search by Lawful Consent 41.4.1 A
a. Because such issues as who may give lawful consent to a police entry and
search or whether the consent was given voluntarily will be carefully
scrutinized by the court, police should not unduly rely on such consent.
On the other hand, when properly elicited, consent to a search may
expedite a criminal investigation. Police may engage in a warrantless
search after obtaining consent even in circumstances where they do not
have probable cause. 41.4.1 A
b. For there to be a valid consent to search, the following two elements must
be satisfied:
i. The consenting party must have sufficient lawful authority over the
premises or property to be able to give consent to a search of that
premises or property, and
[a] Consent may be obtained from any person who has the
right of ownership, possession or control of the premises or
property. If there is serious doubt a search warrant should
be obtained.
[b] JOINTLY OWNED PROPERTY: Generally, if property,
such as a house, apartment or business, is owned jointly by
two or more persons, any one of them may consent to a
search of the common areas of the premises.
[c] SPOUSE: A spouse may give consent to a police search of
a jointly owned home, even without the knowledge or
permission of the other spouse.
[d] PARENT: A parent may give consent to search premises
under the parent’s control although it involves searching a
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child’s room and the parent has general access to the
child’s room. However, where the child, whether or not an
adult, has exclusive access, often locked, to certain areas or
property, the parent’s consent may not be enough.
[e] CHILDREN: Generally, a child may not give consent to a
police search of premises or property owned by the child’s
parents.
[f] ROOMMATE: A roommate may be able to give consent
to a police search of common areas of the apartment but the
roommate probably cannot give consent to a search of areas
exclusively reserved for the suspect, such as his/her
bedroom, luggage or closet.
[g] LANDLORD: Generally, a landlord cannot give consent to
the search of a tenant's apartment. However, a landlord may
give consent to searches of common areas such as hallways
and stairwells.
[h] HOTELS: A hotel or motel owner or manager cannot give
consent to a search of a guest's lodgings.
ii. Consent must be freely and voluntarily given.
[a] Officers shall notify the person from whom consent is
sought of their right to refuse to give consent.
[b] Consent to search may be given orally but preferably, it
should be in writing.
[c] Consent cannot be presumed from silence.
[d] Consent must be free of any coercion, intimidation, or
threat, so officers must avoid even the appearance of
intimidation or duress.
[e] Officers shall not gain consent through the use of
misrepresentation or fraud.
[f] Consent shall be requested prior to search and after the
police officers have identified themselves.
c. A consent search shall be limited to the area specified.
d. Consent may be revoked at any time and the search shall cease upon
revocation, unless additional factors or information have come to light
which justify a continued warrantless, nonconsensual search. For
example, evidence found prior to revocation of consent may be retained
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and used as a basis for an immediate arrest or as probable cause for a
further search (if exigent circumstances exist) or for obtaining a search
warrant.
6. Motor Vehicle Searches
a. Officers are prohibited from stopping motor vehicles without reasonable
suspicion of criminal activity or motor vehicle violations.
b. If it is at all possible and practicable, a search warrant should always be
obtained in the prescribed manner in advance of a motor vehicle search, as
this procedure is generally preferred by the courts.
c. A warrantless search of a motor vehicle may be conducted under the
following circumstances:
i. WARRANTLESS STOPPING, QUESTIONING AND FRISKING
OF MOTOR VEHICLE OPERATOR OR OCCUPANTS: A "stop
and frisk" type of protective search when the officer reasonably
believes that his/her safety or the safety of others is in danger in
order to determine whether a suspect is armed, with the search
confined to the area of the motor vehicle from which a suspect
might gain possession of a weapon.
ii. SEARCH OF MOTOR VEHICLE INCIDENT TO ARREST OF
OPERATOR OR OCCUPANT: A search incident to a lawful
arrest limited to the area from which the person could obtain a
weapon or reach destructible evidence. 41.4.1 F
iii. EXIGENT CIRCUMSTANCES SEARCH: A warrantless search
of a vehicle may be made when the following elements are
satisfied: 41.4.1 C
[a] The vehicle must be lawfully stopped on a public way or is
found parked in a public place,
[b] There is probable cause to believe that the vehicle contains
contraband or other evidence at the initiation of the search,
and
[c] Exigent circumstances are present.
Note: Where exigent circumstances exist, the courts do not require
the police to post a guard and seek a warrant prior to searching the
vehicle.
iv. CONSENT: A search may be conducted with the voluntary
consent of the person in lawful control of the vehicle. 41.4.1 A
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v. ROADBLOCKS: Roadblocks stops (for example, to detect drivers
under the influence of alcohol) are permissible if the selection of
motor vehicles to be stopped is not arbitrary, if the safety of the
public is assured by taking necessary precautions, if the motorists'
inconvenience is minimized and the roadblock procedure is
conducted pursuant to a plan devised by law enforcement
supervisory personnel. In addition, if police have a description of
a suspect vehicle, they may stop all vehicles fitting that
description.
vi. PLAIN VIEW OBSERVATIONS: If a police officer has lawfully
stopped a motor vehicle and is questioning the operator, any
incriminating item in or on the vehicle observed in plain view,
including anything observed with the use of a flashlight, may
furnish probable cause to search the vehicle and seize the item
observed without a warrant.
vii. MOTOR VEHICLE INVENTORY: If the vehicle is impounded,
the vehicle shall be searched and all personal property found in the
vehicle shall be inventoried and kept in safe custody in accordance
with the departmental policy on Motor Vehicle Inventories.
41.4.1 F
viii. ADMINISTRATIVE SEARCHES: Motor vehicles are subject to
various types of administrative searches which do not require
search warrants. For example, the annual motor vehicle inspection
procedure is, in effect, a warrantless search.
d. All police officers shall be especially watchful and alert when stopping
and searching a motor vehicle or its occupants as many officers have been
seriously injured, some fatally, in taking this police action which should
never be considered "routine."
i. In stopping and searching motor vehicles, officers shall take all
reasonable precautions for their personal safety, such as directing
the occupants to alight from the vehicle and frisking them for
weapons when the officer has a reasonable belief that they may be
armed and dangerous.
7. Booking Inventory Searches 41.4.1 F
a. Prior to incarcerating a detainee in a police lockup, police shall conduct an
inventory search of his/her person and inspection of his/her belongings in
accordance with the departmental policies on Detainee Processing and
Protective Custody. This shall be done to uncover and safeguard any
weapons or implements the detainee could use to injure him/her self or
others, to safeguard valuables and to protect the police against false claims
of theft or loss of the detainee’s belongings. 41.4.1 F
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8. Administrative Searches 41.4.1 G
a. The police may, under certain circumstances, engage in warrantless
searches or inspections as part of their administrative functions. For
example, it is proper to search a person who is about to visit a detainee.
See departmental policy on Detaining Detainees.
9. The “Plain View” Doctrine 41.4.1 D, G
a. Officers may seize contraband or evidence without a warrant under the
"plain view" exception to the warrant requirement if the following
conditions are met:
i. There must be a prior lawful entry;
ii. Such entry must bring the officer within "plain view" of the item
seized; and
iii. The item seized must be "immediately apparent" as contraband or
evidence of crime.
b. Lawful entry includes:
i. Entry with a valid warrant;
ii. Entry to make a lawful warrantless arrest;
iii. Entry as a result of lawful consent; and
iv. Entry in an emergency to render necessary aid or assistance.
c. Items are immediately apparent as contraband if the officer has probable
cause to believe they are:
i. Instrumentalities or means by which any crime was committed,
(such as weapons, masks, tools, etc.);
ii. Contraband (articles which may not be legally possessed, such as
counterfeit money or controlled substances, etc.);
iii. Fruits of any crime (such as stolen property);
iv. Other evidence of any crime (such as clothing or other items fitting
the description of the criminal offender); or
v. Property which bears a reasonable relationship to the purpose of
the search (such as documents establishing who owns the premises
searched if ownership is an element of the crime).
CANTON POLICY DEPARTMENT’S SEARCH & SEIZURE POLICY Page 1617PDF page 17Read textHide text
10. Abandoned Property 41.4.1 G
a. Abandoned or discarded property may be searched by the police and
seized. Examples of abandoned property include:
i. Trash in collection area accessible to the public.
ii. The contents of a hotel room wastebasket once an individual has
vacated the room.
iii. An apartment or hotel room may be searched without a warrant
provided the guest or tenant has left with an intention not to return
and the landlord or owner has given permission to search.
iv. Items thrown on the ground by a suspect.
11. Open Fields 41.4.1 G
a. An open field is that portion of privately owned land surrounding a
person’s dwelling that is too remote or removed from the physical
dwelling to be considered part of the “house” such that it is protected by
the Fourth Amendment.
i. The “house” that is protected by the Fourth Amendment includes
the grounds and buildings immediately surrounding the dwelling.
b. Open fields may be searched without a warrant even though the terrain in
question is not easily accessible to the public and even though the owner
may have posted “No Trespassing” signs and may even have a locked
gate.
12. Searches by Persons other than Law Enforcement Officers
a. PRIVATE INDIVIDUAL: Evidence obtained by a private individual, who
is not acting as an employee or agent of the government, as a result of
searching someone else’s property, is admissible.
b. POLICE OFFICER ACTING AS SECURITY GUARD: Evidence
discovered as a result of the warrantless search conducted by a police
officer acting as a private security guard is not admissible if [s]he acts
beyond the scope of the private employer's business.
CANTON POLICY DEPARTMENT’S SEARCH & SEIZURE POLICY Page 17