Policy 253 - Search & Seizure / Residences

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I. Purpose:

The purpose of this policy is to direct officers and
supervisors with respect to home entries.

II. Policy:

The policy of this department is to protect and serve the
constitutional rights of all citizens when conducting home entries
while balancing the needs of law enforcement in solving crime for
the protection of the community.

III. Definitions

A. Probable Cause: (search): Facts and circumstances based upon
observations or information that would lead a reasonable law
enforcement officer to believe that evidence of crime exists and that the evidence exists at the place to be searched.

B. Exigent Circumstances Entry: Entry of a dwelling without a
warrant due to some existing emergency that would not allow an
officer time to get a warrant.

C. Search Incident to Arrest: A search of the arrestee and their
immediate area of control that is allowed whenever a custodial
arrest is made.

D. Consent: The voluntary granting of permission for an officer to
enter an area that is protected by the 4th Amendment, by a person
who has a reasonable appearance of authority over that area.

E. Dynamic Entry: The utilization of a special team i.e., SWAT, ERU
etc. when executing a high-risk warrant, entering to control a
barricaded subject, or similar high- risk event.

IV. Procedure:

At the outset officers are directed that there are only
three lawful methods upon which he or she may enter a person's
dwelling. These methods include a warrant (arrest or search-with
differing rules for each), exigent circumstances, or consent.

A. Risk Assessment Matrix: Unless exigent circumstances exist,
officers shall compile a risk assessment matrix prior to planning
any entry of homes or other buildings.

B. Written Operations Plan: Unless exigent circumstances exist,
officers shall complete a written operations plan prior to
executing any warrant entry of a home or other building.

C. Knock and Announce: Prior to considering a forced entry into a
dwelling, officers must knock at the entrance and announce their
identity and purpose unless one of the following circumstances
exist:

• i. The officer's purpose is already known to the occupant.
• ii.When the personal safety of the officer or others would be
  jeopardized by the announcement.
• iii. When the delay caused by the announcement may enable the
  suspect to escape.
• iv.When a prisoner has escaped and retreated to his home.
• v. When the announcement may cause evidence to be destroyed.
• vi. NOTE: If officers believe that one of the above circumstances
  exist prior to obtaining the warrant, they should seek
  judicial approval for a "no-knock" warrant by outlining the
  factors believed to exist in their affidavit.
• vii. In determining how long an officer must wait before
  forcing entry following the knock and announcement, officers
  should consider the nature of the item sought, and how long
  it would take to destroy the item. The United States Supreme
  Court found 15-20 seconds to be a reasonable amount of time
  in a drug warrant case.

D. Arrest Warrant: Felony or Misdemeanor: An officer may enter the
home of the subject of an arrest warrant in cases where the
officer also has probable cause to believe the subject is home.

 

• i. Knock and Announce Rules Apply
• ii. Search Incident to Arrest-3 Zones

 

• a. At the time of arrest, officers may search the arrestee's
  immediate area of control in the room of arrest.
• b. At the time of arrest, officers may also look into, but
  not enter, areas adjoining the room of arrest, from which
  an attack could be launched.
• c. Officers may conduct a protective sweep, limited to those
  places where a person could be, in cases where the
  officers have reasonable suspicion to believe someone
  else on the premises poses a danger to the officer.
• d. Under Arkansas law these searches are limited to those
  events where at the time of the arrest:

 

1. The accused is in or on premises all or part of which
he is apparently entitled to occupy; and

2. In view of the circumstances the officer has reason to
believe that such premises or part thereof contain
things which are:

Subject to seizure; and connected with the offense for which the arrest is made; and

Likely to be removed or destroyed before a search
warrant can be obtained and served; and

The arresting officer may search such premises or
part thereof for such things, and seize any things
subject to seizure.

• iii. Officers must obtain a search warrant before entering
  the residence of a third party in order to search for the
  subject of an arrest warrant unless exigency or consent
  exists.

E. Search Warrants: Officers must have probable cause to believe
that evidence of crime exists and must have probable cause to
believe it will be located at the place to be searched.

• i. Knock and Announce Rules Apply: All necessary and reasonable force may be used to affect an entry into any building or part thereof to execute a search warrant if, after verbal
  notice or a good faith attempt at verbal notice by the officer
  executing the warrant which states the officer's authority
  and purpose:

 

• a. He or she is refused admittance;
• b. The person or persons on the premises refuse to
  acknowledge the verbal notice or the presence of persons
  inside the building is unknown to the officer; or
• c. The building or property is unoccupied.
• d. Note: where the officer has reasonable grounds to believe
  that the announcement will place the officer in greater
  peril or lead to the immediate destruction of evidence,
  the officer may dispense with the knock and announce
  requirement.

 

• ii. The court issuing the warrant may authorize the officer
  executing the warrant to make entry without first knocking
  and announcing his or her office if it finds, based upon a
  showing of specific facts, the existence of the following
  exigent circumstances:

a. The officer reasonably believes that if notice were given
Policy 253 4 a weapon would be used;

• 1. Against the officer executing the search warrant; or
• 2. Against another person.

b. That if notice were given there is an imminent danger
that evidence will be destroyed.

 

• iii. Nighttime Searches (All searches which occur between the
  hours of 8:00 p.m. and 6:00 a.m.): The affidavit must set
  forth facts justifying a nighttime search-the affiant must
  articulate facts outlining why:

 

• a. The place to be searched is difficult of speedy access;
• b. The objects to be searched are in danger of imminent
  removal; or
• c. The warrant can only be safely or successfully executed
  at nighttime.

 

• iv. The search warrant itself must particularly describe the
  place to be searched and must particularly describe the
  items to be seized.
• v. The scope of a search warrant is limited by information (i.e.,
  information developed indicates that items are stored in a
  specific location). Scope may also be limited by the size of
  the item; (i.e., if looking for a stolen piano, one would not
  open a bureau drawer).
• vi. All search warrants must be executed in a reasonable manner.
• vii. Detention and Search of Persons on the Premises: When
  executing a search warrant, the officer may reasonably
  detain, and in some cases frisk any person in the place at
  the time under the following limitations (these limitations
  apply even in cases where the warrant calls for the "search
  of any person present"):

 

• a. Frisk: To protect him or herself from attack when the
  officer has reasonable suspicion based upon specific
  facts, to believe that the individual present is armed
  and poses a threat.
• b. Search: To prevent the disposal or concealment of any
  item particularly described in the warrant where there is
  probable cause, based upon specific facts, to believe that
  the person to be searched is in possession of said item.
• c. Detain: Officers may detain any person who is present at
  the scene of a residence where officers are executing a
  search warrant. Where officers are executing a dangerous
  search warrant, all person's present may be handcuffed
  while officers conduct their search. If at any time it is
  determined that the person restrained in handcuffs is not
  dangerous, the handcuffs should be removed.

 

F. Consensual Entry: Officers may enter a dwelling based upon the
consent of a person who appears to have authority over the
premises without reasonable suspicion or probable cause,

NOTE: These provisions apply to Knock and Talk events

• i. Consent must be voluntary
• ii. When a residence is involved, the person granting consent must
  be told that they have the right to refuse consent.
• iii. Consent need not be in writing but written documentation will assist officers in proving that the consent was voluntary.
• iv. Officers may not enter a dwelling in a case where a co-occupant is present and objecting to the entry.
• v. The scope of a consensual entry and search rests with the
  consenting party who controls both how long the entry and
  search may last as well as what locations within the residence
  may be searched.
• vi. Officers should not rely on the consent of a juvenile under
  the age of 15.

G. Exigent Entry: An officer may enter a home based on emergency
circumstances when any of the following circumstances exist:

• i. Hot pursuit of a fleeing felon.
• ii. Imminent destruction of evidence for any jailable offense.
• iii. Need to prevent suspect's escape from a serious
  misdemeanor that is a jailable offense.
• iv. Risk of danger to police or others inside or outside the
  dwelling.
• v. Officers may enter a home without a warrant when they have
  an objectively reasonable basis for believing that an occupant
  is seriously injured or imminently threatened with such an
  injury.
• vi. Once exigency has ended, officers should secure the scene
  and obtain a search warrant.
• vii. The fact that an area is a crime scene does not create
  automatic exigency- There is no crime scene exception to
  the warrant requirement.
• viii. Emergency Searches: An officer who has reasonable
  cause to believe that premises or a vehicle contain:

 

• a. Individuals in imminent danger of death or serious bodily
  harm; or
• b. Things imminently likely to burn, explode, or otherwise
  cause death, serious bodily harm, or substantial
  destruction of property; or
• c. Things subject to seizure which will cause or be used to
  cause death or serious bodily harm if their seizure is
  delayed;
• d. May, without a search warrant, enter and search such
  premises and vehicles, and the persons therein, to the
  extent reasonably necessary for the prevention of such
  death, bodily harm, or destruction.

 

H. Dynamic Entry: Whenever entering a residence in a manner designed to anticipate a potential deadly force encounter, the specially
trained team should be utilized to ensure the safety of all
persons involved. This determination as to whether a dynamic
entry is necessary is done through the completion of a risk
assessment matrix.

• i. Due to the nature of executing this high-risk entry, extreme
  care must be utilized in order to ensure that only the proper
  residence is entered. When considering the use of a dynamic
  entry, the following precautions must be followed:

 

• a. A supervisor must be present and take responsibility for
  reviewing and approving the warrant as well as the
  affidavit prior to the execution of the warrant.
• b. If the warrant involves narcotics, ensure that a purchase
  has been made or contraband observed within a reasonable
  period preceding the execution of the warrant.
• c. If utilizing an informant for a narcotics purchase, an
  investigator must ensure that the informant has been
  observed at all possible times.
• d. The officer supervising the special team will conduct a
  drive-by of the location with the lead investigator using
  the legal description on the warrant to locate the
  residence to ensure that the residence to be entered is
  verified with the warrant. If any discrepancies exist or
  if the house cannot be located by the description on the
  warrant, the warrant shall not be served.
• e. Prior to execution of the warrant, all available data
  bases will be checked (telephone, electric, real estate
  etc.) to ensure that the residence matches the suspect of
  the investigation.
• f. A written operations plan will be prepared
  identifying the specific mission for the team,
  intelligence considered, a description of the
  targeted subjects and location, and the
  specific tasks assigned to each member of the
  entry team.
• g. The lead investigator will accompany the
  special team during the execution of the
  warrant and direct officers to the doorway of
  the residence to ensure that the correct
  residence is entered.
• h. Upon completion of the operation,
  photographs of all entryways into the building
  shall be taken to document both damage and
  lack of damage.

 

I. Warrantless Search by Law Enforcement Officer for a
Supervised Probationer or Parolee.

• i. A person who is placed on supervised probation or
  is released on parole is required to agree to a
  waiver as a condition of his or her supervised
  probation or parole that allows any certified law
  enforcement officer to conduct a warrantless search
  of his or her person, place of residence, or motor
  vehicle at any time, day or night, whenever
  requested by the certified law enforcement officer.
  A warrantless search that is based on a waiver shall
  be conducted in a reasonable manner (16-93-106).
• ii. Though Arkansas Law does not require an articulable
  suspicion that the person is committing or has
  committed a criminal offense, this department
  requires that an officer have some articulable law
  enforcement concern, however slight, prior to
  conducting such searches without the direct
  assistance of a parole or probation officer, or
  that the parolee/probationer be a party to an
  otherwise lawful stop based on reasonable suspicion
  or probable cause.
• iii. Examples of a law enforcement concern include but
  are not limited to: Anonymous tips/reports that
  would otherwise not be sufficient to conduct a
  search; parolee/probationer found in known crime
  areas or otherwise under suspicious circumstances
  less than reasonable suspicion for a terry stop;
  parolee/probationer is a party to a lawful traffic
  stop or other detention whereby a search would
  otherwise be unlawful.
• iv. Officers are prohibited from using this statute to
  harass.
• v. Prior to a 4th amendment seizure (detention or stop)
  and or search of a parolee/probationer based on the
  sole fact that the person is merely a
  parolee/probationer, a member of this department
  shall verify the status of the person believed to
  be on supervised probation or parole and that a
  waiver exists prior to conducting a seizure and or
  search by one of the following methods:

1. As part of a consensual contact, a person admits
to being on probation or parole, admits that a
waiver exists, and consents to search. Under this
scenario, no seizure has occurred and the Officer
is conducting a search under the consent to
search doctrine without having verified that a
waiver exists via logical means.

2. Officer determines person is on probation/ parole
via ACIC and confirms that a waiver is on file.

3. Officer determines person is on probation /parole
and that a waiver exists through personal contact
with the Departments of Correction or Community
Correction or by contacting a Community
Correction Officer prior to any warrantless
search being conducted.

• vi. The officer conducting the search must make a
  request to search the supervised probationer or
  parolee prior to search; however, obtaining consent
  to search is not required if it is determined
  through appropriate means that a waiver exists as
  a condition of release.
• vii. Authority granted under this statute does not
  preclude other restrictions that may be applicable
  under law including third party rights, co-occupants, etc.
  viii. In the event a co-occupant or other lawful third
  party prevents the search of a residence where a
  parolee or probationer resides, based on applicable
  law, the Officer will advise the third party that
  the parolee/probationer may be in violation of
  his/her parole based on their lawful objection, and
  the Officer will report the incident to
  Parole/Probation for their consideration of
  enforcement.
• ix. Officers will document all parole/probation
  searches or attempts to search in a manner approved
  by their department. The report should document the
  date, time, location, parolee/probationer searched,
  scope of the search, the law enforcement concern
  that led to the search or an otherwise lawful stop,
  and the result of any such search.
• x. In addition to typical enforcement that may occur,
  the discovery of any criminal violation will be
  immediately reported to the appropriate
  Parole/Probation Officer for further administrative
  consideration.