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E.P.P. 039 LONGWOOD POLICE DEPARTMENT ENFORCEMENT POLICY & PROCEDURE NUMBER: EPP – 39 SUBJECT: SEARCH AND SEIZURE EFFECTIVE: NOVEMBER 1, 2001 REVISED: JULY 1, 2023 ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 1 of 17 I · PURPOSE This policy is established to provide guidelines for enforcement personnel so that searches and seizures comply with Constitutional requirements. II. SEARCHES OF PERSONS (DEFINITIONS): A. Frisk: Implies a cursory, or brief, search of a person for weapons large enough to be detected through clothing. This type of search may be conducted by the opposite sex of the person to be searched. B. Field search: A more detailed search of an arrested person in which all clothing and normally exposed areas of the body are searched and both evidence and weapons are removed. The officer may go inside the person’s clothing to remove objects which might be dangerous or have evidentiary value. If another officer is on the scene who is of the same sex as the subject to be searched, that officer should be requested to conduct the search. This type of search will be conducted whenever an arrest is made and the prisoner is to be transported and booked. C. Strip Search: Implies a thorough search of the prisoner and his/her clothing. Clothing is removed, body cavities are checked, and all clothing is carefully scrutinized. Longwood Police Department members are strictly prohibited from conducting strip searches. Strip searches will only be conducted by correctional facility personnel within the confines of the correctional facility and under the procedures set forth by the sheriff's corrections facility policy and Florida State Statute. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 2 of 17 III. SEARCH PROCEDURES (GENERAL) A. If possible, the person being searched will be placed of balance with feet and hands widely spread while inclined against a wall, vehicle, etc. B. If under arrest, the person should first be handcuffed. C. The officer should stand behind the person being searched and place one hand at the belt line or on the small of the person’s back. This will allow the officer to maintain some physical control of the individual, should any attempt be made to flee or attack the officer. D. Officers should watch for head or upper body movement that may proceed an attack or attempt to flee. E. Officers performing searches of persons should be cognizant of the hazards of sharp objects such as needles, razor blades, knives, etc. that may be concealed. IV. RECOMMENDED SAFETY PRACTICES A. Only one hand should be used to conduct the search. The other hand should be kept free to control the person. B. An officer should keep his/her eyes on the suspect’s head and shoulders in order to detect any sudden movement. C. An officer conducting a search should avoid walking between the person being searched and a “covering” officer. D. While searching a person, an officer should never turn his/her back to the person. E. While searching, an officer must grab and squeeze the clothing of a suspect, not simply “pat it.” Items such as flat handled knives, razor blades, and the like will not be discovered by merely patting the body. F. Individuals should not be searched from the front. G. All weapons, including articles that could be utilized as weapons, will be removed from the person. H. Whenever an officer receives control of an arrestee from another officer, it will be the responsibility of the receiving officer to again search the prisoner to satisfy himself that any danger is minimized. Assumptions should never be made. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 3 of 17 V. SEARCH WARRANT A. Generally, a search warrant must be issued by a court prior to any search of any person or place unless other circumstances are present as described in this directive. B. A search warrant must be supported by enough probable cause to support the applicant officer’s belief that the named items sought to be seized will be found at the location to be searched. 1. Business: A search warrant may be obtained to search a business if there is probable cause to believe that: a. The property has been stolen or embezzled in violation of law; b. When any property has been used: 1. As a means to commit any crime; 2. In connection with gambling, gambling implements and appliances; or, 3. In violation of Chapter 847.011, Florida State Statutes, or other laws in reference to obscene prints and literature; c. When any property constitutes evidence relevant to proving that a felony has been committed; d. When any property is being held or possessed: 1. In violation of any of the laws prohibiting the manufacture, sale, and transportation of intoxicating liquors; 2. In violation of the fish and game laws; or, 3. In violation of the laws relative to food and drug; a. When the laws in relation to cruelty to animals have been or are violated. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 4 of 17 NOTE: In addition, papers or documents used as a means of or in aid of the commission of any offense against the laws of the state may be included. 2. Residential: The term “private dwelling” includes the room or rooms used and occupied, not transiently but solely as a residence, in an apartment house, hotel, boardinghouse, or lodging house. No warrant shall be issued for the search of any private dwelling under any of the conditions mentioned in this chapter except on sworn proof (affidavit) of some creditable witness that he/she has reason to believe that one of the following conditions exists. A search warrant may be obtained to search a private dwelling if there is probable cause to believe that the dwelling: a. Is being used for the unlawful sale, possession, or manufacture of intoxicating liquor; b. Stolen or embezzled property is contained in the dwelling; c. The dwelling is being used for gambling; d. The dwelling is being used to perpetrate frauds and swindles; e. The law relating to narcotics or drug abuse is being violated within the dwelling; f. A weapon, instrumentality, or means by which a felony has been committed, or evidence relevant to proving said felony has been committed, is contained within the dwelling; g. One or more of the following misdemeanor child abuse offenses is being committed within the dwelling: 1. Interference with custody, in violation of Chapter 787.03, Florida State Statutes; 2. Commission of an unnatural and lascivious act with a child, in violation of Chapter 800.02, Florida State Statutes; ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 5 of 17 3. Exposure of sexual organs to a child, in violation of Chapter 800.03, Florida State Statutes. h. The dwelling is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boardinghouse, or lodging house; i. The dwelling is being used for the unlawful sale, possession, or purchase of wildlife, saltwater products, or freshwater fish being unlawfully kept therein; or, j. The laws in relation to cruelty to animals have been or are being violated within the dwelling, except that no search pursuant to such a warrant shall be made in any private dwelling after sunset and before sunrise unless specially authorized by the judge issuing the warrant. k. Property relating to the violation of the above laws may be taken (if a warrant has been issued) from any private dwelling in which the property is concealed or from the possession of any person within the dwelling by whom the property has been used in the commission of the offense or from any person within the dwelling whose possession it may be. l. If, during a search pursuant to a warrant issued under this section, a child is discovered and appears to be in imminent danger, the officer conducting the search may remove the child from the private dwelling and take the child into protective custody in accordance with Chapter 415.506, Florida State Statutes. VI. DRAFTING A SEARCH WARRANT: A. All search warrants will be based on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or thing to be seized. 1. The test for determining the sufficiency of the description of the place to be searched is divided into two components: a. Whether the place to be searched is described with sufficient particularity as to enable the executing officers to locate and identify it with reasonable effort. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 6 of 17 b. Whether there is reasonable probability that some other location may be mistakenly searched. 2. The test for determining the sufficiency of the description of person or thing to be seized are categorized as specific or general. a. Specifically described items include serialized property, specific type of controlled substance, and items described in detail. b. General descriptions are permissible only in special contexts in which there is substantial evidence to support the belief that the class of contraband is at the location, and in practical terms the goods to be described cannot be precisely described. Two tests determine if this principle is satisfied: 1 The degree to which the evidence presented to the judge establishes reason to believe that a large collection of similar contraband or goods is present at the location to be searched. 2 The extent to which, in view of the possibilities, the warrant distinguishes, or provides the executing officers with criteria for distinguishing the contraband or goods from the rest of the individual's possessions. B. There are, typically, four parts to a search warrant "package": The Affidavit for Search Warrant Form, the Search Warrant Form, the Inventory/Receipt Form, and the Court Return Form. 1. Affidavit for Search Warrant Form: a. The affidavit supporting a search warrant need only establish the probability of criminal activity and presence of evidence at a specific location, not proof beyond a reasonable doubt. However, probable cause cannot be made out by affidavits which are purely conclusory, stating only the affiant's or an informant's beliefs. Recital of some of the underlying circumstances in the affidavit is essential. b. The affidavit for a search warrant must present timely information, and the warrant must be promptly executed. Whether information is too stale to establish probable cause depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized. When criminal activity is on-going it is unlikely that the passage of time ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 7 of 17 will dissipate probable cause. Recent or new information corroborates otherwise stale information. Probable cause may be found sufficient to establish grounds for a search warrant. c. Pre-formatted Affidavit for Search Warrant Forms are available from the Criminal Investigations Division or from C.C.I.B. These formats have been approved by the State Attorney's Office. d. The form will be completed, outlining the probable cause and listing the course of events in chronological order. e. The form will contain a physical description of the person, place, vehicle, or thing to be searched and a description of the thing to be seized. f. In the event additional affidavits or exhibits are required, they will be numbered as exhibits, physically attached and incorporated into the body of the Affidavit for Search Warrant Form. g. The information contained in the Affidavit for Search Warrant Form will be truthful, factual, and on its own merits establish probable cause sufficient enough for the issuance of a search warrant. 2. Search Warrant Form: a. Pre-formatted Search Warrant Forms are available from the Criminal Investigations Division or from C.C.I.B. These forms have been approved by the State Attorney's Office. b. The search warrant will be completed, specifically describing the person, place, or thing to be searched. When searching a place, the description of the place will be detailed, and the prescribed route starting from a known point will be included. For example: "Beginning at the intersection of State Road 600 and Airport Boulevard, Seminole County, Florida, proceed south on State Road 600 for approximately 0.6 tenths of a mile, until reaching Lake Mary Boulevard. Turn (right) west on Lake Mary Boulevard and proceed in a westerly direction for approximately 0.1 tenth of a mile until reaching on the left, or south side of the roadway, a single family cinder block structure, white in color and having black trim. The number 230 appears on the front of the residence in three-inch numerals located above the garage door. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 8 of 17 Another description being 230 Lake Mary Boulevard, Sanford, Seminole County, Florida." c. The person's name, if known, who has control over the specific thing to be searched will be included on the face of the warrant. d. Items to be seized will be accurately described on the Search Warrant Form. e. The Search Warrant Form will contain the names of the executing officer and the name of the Longwood Police Department. f. A search warrant may not be executed at night or on a Sunday unless specifically authorized by the judge. 3. Inventory/Receipt Form: This form is used to record items taken during the search, and provides a receipt for the defendant, the issuing judge, and the executing officer (see Chapter VI). 4. Court Return Form: This form is returned to the issuing judge as a record of the search (see Chapter VI). C. Review and Approval: Before presentation to a judge, a search warrant and supporting affidavit must be reviewed and approved by the applicant officer's supervisor, and, if available, a felony division Assistant State Attorney. VII. PROCEDURES FOR EXECUTION A. General: 1. Persons on the premises and those that arrive on the premises during the course of the search may be detained but may not be frisked for weapons unless there is individualized suspicion to believe they are armed with a dangerous weapon. 2. Only those areas likely to contain the items sought may be searched. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 9 of 17 3. Vehicles located on the premises or curtilage of the premises may be searched only if authorized by the warrant. B. Knock and Announce: No forced or non-forced entry may be made into the premises to be searched unless: 1. The officer knocks at the door or otherwise makes his/her presence known and, 2. The officer announces his authority (i.e. “Police Officer with the Longwood Police Department”) and, 3. The officer announces his/her purpose (i.e. to execute a search warrant) and, 4. The occupant fails to respond and allow the officer entry after a reasonable time. NOTE: These procedures must be followed prior to forcefully entering the premises and also before any non-forced entry is made. C. Exception to Knock and Announce Requirements: 1. A search warrant authorizing a “no knock entrance” is no longer valid. In order to make an entry into the premises without following the procedure outlined in Paragraph B above there must be an exception existing at the time of entry, based on particular circumstances which lead the Officer to reasonably believe that: a. The person inside already knows of the Officer’s authority and purpose; or, b. Persons within are in immediate peril of bodily harm; or, c. The Officer’s peril would increase if they were to announce themselves and their purpose; or, d. Announcing their presence would lead to an escape by any persons within or the immediate destruction of evidence. NOTE: A generalized belief that a small quantity of disposable contraband could be disposed of through standard plumbing is not sufficient to allow this type of entry. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 10 of 17 D. Upon/After Entry into Premises: 1. The warrant should be read aloud to the occupants and a copy of the warrant delivered to the person named in the warrant or left at the residence if unoccupied. A receipt of items seized must also be left with the resident named or at the residence if unoccupied. 2. Personnel assigned to security duty will be responsible for the safety of the search team by watching the occupants during the course of the search. Security personnel are also responsible for persons who arrive at the location while the search is being conducted . 3. The search team is responsible for conducting an organized search for the particular items described in the warrant. The items, once discovered, are not to be removed until photographed in place, cataloged, and marked with the case number and date. 4 Personnel responsible for evidence will ensure its proper collection, marking, packaging, and seizure when removed from the person, place, or thing. All items of contraband or evidence will be submitted to an evidence custodian or secured into evidence lockers. E. Inventory Receipt and Court Return Forms: 1. The inventory and return portions of a warrant package is provided for itemizing every article of contraband or evidence removed from the person, place, or thing searched. Each item must be accurately described on the form and listed by a designated number. 2. The inventory and return forms will be completed in triplicate. This will provide a copy for the defendant, the issuing judge, and the executing officer. 3. The inventory and return forms will be reviewed and signed by the officer who executed the warrant. The inventory and return forms shall be notarized before being returned to the office of the issuing judge. 4. The original search warrant and a copy of the inventory and return forms must be returned to the office of the issuing judge as soon as possible, but no longer than ten working days. VIII. EXCEPTIONS TO THE WARRANT REQUIREMENT A. Terry Stop and Frisk Search (Chapter 901.151, Florida State Statutes): ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 11 of 17 1. Basis for Search: A person legally detained on a reasonable suspicion that he/she has committed, is committing, or is about to commit a crime may be subject to a limited search for weapons if an officer has an articulable reason to believe or fear that the suspect is armed with a dangerous weapon. 2. Extent of Search: a. The officer may conduct a “pat down” of the outer clothing of the suspect for weapons only. b. If an object is felt that could reasonably be a weapon, the officer may reach past/into the outer clothing to seize it. c. Items which do not appear to be weapons may not be seized unless it is immediately apparent from the “pat down”, without squeezing, prodding or manipulating, that the item felt is contraband. B. Search Incident to Arrest: 1. Items discovered during a search incident to arrest may be seized. When a lawful arrest is made, an officer may search the person arrested and the area within the arrestee’s immediate control for the purpose of: a. Protecting the officer from attack; b. Preventing the person from escape; c. Discovering the fruits of a crime; or, d. Prevent the destruction of evidence. 2. A search incident to an arrest may be conducted when the arrest is a: a. Felony; b. Misdemeanor; c. Criminal traffic or criminal county ordinance; d. Criminal offense where a Notice to Appear is to be issued instead of an actual physical arrest is no longer sufficient cause for a Search Incidental to Arrest. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 12 of 17 3. A search incident to arrest must be conducted at the same time as the arrest or as soon as practical thereafter. 4. Scope of Search: When conducting a search incident to arrest, an officer may: a. Search the arrestee completely (with the exception of a strip search) and, b. Search the articles in the arrestee’s control or reach (wallet, purse, vehicle). 5. Extent of a search incident to an arrest of the occupant of a vehicle: a. If the arrestee was a recent occupant of a vehicle, the officer may search the vehicle if it is not locked. The search may include: 1. The passenger compartment and containers therein and, 2. The glove box. NOTE: A search conducted at the same time of the arrest of an occupant of a vehicle may extend only to those areas in control of the occupant (for example, the front seat passenger vs. the rear seat passenger. The rear seat passenger would not necessarily have control over the vehicle’s glove box). NOTE: The search area does not include the trunk. b. An officer may search the vehicle at the same time as the arrest. C. Moving Vehicle Exception to Search Warrant Requirement: 1. An officer may stop and search a moving vehicle if there is probable cause to believe the vehicle contains contraband. The warrant less search is confined to looking into those areas where the suspected contraband might be reasonably located. 2. If the officer has probable cause to believe contraband is located in a specific container within the car they may search that container without a warrant, but may not search the entire car (If an arrest of a vehicle’s ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 13 of 17 occupant is made as a result, then a search of the car itself may be justified under the exception of search incident to arrest). 3. The officer may remove the vehicle to the Police Station and search it there. Reasons for a search at the Police Station may include: a. The location or position of the vehicle at the scene of the stop endangers the flow of traffic or creates a safety hazard for the officer. b. Weather conditions would impede or hamper an effective search. c. The search requires the use of special equipment not available at the roadside stop. 4. If an officer has probable cause to believe a vehicle contains contraband, and there is time to obtain a warrant, then a warrant must be obtained. An officer may not wait and watch the vehicle for days and then decide to stop the vehicle once the driver moves the car. D. Consent Search: 1. A person may give his/her consent to search. Consent must be free, voluntary and knowingly given by the person. 2. A judge will look at many factors in determining whether the consent was valid. For example, factors will include: a. The age and maturity of the person giving the consent; b. Whether the person gave a written waiver; c. Whether alcohol or drugs may have impaired their decision in knowingly giving consent; d. The person’s mental or educational level; e. Whether any language barriers were present and if the request to consent was given clearly; f. Whether any express or implied promises or threats were made by the officer; and/or, ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 14 of 17 g. Whether the person understood that he/she could refuse to consent to the search. 3. An officer should obtain written consent whenever possible. If the consent is obtained verbally, it should be obtained in the presence of two officers and the person should be orally advised of his/her right to refuse. 4. Once the consent to search is obtained, the person so consenting may revoke his/her consent at any time and the search must stop. 5. Only persons with a lawful right to exercise use, control or ownership of the thing or place to be searched may give consent. For example: a. A landlord may not give consent to search a tenant’ s property. b. When premises are shared by two or more people, any one can give consent to search common or jointly held areas. 1. One occupant may not give consent to search a room or possession used exclusively by another; 2. If the arrestee is present and objecting to the search and the other occupant is consenting, the search may not be conducted. c. Parents may give consent for officers to search their child’s room. d. A child may not give consent for an officer to search a parent’s room, but may give consent to search common areas of the home if the child has the maturity, intelligence, etc. to make the decision. Officers must make sufficient inquiries to determine this in order to support a reasonable conclusion that the child can give consent. A mere assumption that they can give consent will normally not be enough to support the consent to search. e. A person who has custody/control of a moving vehicle, regardless of whether they are the owner, may give consent to search the vehicle. f. An employee may not give consent to search employer’s premises unless it is within employee’s authority to give such consent. E. Plain View: ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 15 of 17 1. The plain view doctrine allows an officer to seize contraband he/she observes in plain view from a location he/she is legally permitted to be. 2. Examples of plain view situations include: a. If a search warrant is being executed for seizure of a stolen television and the officer observes cocaine on a table, the cocaine may be seized; b. If a vehicle is being inventoried for its contents and in the course of conducting the inventory contraband is observed, the contraband may be seized; c. If an officer is executing an arrest warrant and while conducting a cursory search for persons at the premises observes contraband on a dresser in a bedroom, the contraband may be seized; d. If an officer, while standing in a parking lot, observes marijuana plants growing from a residential balcony, an entry and seizure will not be upheld under the theory of plain view. Plain view doctrine does not permit entry into a residence without a warrant. IX. INVENTORY SEARCHES OF SEIZED VEHICLES OR OTHER PROPERTY A. Vehicle inventories are not designed or intended to be used to conduct searches. However, if during a vehicle’s inventory, items of contraband are discovered inadvertently, they will be seized and submitted into evidence pending the filing of appropriate criminal charge(s). B. The inventory shall include all areas of the vehicle including, but not limited to: 1. Inside compartments such as the glove box, under the seats, ashtray, and all containers therein; 2. The trunk area and containers therein; 3. All exterior containers (boxes, truck beds, etc.); and, 4. The engine compartment. C. If possible, the inventory will be conducted in the presence of the operator or owner. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 16 of 17 D. If money, jewelry or other precious items are being inventoried; If possible the money should be inventoried in the presence of the suspect. The presence of an assisting officer should be requested to either assist or witness the inventory. E. Vehicles will be towed under the following circumstances: 1. Towing a vehicle that poses a traffic hazard; 2. The vehicle has been abandoned on the road right of way over a period of seventy-two hours and was properly marked; 3. The vehicle has been vandalized/stripped; 4. The vehicle had been reported as stolen and has now been recovered; and, 5. Incidental to the lawful arrest of the vehicle operator and/or occupant. F. Any compartments or containers within the vehicle, locked or unlocked, will be opened and inventoried. NOTE: Locked containers should not be forced open during an inventory but shall be logged on the inventory form. However, if a key or combination is available, the container will be opened and inventoried. NOTE: Officers will be aware of any extra precautions or conditions described for the towing of vehicles in the Enforcement Policy and Procedure “Parking Enforcement.” X. EXIGENT (URGENT, CRITICAL, EMERGENCY) CIRCUMSTANCES A. Officer may enter premises including residential facilities where necessary to protect the safety of persons under imminent threat. For example: a burning building, a call for assistance involving a suicide threat, or other situation involving death or great bodily harm. B. In these types of situations, it may become necessary to secure a warrant for a continued search. For example: an officer may, without a warrant, enter a residence to affect the rescue of a suicidal person or a person in need of medical assistance. In these situations, an officer may search the residence in an attempt to locate medicine or the name of the person’s physician but must not search any further than is necessary to accomplish this task. A search for medicine might include a search of the person’s clothing or bathroom medicine or kitchen cabinets, but would not include searching those areas where medicine would not be expected to be found under reasonable circumstances. ENFORCEMENT POLICY AND PROCEDURE SEARCH AND SEIZURE EPP – 39 Page 17 of 17 C. Similarly, in a death investigation, initial entry may be obtained without a warrant (even if consent is not given). If, however, it appears that a death scene is the scene of a homicide and the property belongs to the suspect, a warrant should be obtained once the initial investigative entry is completed.