FERGUSON POLICE DEPARTMENT GENERAL ORDER TITLE: Search Warrants and Warrantless Searches GENERAL ORDERS: TOPIC: Policy and Procedure governing search warrants and warrantless searches DISTRIBUTION: ALL PERSONNEL ISSUE DATE: EFFECTIVE DATE: NUMBER OF PAGES: 11 CANCELLED PUBLICATIONS: INDEX: Consent to Search Form 003, Consent to Search Frisk or pat down Search Warrants Warrantless Searches Warrants, Search Bias-Free Policing I. Purpose The purpose of this policy is to establish procedures for obtaining, executing, reporting, and reviewing a search warrant and to ensure that officers document and supervisors review the circumstances that occurred before and during a warrantless search. II. Policy Statement It is the policy of the Ferguson Police Department (“FPD” or the “Department”) to conduct searches as part of a comprehensive strategy to prevent crime, consistent with the community’s priorities for enforcement. All searches will be conducted in a manner that conforms to the constitution of the United States and federal civil rights laws, and reflects the Department’s commitment to procedural fairness and justice and community- oriented policing. FPD officers will not conduct any search, of person or property, without probable cause and a warrant or an exception to the warrant requirement, including but not limited to a search incident to arrest or exigent circumstances. Officers will not use race, color, ethnicity, national origin, religion, gender, sexual orientation, disability, or other protected characteristics as a factor, to any extent or degree, in searching any person, except as part of an actual and credible description of a specific suspect in an ongoing criminal investigation. Officers must document all searches using specific, objective facts in accordance with the procedures set forth in this general order. III. Definitions Consent Search: a search conducted based on the consent or permission of the individual whose person or property is searched. Exigent Circumstances: emergencies in which a reasonable person would believe that imminent bodily harm to a person or persons or the destruction of evidence is likely. Field Investigation Report (FIR): documentation of non-custodial interviews and investigative stops and detentions. Frisk or pat down: an officer passing his or her hands over the outer clothing of a person in a search for weapons or contraband. Non-custodial Interview: an encounter during which an officer asks questions to investigate for a possible offense, and during which the person is free to leave and/or decline any of the officer’s requests at any point. Probable Cause: the facts and circumstances known to the officer at the time would justify a prudent person in believing the person committed or was committing an offense. Procedural Fairness and Justice: The process of building trust with members of the community by adopting and carrying out the following principles: treating community members with dignity and respect, giving individuals voice during encounters, being unbiased and transparent when making decisions, and communicating trustworthy motives. This includes the idea of fairness in the processes that resolve disputes and allocate resources, including the administration of justice and legal proceedings 1 Reasonable Suspicion: articulable facts that, within the totality of the circumstances, lead an officer to reasonably believe that the suspect has committed, is committing, or is about to commit a crime. Search Incident to Arrest (“SITA”): a warrantless search that is an exception to the general Fourth Amendment search warrant requirement. It is limited to the immediate areas in which the arrestee might obtain a weapon or evidentiary items. Search Warrants: documents that give police specific rights or powers such as the right to search something or somebody. Seizure: occurs when an officer’s words or actions convey to a reasonable person that he or she is not free to leave. Social Contact: a consensual encounter between a police officer and a civilian community member with the intent of engaging in casual, non-investigative conversation. Through social contacts and other community engagement activities, officers develop a deeper understanding of community perspectives and priorities. Social contacts are opportunities for officers to build trust, familiarity, and meaningful relationships with the communities they serve. IV. Principles A. Officers will not search any person or property without: 1. probable cause; and 2. a warrant or an exception to the warrant requirement, including but not limited to a search incident to arrest or exigent circumstances. B. Officers will not use race, color, ethnicity, national origin, religion, gender, sexual orientation, disability, or other protected characteristics as a factor, to any extent or degree, in searching any person, except as part of an actual and credible description of a specific suspect in an ongoing criminal investigation. C. Officers will not use or rely on information known to be materially false or incorrect in conducting any search or obtaining any search warrant. D. Officers will conduct searches with dignity and courtesy. E. Officers will explain to the person being searched the reason for the search and how the search will be conducted. F. Officers will conduct searches with due regard and respect for private property interests and in a manner that minimizes damage. Officers will leave property in a condition as close as reasonably possible to its pre-search condition. G. In order to minimize the need for forcible entry, and where doing so would not place officers at heightened risk; officers will attempt to obtain keys, combinations or access codes when a search of locked property is anticipated. H. When an officer is to search a person not of the same gender as the searching officer, the officer will make a reasonable effort to summon an officer of the same gender as the person to conduct the search. When it is not practicable to summon an officer of the same gender as the subject, the searching officer will: 1. Have another officer or a supervisor witness the search. 2. Not search areas of the body covered by tight-fitting clothing, sheer clothing or clothing that could not reasonably conceal a weapon. I. Officers will not frisk any person for the purpose of determining that person’s gender or to view or touch the person’s genitals. Where same-gender searches are required by law or Department policy, the officer will respect the gender identification expressed by the individual. Where the individual does not self- identify and the gender identity is not clear to a reasonable person or the officer is uncertain, the officer will take reasonable, non-invasive steps to determine the gender identity, such as asking the individual how the individual would like to be addressed. 2 J. Officers will activate their body-worn camera recorders (“BWVR”) during all searches, including any request for consent to conduct a search, vehicle searches, and all other searches, except where specifically articulated and approved privacy considerations require that a search not be recorded. See General Order X.X.X. Body Worn Video Recorders K. Officers must document all searches using specific, objective facts in accordance with the procedures set forth in this general order. V. Requirements and Procedures A. Warrantless Searches and Seizures 1. Searches and seizures generally must be made pursuant to a warrant. There are exceptions when searches and seizures may be made without a warrant. The officer bears the burden of documenting that an exception to the warrant requirement applies. 2. Warrantless searches and seizures are most often encountered and authorized incident to: a. searches made after valid consent has been obtained; b. pat down search/frisk c. a valid arrest, See General Order X.X.X Citations and Arrests; d. plain view seizures; e. exigent circumstances; f. inventory searches of seized vehicles and property. 3. Consent Search a. An officer will not seek consent to search unless he or she has a reasonable and articulable suspicion that the search will reveal evidence of an offense, or the officer has legal authority for the search that is independent of consent. b. FPD officers seeking consent for a search will affirmatively inform the individual of the right to refuse and to revoke consent at any time. i. The officer will call to the scene a second officer before seeking consent to search. ii. The officer will video record the notification of rights and the individual’s affirmative statement of consent or denial of consent on his or her BWVR equipment, except where specifically articulated and approved privacy considerations prevent such a recording, in which case the officer will obtain written consent on a Consent to Search Form FPD Form 003, which notifies the individual of those rights. See General Order X.X.X. Body Worn Video Recorders c. In the event that an owner gives consent to search a residence or business, no more than two officers will conduct the search unless approved by a supervisor. 4. Pat Down Searches/Frisks a. Not every investigatory stop or detention justifies conducting a pat-down search or frisk. These searches are justifiable and may be performed only to protect the safety of officers and others and may never be used as a pretext for obtaining evidence. b. In order to frisk or pat down any person, that person must first be lawfully stopped or detained pursuant to reasonable suspicion. See General Order X.X.X. Non-custodial Interviews, Investigatory Stops and Detentions. In addition, the officer must have articulable reasonable grounds to suspect the person is armed and dangerous. c. The fact that an investigative stop occurs in a high-crime area is not by itself sufficient to justify a pat down or frisk. 3 d. The pat down or frisk must be reasonably designed and limited to discover weapons or instruments that can be used to assault the officer. It is not a generalized search of the whole person.