507 – Search Procedures
I. Policy
All arrests and searches, with or without a warrant, will be based on probable cause or will fall under a legal exception such as a “stop and frisk,” consent, or exigent circumstance.
II. Procedure
A. Stop and Frisk Search:
“Stop and frisk” refers to the warrantless stop of a person who may have committed a crime, may be committing a crime, may be about to commit a crime, or whose curious or unusual conduct would naturally trigger a police inquiry. A frisk of the person can be done only with reasonable suspicion (less than probable cause) that the person may be armed, and the search is for the peace officer’s protection during an investigative detention.
1. Suspicious activity alone that permits a stop does not always allow a frisk. The deputy must be able to articulate reasonable suspicion to justify stopping the person (a detention) and then additional reasonable suspicion to justify frisking the person (a search). There must be specific facts that cause the deputy to fear a person may be armed and dangerous to justify the frisk.
2. Deputies may conduct a limited frisk or “pat-down” of the outer clothing of the suspected person for the purpose of discovering weapons which might be used to assault him or her. The sole purpose of this frisk is to protect the deputy from harm.
3. If reasonable suspicion exists, the deputy may frisk or “pat down” the person for weapons and shall do so immediately upon initial contact. This search can include a search of any items the person may be carrying where a weapon may be located.
B. Search Incident to Arrest:
1. Warrantless searches incidental to a lawful arrest are valid:
a. To seize weapons or other articles which, by their design or intended design, may be used to harm or injure the deputy;
b. To seize the means the suspect might use to effect his or her escape; or
c. To prevent destruction of fruits or instruments of the crime, or destruction of evidence related to the crime, for which the arrest was made.
2. Within Reach:
Search beyond the person for items listed in subsection B (1) above must be limited to those areas which remain within the reach of the arrestee.
a. Reach is not confined to arm’s length but includes the areas reachable by the person if he or she made a lunge or quick move to gain possession of a weapon or of destructible evidence.
b. If the person arrested needs to move about after his or her arrest to put on clothing or assemble belongings, those areas to which he or she continues to have access, and the clothing to be worn, may also be searched for weapons or destructible evidence.
This movement must be a result of the arrestee’s desire to do so. It cannot be directed or requested by the deputy.
3. Search of Premises Incident to Arrest:
Evidence obtained from within premises at the time of arrest is admissible in court if certain circumstances exist:
a. If a deputy observes contraband or evidence in plain view during the arrest of a person inside premises, or finds something in the limited search incident to arrest, the evidence is admissible in court. The evidence may be seized, and probable cause exists to obtain a search warrant for the remainder of the premises.
b. Special circumstances exist which would make it impossible to safeguard the premises while a search warrant was being obtained after the arrest.
i. If a deputy is outside premises and has probable cause to believe that evidence is inside, and has probable cause that it is being destroyed, he or she can enter and secure the evidence. However, a search warrant or consent to search must then be obtained.
ii. In circumstances where the deputy intentionally “created” the circumstances that caused the occupants of the premises to begin destroying the evidence, the warrantless entry would be improper and render any evidence obtained inadmissible.
For example: A deputy goes to a drug suspect’s home without a warrant, yells for the persons inside to open the door, and then listens for flushing toilets. Forced entry without a warrant would not be permitted because the deputy created the circumstances.
4. When a deputy makes an arrest, he or she will search the suspect and any areas within the suspect’s immediate control or areas within which he or she might gain possession of a weapon or destroy evidence. A search incident to arrest should be made immediately after taking the suspect into custody.
a. A search must be thorough and should not be discontinued when one weapon is found. There may be more than one.
b. A deputy of the same sex as the prisoner will conduct the search when practical.
i. If this is not possible, the prisoner will be handcuffed with hands behind his or her back, and a limited “pat-down” search will be conducted as needed to ensure officer safety and integrity of evidence.
ii. If prisoners have purses, knapsacks, or other similar articles used to carry items, they will be taken from the prisoner when arrested.
c. Deputies receiving custody of a prisoner from another deputy, or peace officer from another agency, will search the prisoner before placing him or her in a police vehicle.
C. Consent to Search (Without a Warrant):
1. If the person against whom the search is directed consents to the search of his or her person, a search may be made, and any fruits of a crime, instrumentalities of a crime, or contraband articles may be seized.
2. A suspect should be advised of his or her rights prior to any search of premises under the control of the suspect by using the appropriate HCSO “consent to search” forms.
Courts are sometimes reluctant to find that consent was in fact voluntary when given by a person in custody who might not be fully aware of his or her constitutional right to refuse permission for a search.
3. A search may be directed against a defendant’s community property if consent is obtained by a person who jointly occupies the premises with the defendant if that person has an equal right to the use and possession of the premises. However, if the defendant, or anyone with standing, objects to the search, a warrant must be obtained prior to the search.
a. The person giving consent must be in control of the premises to be searched.
For example, a roommate in a two-bedroom apartment can give consent to search his or her bedroom and the common areas of the apartment but cannot consent for the search of the bedroom of the other roommate.
b. Equal right can usually be inferred when the person has a property right or other connection with the premises or with the defendant which establishes that they are entitled to bring guests into the premises. This includes a spouse.
c. While it is permissible to conduct searches under such circumstances, it is unwise as a matter of general practice to rely upon the arrested person giving consent at the time of his or her arrest. If possible, a search warrant should be obtained in advance of the arrest.
4. Any consent to search must be voluntary, without fear, threats, or promises.
5. Consent may be withdrawn at any time, and the search must be terminated if this occurs. If contraband is found during the course of a consensual search and consent is then withdrawn, the deputy must stop the search and obtain a search warrant based on the probable cause established with the found contraband.
6. When a consent search will be conducted, the deputy will complete the HCSO “consent to search” form which must be signed by the person granting permission.
D. Searches – Probable Cause:
Under the following circumstances, deputies will have probable cause to search a vehicle or person but are not required to obtain a search warrant:
1. Movable Vehicle Exception:
Automobiles and other conveyances may be completely searched without a search warrant only if there is probable cause to believe that the vehicle contains articles able to be seized.
a. If the vehicle has no connection with the offense, the search may be only within that area immediately accessible to the arrestee.
b. If probable cause exists to search a vehicle that was in a mobile condition when it came into the custody of a deputy, a warrantless search may extend anywhere in the vehicle including closed containers in which the items being searched for may be found.
c. If probable cause exists to search a container which is in a vehicle, a search warrant is not necessary to search the container, even though there is no probable cause to search the entire vehicle.
d. If probable cause exists to search a vehicle, that search may take place at the location where the vehicle is seized, or the vehicle may be transported to another location to be searched (for safety, lighting, equipment concerns, etc.).
Prior to transferring a vehicle to another location, an inventory of the vehicle will be conducted and documented to establish a chain of custody.
e. Although probable cause for a warrantless search may exist, it may be advisable to obtain a search warrant if a long delay in conducting the search occurs.
2. Exigent Circumstances:
A peace officer may enter premises without a warrant or consent under exigent circumstances which have not been created by the peace officer.
To search for persons, a peace officer may enter premises without a warrant in the following situations:
a. To arrest a fleeing suspect in hot pursuit;
b. To conduct a protective sweep; or
c. To look for a person who may be ill, injured, or dead.
E. Crime Scene Search:
Crime scenes which may be owned or possessed by a suspect will not be searched after the exigency is over. The premises will be secured, and a search warrant or written consent to search will be obtained.
F. Vehicle Inventory:
Deputies will conduct an inventory of the contents of all vehicles or property lawfully in their custody in order to protect the property of the suspect or owner from theft and to protect the HCSO from claims of theft. This includes the contents of an arrested driver’s vehicle before either towing or release to another person.
The inventory will include the contents of closed, unlocked containers. The results of an inventory will be documented on the tow slip or in the narrative section of the incident report.
1. An inventory taken solely to protect the arrested driver’s possessions is completely non-exploratory and is not a search. This procedure for safekeeping purposes can best be justified if the peace officer has little or no reason to believe that evidence is in the vehicle.
Closed containers, whose contents deputies are unable to determine from examining the container’s exterior, will be opened for the purposes of an inventory if they are not locked.
2. Locked containers found within a vehicle during the course of an inventory may have the contents inventoried with permission from the owner or operator.
If the owner or operator denies permission to an inventory of the contents of a locked container found in the vehicle, the deputy will review the facts and circumstances with the Harris County District Attorney’s Office and obtain a search warrant if probable cause is established. Otherwise, a locked container will be documented and described on the tow slip or in the narrative section of the incident report and designated as a “locked unit.”
G. Strip-Search Conducted During Investigative Detention:
1. During an investigative detention, a deputy SHALL NOT conduct any type of strip-search without first obtaining a search warrant. Refer to Texas Code of Criminal Procedure (CCP), Article 18.24, “Body Cavity Search During Traffic Stop.”
2. If a deputy believes a detained person may have contraband concealed on or in his or her body that is not detectable through a frisk search, the deputy shall:
a. Contact an on-duty supervisor, and
b. Coordinate the obtaining of a search warrant pursuant to Texas CCP, Article 18.24, and
c. If a search warrant is obtained, the strip-search must be conducted in a private, sanitary place in the privacy of an appropriate facility.
d. Suspects will be strip-searched only in the presence of deputies or detention officers of the same sex.
e. A sufficient number of deputies or supervisors may be present during the search to ensure the safety of all persons involved in the search.
f. If a strip-search is required, it shall be reported and documented in a HCSO offense report.
3. Procedures for the strip-search of prisoners charged with an offense and incarcerated in a HCSO facility will be established by the Criminal Justice Command.
4. Juveniles are subject to the same laws pertaining to arrest, search, and seizure as are adults, (HCSO Department Policy #410 – Children and the Sheriff’s Office) and if probable cause dictates may be strip-searched as may be required.
H. Body Cavity Search:
“Body cavity search” refers to an inspection that is conducted of a person’s anal or vaginal cavity in any manner, including by visual inspection, digital probing, X-ray, enema, or colonoscopy.
The physical intrusion to a body cavity will be conducted based on probable cause only by virtue of a search warrant pursuant to Texas CCP, Article 18.24.
1. If a deputy believes a detained person may have contraband concealed in his or her body, the deputy shall:
a. Contact an on-duty supervisor, and
b. Coordinate the obtaining of a search warrant pursuant to Texas CCP, Article 18.24, and
c. If a search warrant is obtained, the body cavity search will be conducted only by authorized medical personnel at an outside contract hospital facility.
d. If a body cavity search is required, it shall be documented in a HCSO offense report.
2. Procedures for the body cavity search of prisoners charged with an offense and incarcerated in a HCSO facility will be established by the Criminal Justice Command.
3. Juveniles are subject to the same laws pertaining to arrest, search, and seizure as are adults, (HCSO Department Policy #410 – Children and the Sheriff’s Office) and if probable cause dictates, a body cavity search may be requested as may be deemed necessary.
I. Clandestine Laboratory Search:
A clandestine laboratory search is a search, either by consent or pursuant to a warrant, resulting in the discovery of a clandestine laboratory. Deputies should recognize that there is a great risk of explosion or exposure to toxic substances upon discovery of any such lab.
Often, suspects attempt to secure the labs by manufacture and placement of injurious devices in and around the lab’s vicinity. These devices may be activated or detonated by any number of methods. Deputies are cautioned to NEVER turn light switches on or off, disturb any containers, open any windows or doors other than those through which entrance was gained, or touch or remove any items unless directed to do so by certified laboratory personnel.
1. Consent Search:
a. Prior to attempting a consent search on a suspected clandestine laboratory, DEA / HIDTA will be contacted to ensure that certified laboratory personnel are available in the event that a laboratory is discovered.
If certified laboratory personnel are not available, the consent will not be attempted.
b. Upon discovery of any evidence of a clandestine laboratory, deputies shall:
i. Evacuate the premises, removing all personnel, suspects, and witnesses from the property;
ii. Leave doors open to start to ventilate the premises;
iii. Contact DEA / HIDTA and request that certified laboratory personnel respond to the scene;
Certified laboratory personnel responsibilities will be the same as outlined for search warrant execution.
iv. Evacuate surrounding premises if the laboratory is operating and is large enough to present a hazard; and
v. Remain upwind of the site.
2. Search Warrant:
a. Prior to serving a search warrant, deputies will contact DEA / HIDTA and request that certified lab personnel are present when the warrant is served.
b. Certified lab personnel will determine if any other agencies, such as the fire department, emergency medical services (EMS), or hazardous materials (HazMat) units should respond.
c. Certified lab personnel will determine areas that require evacuation or decontamination.
d. Certified lab personnel will determine what personnel, suspects, or witnesses need decontamination.
3. Suspects:
a. Suspects may be contaminated from the toxic chemicals. Deputies should limit contact with suspects and use rubber gloves whenever possible.
b. Suspects should be secured, but not in a patrol car if possible. This is to avoid contamination of the patrol vehicle.
4. Evidence:
Evidence will only be collected by personnel trained to do so. This can be certified lab personnel, personnel from the Harris County Medical Examiner’s Office, or others.
5. Clean-up:
a. Certified lab personnel will coordinate clean-up of the laboratory.
b. All toxic waste will be disposed of in accordance with state and federal laws.
Revision
This policy has been revised on the below listed dates:
April 21, 2009
November 10, 2014
October 7, 2015
October 31, 2018