appendix d provisions for warrantless searches checklist

7/30/2019 APPENDIX D Provisions for Warrantless Searches Checklist

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Dyer, Keith3/27/2013For Educational Use Only

APPENDIX D. Provisions for Warrantless Searches: Checklist, Oh. Arrest, Search &...

2013 Thomson Reuters. No claim to original U.S. Government Works. 1


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Oh. Arrest, Search & Seizure Appendix D (2012)

Baldwins Ohio Handbook Series Ohio Arrest, Search and SeizureDatabase updated August 2012

Lewis R. Katz

Appendices

APPENDIX D. Provisions for Warrantless Searches: Checklist

SEARCH INCIDENT TO ARREST

0 (A) In general

1 (1) Warrantless search permissible if incident to valid arrest.

2

3 (2) Legality of arrest4 (a) Search must be based on valid arrest supported by probable cause.

56 (b) Probable cause may not be based on evidence found in search.7

8 (c) Arrest must not be mere pretext for search.910 (d) Arrest must occur before search; search may precede arrest if arrest immediately follows and officer had

probable cause for arrest independent of results of search.

1112 (B) Scope of searchin general

13 (1) Search may be for weapons or evidence.1415 (2) Complete search of arrestee may be made, as long as arrestee taken into custody.16

17 (3) Area and possessions within arrestees immediate control may be searched.1819 (4) Delayed search of arrestee and effects associated with person permitted.

2021 (C) Scope of searcharrestees residence or place of business

22 (1) Area within arrestees immediate control may be searched.

23 (a) Area of control may expand or contract during arrest procedure, such as where:

24 (i) Necessary for arrestee to go into another room to dress, thus allowing expanded search; or2526 (ii) Arrestee is handcuffed, limiting area of control and thus scope of search.

2728 (b) Arrestee may not be moved around merely to expand area that may be searched.29

30 (2) Protective sweep of area immediately adjacent to room where arrest takes place (i.e. closet, hallway)permissible without cause.

31

32 (3) Officers may make protective sweep of entire residence where they have reasonable, factually supported belief


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that substantial danger to officers present, such as presence of accomplice of arrestee on premises. Not to be a

search for evidence and should be limited to cursory inspection of places where person may be found and last only

so long as time needed to make arrest.

3334 (D) Scope of searchautomobile

35

36 Passenger compartment, plus all containers in compartment may be searched on arrest of occupant of automobile. But, ifoffense is traffic offense or non-violent offense and suspect is out of car and secured, search of closed containers

impermissible absent probable cause to believe evidence or weapons present in container or valid inventory search

conducted.

3738 (E) Scope of searchpackage, container, purse, briefcase, luggage

39 (1) Immediate search of items in arrestees hands usually upheld, but no clear-cut rule on this.4041 (2) Search of arrestees wallet or purse generally upheld.

42

43 (3) Validity of search of items such as luggage or briefcase depends on circumstances, such as whether item was inarea of arrestees control, whether item was locked, etc.

4445 (4) If probable cause focused on container prior to its being placed in automobile, only container may be searched,

not entire vehicle.

4647 (5) Delayed warrantless search at stationhouse generally not permissible except as in (E)(6).48

49 (6) Inventory search of containers as part of routine stationhouse booking procedure permissible.

50 (a) Written, standardized policy and procedures must be established and uniformly applied.5152 (b) Inventory procedure may not be mere pretext for investigative search. Impoundment must be lawful and

serve some legitimate public purpose.

53

54 (F) Scope of searchstrip search

5556 Strip search permissible where arrestee to be jailed.

57 (1) Should be conducted pursuant to standardized, uniform administrative policy and procedures, and, in case ofmisdemeanor or traffic offenses, requirements ofRC 2933.32 must be met. See section (3) below.

5859 (2) Where arrest for nonviolent, nonserious offense (e.g., DUI), no indication that arrestee combative, armed, or

hiding evidence, and arrestee not to be placed in general jail population, strip search may violate civil rights ofarrestee. Moreover, requirements ofRC 2933.32 must be met. See section (3) below.

6061 (3) UnderRC 2933.32, where person detained or arrested for misdemeanor or traffic offense, strip search may be

conducted only if following requirements are met:

62 (a) Must be probable cause to believe that arrestee concealing evidence of commission of crime, includingfruits or tools of crime, contraband, or deadly weapon that could not otherwise be discovered. Nature of

offense, circumstances of arrest, and arrestees prior record, if known, to be considered;

63

64 (b) Strip search may be conducted for legitimate medical or hygienic reason;65

66 (c) Officer or employee of law enforcement agency conducting search must obtain written authorization from
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person in command of law enforcement agency or person designated by person in command, unless there is

legitimate medical reason or medical emergency that makes obtaining authorization impracticable; and

67

68 (d) Search must be conducted by person of same sex as arrestee and in location that permits only personconducting search to observe.

69

70 (4) Limitations upon strip search do not apply to visual observation of arrestee who was given reasonableopportunity to secure bail and failed and who is to be integrated into general population of detention facility while

person is changing into clothes required to be worn in facility.

7172 (5) Above requirements do not apply to searches of offenders sentenced to and serving term of imprisonment in

detention facility.

7374 (G) Scope of searchbody cavities

75 (1) Requirements for strip search apply to body cavity search. In addition:

76 (a) Search warrant must be obtained, unless there is legitimate medical reason or medical emergency

justifying warrantless search; and77

78 (b) Body cavity search must be conducted under sanitary conditions and only by physician, or registered orlicensed practical nurse authorized to practice in Ohio.

79

80 (H) Report of strip search or body cavity search8182 After body cavity or strip search conducted, person who conducted search must prepare written report that includes:

83 (1) Name of person searched;

8485 (2) Name of person who conducted search, and time, date, and place of search;86

87 (3) List of items recovered in search, if any;8889 (4) Facts relied on for probable cause determination to conduct search, including without limitation nature of

offense, circumstances of arrest, arrestees prior record;

90

91 (5) If search conducted without warrant or strip search without written authorization, legitimate medical reason, ormedical emergency must be included.

9293 (6) Copy of report must be kept on file, and copy given to person searched.

9495 (7) Consequences of failure to comply with search requirements:

96 (a) Violation of requirements for conducting strip search or body cavity search is 1st degree misdemeanor;97

98 (b) Failure to prepare report is fourth degree misdemeanor; and99

100 (c) Civil liability, including punitive damages and attorneys fees, may result.

101

AUTOMOBILE EXCEPTION TO SEARCH WARRANT REQUIREMENT

102 (A) Grounds and scope103 (1) Exception applies any time officer stops vehicle, and officer may stop vehicle under exception if


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probable cause requirement met. See section (3) below.

104105 (2) Parked vehicle

106 (a) Vehicle parked in public area may be seized and searched under exception if probable cause

requirement met.107

108 (b) If vehicle parked on private property, warrantless search may not be proper, particularly where officershad ample time to obtain warrant.

109

110 (3) Probable cause requirement111 (a) Officer must have probable cause, based on objective facts, that vehicle contains specific contraband or

evidence of a crime.

112

113 (b) Facts giving rise to probable cause must be such that they would support issuance of search warrant.114

115 (4) No exigent circumstances need be shown. Fact that item to be searched is vehicle is exigency in itself.

116117 (5) Vehicle may be searched even if occupants have been arrested and vehicle immobilized.118

119 (6) Vehicle may be searched on road at time of stop, or searched later at police station.120121 (7) All areas of the vehicle where item(s) sought can be hidden may be searched.

122

123 (B) Search of containers124

125 Officer may search all containers or receptacles found anywhere in vehicle, including opening closed containers, andeven though probable cause focused on container before it was placed in vehicle, provided container could hold the item

being searched for.126

127 (C) Inspection of Vehicle Identification Number (VIN)128 (1) Need not be justified under automobile exceptionflows from traffic violation for which vehicle

stopped.

129130 (2) If VIN visible from outside, officer may not enter vehicle to obtain. If VIN not visible from outside,

officer may open door to search for, provided search is no more extensive than necessary to locate VIN.

131

INVENTORY SEARCH OF VEHICLE

132 (A) Officer may inventory contents of lawfully impounded vehicle

133 (1) Search is not a permissible inventory search where the alleged inventory purpose is a mere pretext foran investigative search, or where search not conducted in traditional or routine manner of inventory search.

134135 (2) Vehicle is lawfully impounded where:

136 (a) It is evidence in criminal case, was used to commit crime, or was obtained with funds derived fromcriminal activities;

137

138 (b) Vehicle was unlawfully parked or obstructing traffic, or was abandoned;

139140 (c) Driver was arrested on road; or


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141

142 (d) Impoundment otherwise authorized by statute or ordinance.143

144 (3) Legally parked vehicle may not be impounded merely because owner or driver has been arrested away

from vehicle.145

146 (B) Standard policy147148 Department should establish written, standardized policy and apply it uniformly, especially with respect to opening

closed containers.

149

CONSENT SEARCHES

150 (A) In general151

152 Search warrant not required for search made with consent of person whose person or property searched.

153154 (B) Consent must be voluntary

155 (1) Must be act of free will, not result of duress or coercion, express or implied.

156157 (2) Consent given as result of officers misrepresentation or in response to show of authority not voluntary.158

159 (3) Whether consent voluntary determined from all facts and surrounding circumstances; that suspect wasor was not informed of right to refuse consent is one factor to be considered.

160

161 (C) Scope of consent

162 (1) Scope of consent may be limited by officers request. Officer has consent to search only what was

requested.163164 (2) Person may set limits on consent and officer may not exceed. May limit time, duration, area, and

intensity of search.

165

166 (3) Split of authority whether consent may be terminated or retracted during the search.167168 (4) General consent to search premises or vehicle, without express limitations by owner, authorizes search

of entire premises or vehicle (implicit limits might be created by nature of the object sought).

169

170 (D) Third party consent

171 (1) May be relied on where third party has common authority over area to be searched, even though actualsuspect was in custody and could have been asked for consent, or in fact refused consent.

172

173 (2) Third persons consent must meet same voluntariness standard as above.174175 (3) Parents who own or control premises where child lives may consent to search for evidence against

child.

176177 (4) One spouse may consent to search of common vehicle or residence for evidence against other spouse.

178


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179 (5) Consent of co-inhabitant of suspect limited to common areas over which co-inhabitants have jointaccess or control. Thus, one co-inhabitant may not have authority to grant consent to search the others bedroom or

personal effects.

180

181 (6) Police may reasonably rely upon apparent authority of person consenting.182

PLAIN VIEW EXCEPTION TO SEARCH WARRANT REQUIREMENT

183 (A) In general

184185 Evidence or contraband in plain view of officer may be seized without warrant, provided requirements listed below

are met.

186

187 (B) Lawful presence of officer188 (1) Officer must be lawfully:

189 (a) Present in place where he/she sees item at issue;

190191 (b) In position that provides him/her with plain view; and192

193 (c) Present in place where seizure occurs.194

195 (2) If officer is executing valid search warrant:

196 (a) Officer may seize unlisted contraband or evidentiary items found during search; but

197198 (b) Officer may not use plain view to justify extending authorized scope of warrant by searching areas not

described in warrant or areas where items listed in warrant could not be found or continuing to search after

listed items found.

199200 (3) If officer lawfully present under valid exception to search warrant requirement, he/she may seize itemsin plain view.

201

202 (4) If officer lawfully present for other reasons, such as in public place or in home with owners permission,evidence in plain view may be seized.

203

204 (5) Officer lawfully present when:

205 (a) In open field or other open place;206

207 (b) Enters privately owned land to seize items in plain view, or where property left open to community toview, travel, or use;

208209 (c) Evidence seized visible from walk leading to house.

210211 (C) Incriminating nature apparent

212

213 In order to be subject to seizure under plain view doctrine, incriminating nature of evidence found in plain viewmust be immediately apparent.

214 (1) Probable cause to associate item observed with criminal activity is sufficient.

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216 (2) Officer may draw logical inferences from facts observed and draw on his/her knowledge, experience.

217218 (3) Incriminating nature must be apparent from observation without disturbing item.

219 (a) Object may not be moved or turned over to determine whether it is criminal evidence; but

220221 (b) Where item must be moved to search for items listed in warrant, and movement provides different,

incidental view of item, this view may be basis of probable cause belief that item is evidence.

222223 (D) Inadvertent discovery rule abrogated

224

225 Formerly, plain view doctrine required that discovery of item be inadvertent. This is no longer necessary.226

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appendix d provisions for warrantless searches checklist

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