0650.00, Search, Seizures, and Inventories
Refer:
- ORS 131.005, General definitions
- ORS 131.605, Definitions for ORS 131.605 to 131.625
- ORS 131.615, Stopping of persons
- ORS 133.033, Peace officer community caretaking functions
- ORS 133.525, Definitions for ORS 133.525 to 133.703
- ORS 133.535, Permissible objects of search and seizure
- ORS 133.537, Protection of things seized
- ORS 153.039, Stop and detention for violation
- ORS 810.410, Arrest and citation
- City Code Chapter 14C.10, Police Duties to Inventory Property
- DIR 0631.60, Premises Entry
- DIR 0640.02, Photography and Digital Imaging
- DIR 0652.00, Search Warrants
- DIR 0660.10, Property and Evidence Procedures
- DIR 0740.00, Explosive Device Incidents and EDU
- DIR 0850.21, Peace Officer Custody (Civil)
- DIR 0870.20, Custody and Transportation of Subjects
Definitions:
- Body cavity search: Any visual or physical inspection of a person’s internal genital or anal region with or without physical contact or intrusion into a body cavity.
- Frisk: An external patting of a person’s outer clothing.
- Inventory: An administrative, non-discretionary search made for the purposes of safety and documentation of a person’s personal property.
- Probable cause: Probable cause means that there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.
- Reasonable suspicion: An objective test measured at the time and place the member acts and based on the totality of the circumstances, which requires a member to point to specific, articulable facts giving rise to a reasonable inference that a subject has engaged or is engaging in criminal activity.
- Search: When an officer intrudes upon a person’s protected privacy interests.
- Seizure of a person: When an officer significantly interferes with a person’s liberty of movement, including but not limited to pedestrian stops, traffic stops, and arrests.
- Seizure of property: When an officer significantly interferes with a person’s possession or ownership interests in their property.
- Strip Search: A search of a person that includes the removal of clothing to permit visual inspection of the person’s groin/genital area, buttocks, breasts, or undergarments covering those areas.
Policy:
1. Both federal and state Constitutions protect every person against unreasonable governmental searches and seizures. This policy provides guidance for members to act in accordance with the law and respect the constitutional rights of individuals during searches and seizures.
2. Case law regarding search and seizure issues changes frequently. The Bureau is responsible, with the assistance of the City Attorney’s Office, for training members regarding updates to the law. Members are responsible for acting in accordance with current training.
Procedure:
- General Requirements for Searches and Seizures.
1.1. Members shall not use any class protected by law, City, or Bureau policy in exercising discretion to conduct a search or seizure, except as part of an actual and apparently credible description of a specific suspect or suspects in any criminal investigation.
1.2. Members shall strive to conduct searches and seizures with dignity and courtesy.
1.3. Members shall conduct property searches in a manner that leaves property in a condition as close as reasonably practicable to its pre-search condition.
1.4. When safe and feasible, members shall explain the reason for the search or seizure to the person being searched or seized.
1.5. Members are responsible for searching persons they transport as an arrestee, regardless of whether another officer previously searched the person.
1.6. When safe and feasible, members shall conduct searches with another member present.
1.7. When safe and feasible, women members shall conduct searches of women.
1.8. When a member is unsure of a person’s gender identity for the purpose of a search, the member shall respectfully ask the person how they identify in terms of gender.
1.8.1. Members shall respect the gender identity expressed or presented by the person being searched.
1.8.2. Members shall not frisk or search any person to determine that person’s gender, sex, or to view or touch the person’s genitals, or for any demeaning or harassing purpose.
1.8.3. If any person to be searched requests that a member of a particular gender conduct the search, the member should accommodate the request if safe and feasible.
1.8.4. Members shall not perform a more or less invasive search or frisk of a person based on that person’s gender identity.
1.9. Members shall document all searches in a police report. Documentation shall include the reason for the search, the circumstances and results of the search, and any departures from this directive for safety or feasibility reasons (e.g., situations that could jeopardize an investigation).
1.10. Members are to be aware that this Directive is more restrictive than state or federal laws.
2. Searches.
2.1. Search Warrants.
2.1.1. The United States and Oregon Constitutions both require police to obtain a warrant before conducting a search, unless there is a lawful exception.
2.1.2. Members shall comply with Directive 0652.00 regarding search warrants.
2.1.3. Lawful exceptions to the requirement for a search warrant may include but are not limited to the following: abandoned/lost property, incident to arrest, community caretaking and emergency aid, consent, exigent circumstances, inventory, and open and/or plain view.
2.2. Abandoned and/or Lost Property.
2.2.1. Searching abandoned property does not require a warrant for a lawful search because the search does not invade any privacy interest.
2.2.2. Abandonment may occur when a person physically discards and/or verbally denies ownership of property.
2.2.3. Members may inspect property in an effort to identify the owner. When the sole purpose for a search is to identify the owner, members must stop the search once they identify the owner.
2.3. Incident to Arrest.
2.3.1. Members shall conduct a search of an arrestee if justified as:
2.3.1.1. Necessary to protect the arresting officer;
2.3.1.2. A precaution to avoid the destruction of evidence or escape of the arrestee; or
2.3.1.3. Reasonably related to the crime for which the person is arrested.
2.3.2. Members shall comply with Portland City Code Chapter 14C.10, Police Duties to Inventory Property.
2.4. Community Caretaking and Emergency Aid.
2.4.1. Community Caretaking.
2.4.1.1. Members may enter or remain upon a premises if it reasonably appears necessary to:
2.4.1.1.1. Prevent serious harm to any person or property; or
2.4.1.1.2. Render aid to injured or ill persons; or
2.4.1.1.3. Locate missing persons;
2.4.1.2. The circumstances under 2.4.1.1. do not create an independent exception to the warrant requirement. Searches justified as community caretaking must also fall under a lawful exception to the warrant requirement, such as consent or emergency aid.
2.4.2. Emergency Aid.
2.4.2.1. The emergency aid doctrine provides an exception to the warrant requirement when the following conditions are met:
2.4.2.1.1. The member has a subjective belief;
2.4.2.1.2. that is objectively reasonable and based on articulable facts;
2.4.2.1.3. that a warrantless entry is necessary;
2.4.2.1.4. to either render immediate aid or assist those who have suffered or who are imminently threatened with suffering, serious physical injury, or harm.
2.4.2.2. Members conducting searches under this doctrine shall document the circumstances and their actions in a police report.
2.5. Consent Searches.
2.5.1. Both federal and state law allow police to conduct a valid search of a person, personal property, vehicle, or location, if the person being searched or the person in control of the property gives voluntary consent for the search.
2.5.2. Members may request consent to search a person, personal property, vehicle, or location for any lawful purpose, unless restricted pursuant to section 2.5.4. below.
2.5.3. Members should be aware that overuse of the consent search can negatively impact the Bureau’s relationships with the community and should focus on obtaining consent in circumstances reasonably believed to be relevant to any investigation.
2.5.4. Procedure for Investigative Consent Searches During Pedestrian or Vehicle Stops (excluding Field Sobriety Tests (see Directive 0860.10, Traffic Citations and Arrests) and Weapons Frisks (see Section 3.2 below)).
2.5.4.1. Members shall only request consent to search a person, personal property, or vehicle during a stop if they have reasonable suspicion or probable cause regarding a crime.
2.5.4.2. Investigative Consent Searches During Stops require the following:
2.5.4.2.1. Consent is clear, specific, and unequivocal.
2.5.4.2.2. Consent is voluntary and obtained without coercion.
2.5.4.2.3. The person consenting has actual authority to give consent.
2.5.4.2.3.1. Members are not expected to determine whether a person has actual authority to consent to a search, as that is a question of law to be determined by courts. Members should inquire into a person’s authority to consent whenever the circumstances raise a question on that issue.
2.5.4.2.4. If another person with authority to the property, vehicle, or location is present and refuses consent, then no search shall occur without probable cause and a warrant or a valid warrant exception.
2.5.4.2.5. The search does not exceed the scope of the consent given.
2.5.4.3. Documentation and Notice Requirements for Investigative Consent Searches During Stops:
2.5.4.3.1. Members shall inform the person of their right to refuse, and revoke, their consent.
2.5.4.3.1.1. If a person refuses to consent to a search, members shall not conduct the search, unless the search is otherwise constitutionally permissible (i.e., the member has/obtains a warrant or there is a valid lawful exception).
2.5.4.3.1.2. If a person revokes their consent to a search, members shall immediately terminate the search, unless the search is otherwise constitutionally permissible (i.e., the member has/obtains a warrant or there is a valid lawful exception).
2.5.4.3.2. Members shall provide the consenting person with a Bureau issued information card regarding consent searches.
2.5.4.3.3. Members shall document the entire search, including the request for consent, the person’s response, and any revocation, if applicable, via digital audio recording on their Bureau issued smart phone or Bureau approved recording device.
2.5.4.3.4. Members shall inform the person of their intent to record the interaction before starting the audio recording.
2.5.4.3.5. Members shall submit the audio recordings documenting the consent search procedure to DIMS before the end of their shift.
2.5.4.3.6. Members shall not take police action against any person for refusing or revoking their consent to a search.
2.5.4.3.7. Members shall document their reasonable suspicion or probable cause regarding a crime, and the results of the consent search, in a police report.
2.6. Exigent Circumstances.
2.6.1. Exigent circumstances sometimes allow for a warrantless search or seizure. Exigent circumstances exist when there is probable cause for a search or seizure, and police need to act swiftly to prevent danger to life, the imminent destruction of evidence, or a suspect’s escape.
2.6.2. Members shall not create exigent circumstances by their own conduct in order to avoid seeking a warrant.
2.7. Inventory Searches.
2.7.1. Generally.
2.7.1.1. Members shall conduct inventory searches pursuant to Portland City Code Chapter 14C.10, Police Duties to Inventory Property.
2.7.1.2. Members shall process property and evidence according to Directive 0660.10, Property and Evidence Procedures.
2.7.2. Vehicles.
2.7.2.1. Members shall inventory the contents of any vehicle the member impounds, other than vehicles towed at private request.
2.7.2.2. Members shall consult with a Sergeant before impounding a vehicle that is part of a felony crime scene or known or suspected to contain evidence of a felony.
2.7.3. Persons.
2.7.3.1. Members shall inventory personal property in possession of any person taken into police custody whenever:
2.7.3.1.1. Such person will be placed in a secure police holding room or transported in the secure portion of a police vehicle; or
2.7.3.1.2. Custody of the person will be transferred to another law enforcement agency, correctional facility, or treatment facility.
2.7.3.2. The inventory shall include opening closed containers designed for holding money and/or small valuables, including but not limited to purses, coin purses, wallets, fanny packs, backpacks, briefcases, and jewelry pouches.
2.8. Open and Plain View.
2.8.1. Open view and plain view are two separate doctrines that, in different ways, remove the need for a warrant.
2.8.2. Plain View.
2.8.2.1. Members in a place where they have a lawful right to be may seize evidence in plain view without a search warrant.
2.8.2.2. Plain-View Seizure requires:
2.8.2.2.1. A justifiable intrusion onto the premises by the member;
2.8.2.2.2. The member observes the object in plain view from a lawful vantage point; and
2.8.2.2.3. The member has probable cause to seize the item observed.
2.8.3. Open View.
2.8.3.1. A member’s observation, while lawfully outside but looking into a private space, does not require a warrant.
2.8.3.2. However, a warrant, or a lawful exception, is required to enter the private space or to seize evidence seen inside the private space.
3. Seizures.
3.1. The following are subject to seizure:
3.1.1. Evidence of or information concerning the commission of a criminal offense.
3.1.2. Contraband, the fruits of crime, or things otherwise criminally possessed.
3.1.3. Property that has been used, or is possessed for the purpose of being used, to commit or conceal the commission of an offense.
3.1.4. A person for whose arrest there is probable cause or who is unlawfully held in concealment.
3.2. Weapons Frisks and Officer Safety.
3.2.1. Members may frisk a stopped person for dangerous or deadly weapons if the member reasonably suspects that the person is armed and dangerous to the member or other persons present.
3.2.2. If, during the frisk, the member feels an object which they reasonably suspect is a dangerous or deadly weapon, the member may take action as reasonably necessary to take possession of the weapon.
3.2.3. Weapons frisks do not require consent, however, members are encouraged (but not obligated) to ask for consent as a courtesy. Requesting consent for a weapons frisk does not trigger the procedure outlined in section 2.5.4.
4. Strip Searches and Body Cavity Searches.
4.1. Members shall obtain a supervisor’s permission to conduct a strip search.
4.2. Strip searches shall be conducted by members of the same gender as the person being searched, and witnessed by a second member of the same gender as the person being searched.
4.3. If any person to be searched requests that a member of a particular gender conduct the search, the member should accommodate the request if safe and feasible.
4.4. No person may be subject to a body cavity search without a search warrant or lawful exception.
4.5. A body cavity search shall only be conducted by authorized medical personnel in a medical facility.
History:
- Established: 3/1976
- Effective: 8/4/2022
- Next Review: 8/4/2024