G2.2.5 Search and Seizure without a Warrant
Chapter: Chapter 02: Role and Authority
Sub-Chapter: 2.2 - Limits of Authority
Effective Date: 08/24/2020
Revised Date: 11/14/2023
Rescinds: G2.2.5 – 7/30/2021
Purpose
To provide the Indiana University Police Department (IUPD) with general guidelines and procedures for officers to follow in conducting searches and seizures without a warrant.
General Order
The IUPD professionally conducts all searches and seizures in compliance with all constitutional and statutory provisions and in accordance with relevant case law. Only sworn officers are authorized to conduct searches and seizures without a warrant provided, however, non-sworn IUPD personnel may assist sworn officers in related investigations processes which may include, but not be limited to, securing a scene and collection, inventory, and analysis of evidence in searches with or without a warrant. All sworn and non-sworn IUPD personnel who perform any tasks related to a search and seizure with or without a warrant will document all relevant information in the appropriate case report within the IUPD’s Records Management System.
Consent search (2.2.5 a)
Officers may conduct a search without a warrant if they have proper consent. Consent to search is valid regardless of whether it is made orally or in writing. A consent to search in writing is preferable and should be obtained whenever possible using the IUPD’s F2.2.5-1 Consent Search Authorization form.
Consent to enter a premise is not a consent to search that premises. Once inside, an officer may make a protective sweep of a building to ensure there are no persons readily available to cause harm to the officer, or who may need immediate assistance.
When seeking consent to search, officers must understand that:
- The consent must be voluntary;
- The scope of the search is limited to the exact words or meaning of the consent;
- The person giving the consent must have actual or apparent legal authority to do so; and
- Consent may be withdrawn at any time.
Actual authority requires a sufficient relationship to or mutual use of the property by persons having joint access to or control of the property. Apparent authority is determined based on the facts available to the officer at the time would cause a person of reasonable caution to believe that the consenting party had authority over the premises.
Consent to search given by a person in custody is not covered by the Miranda warning. When a person in custody is asked for consent to search, officers must:
- Inform the person that they have the right to refuse consent;
- Inform the person that they have the right to consult with counsel before giving consent;
- Inform the person that if they are indigent, the person may ask that the court appoint counsel to consult with them about whether they should consent;
- Confirm that the person understands these rights;
- Obtain a verbal or written waiver of these rights; and
- Confirm that the person does give consent before conducting a search.
In the event that the property or place to be searched is co-owned, co-leased or inhabited by more than one person, then all parties who are immediately present at the time of consent must give permission to search said property. Officers are under no obligation to seek out and search for other parties who have a standing to object to a search in order to obtain their consent even if officers know the whereabouts of the other persons. Arrest will not be used as a means of circumventing a person’s consent and under no circumstances will a person with standing to object to a search be removed from the scene in order to prevent their objection.
In the event that a party refuses consent, officers will determine if they have probable cause to attempt to obtain a search warrant in accordance with G2.2.4 Search and Seizure with a Warrant. When deciding on whether an arrest should occur, officers will use the Critical Decision-Making Model to determine the appropriate course of action following G2.2.3 Alternatives to Arrest. The decision to arrest is independent from the individual’s decision in consenting to or refusing a search. Officers will not coerce, unduly influence, intimidate, or threaten any individual when that individual is deciding whether or not to consent to a search.
Pat-down search (2.2.5 b)
A pat-down must be a carefully limited search of the suspect’s outer clothing aimed at discovering weapons. Prior to performing a pat-down, officers must have an objectively reasonable basis to believe the individual may be armed and potentially poses a threat to officer or public safety.
The same criteria would apply to a motorist and their vehicle. If an officer has an objectively reasonable basis to believe the individual may be armed and potentially poses a threat to officer or public safety, the officer may search the passenger compartment of the vehicle for weapons. The search must be limited to areas where a weapon might be placed or hidden within the driver’s and/or passengers’ scope of reach.
To determine the reasonableness of the search, officers will balance the following factors:
- The degree of concern, suspicion, or knowledge that a violation has occurred,
- The degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities, and
- The extent of the law enforcement needs.
Plain view seizure (2.2.5 c)
Officers may seize evidence located in plain view, provided the officer has a legal right to be at the location where the evidence was observed, the discovery of the evidence was inadvertent, and it is immediately apparent the items are evidence of a crime.
Exigent circumstances (2.2.5 d)
Where officers have probable cause to conduct a search and exigent circumstances exist, officers may make a warrantless search of anything including but not limited to personal belongings, a vehicle, and/or other areas or premises. This may include but is not limited to anytime officers have good reason to believe a warrantless search is necessary to save a life or prevent injury. An exigent circumstance occurs when an emergency exists and there is no time for officers to obtain a search warrant. That is, the evidence could be destroyed or displaced by the time a search warrant is obtained. Generally, the more serious the crime or greater the threat to public safety, the more likely it is that the courts will recognize the situation as a true emergency justifying a search based on exigent circumstances.
Vehicle searches, including moving exceptions and inventory of contents (2.2.5 e)
Vehicle search under a moveable vehicle exception
An officer can make a warrantless search of a vehicle if:
- The officer has probable cause that would have justified a warrant;
- The vehicle was moving or about to be moved (excluding when the vehicle is located on the curtilage of a home); and
- The facts and circumstances indicate that a warrant was not readily available.
A vehicle search founded on probable cause may extend to any part of the vehicle, including closed containers found inside, in which the object of the search can be concealed.
If an officer is unable to obtain probable cause to search a vehicle until after the vehicle has lost its mobility or has been taken into custody, then a warrant or consent to search will be obtained before conducting the search.
Vehicle inventory
A vehicle inventory pursuant to tow is an administrative procedure conducted to protect the property of the owner, protect the officers and the IUPD against claims that property in the possession of the officers or the IUPD has been lost or stolen, and allows officers to discover any potential danger that may exist because of property in their possession.
Officers will conduct an inventory on all vehicles that are impounded by the IUPD. If officers are unable to gain entry to the vehicle or any component of the vehicle, officers will document the circumstances in the appropriate case report and/or tow form. Vehicles that are towed privately and are not in the custody or control of the IUPD will not be inventoried. The inventory will consist of:
- The passenger compartment and any areas accessible to a passenger in the vehicle;
- Trunk and any other exterior compartments will be examined and inventoried;
- Any closed but unlocked containers found in either the passenger or trunk compartments will be opened and inventoried;
- Any closed and locked containers may be opened with the consent of the owner and inventoried. If the owner refuses consent, then that fact will be noted in the officer’s report. Locked containers will not be forced open and damaged for the purposes of conducting an inventory. Locked containers suspected of containing fruits of criminal activity will only be searched after obtaining consent from the owner or after obtaining a court order authorizing the search.
The inventory will be conducted to secure any items of value including, but not limited to, paper currency, precious gems or metals, prescribed medications, firearms and other weapons, cell phones, laptops (or other similar electronic devices) and personal documents which could be used for identity theft. Items of value will be documented in the officer’s report and treated as in-custody property held for safekeeping in accordance with general orders concerning property and evidence control. Any other items of importance found inside the vehicle that are not treated as in-custody property held for safekeeping will be documented on the tow form.
In the event contraband or other evidence is discovered during the course of an inventory, the item(s) will be documented in the officer’s report and treated as evidence in accordance with general orders concerning property and evidence control.
Residence halls and other institutional property (2.2.5 f)
A search warrant is required to enter and search a residence, private business, or other place where a person has a reasonable expectation of privacy. There are certain limited situations where there is an exception to the warrant requirement as outlined in this general order and relevant case law. Unless consent is given or one of the limited exceptions applies, officers will attempt to obtain a search warrant based upon probable cause prior to searching residence halls or other institutional property where the individual has a reasonable expectation of privacy.
Body cavity search
A body cavity search is defined as going beyond visual or manual inspection of skin surfaces, so that it involves internal physical examination of body cavities, and in some instances, organs such as the stomach.
Apart from the mouth, officers will not conduct body cavity searches. Body cavity searches will only be performed by medical personnel, in an appropriate facility, pursuant to a search warrant or court order.
Exigent circumstances, such as the suspect placing illegal narcotics or contraband into their mouth, do not require obtaining a search warrant or court order. Minimal physical force (e.g., joint manipulation and pressure points) and verbal commands may be used to recover suspected narcotics or contraband from a suspect’s mouth. Force used will not include any strikes or any type of force which restricts breathing or blood flow in the neck.
Strip search
A strip search is defined as having the arrestee remove or rearrange some or all of their clothing to permit a visual inspection of the genitals, buttocks, anus, or female breasts or undergarments of such person. Strip searches are strictly prohibited.
Pretextual traffic stops, pedestrian stops, and searches prohibited
Pretextual traffic and pedestrian stops are strictly prohibited. Pretextual traffic stops are defined as stopping a motorist for a minor traffic violation with the goal of investigating other unrelated criminal activity. During a traffic or pedestrian stop, the IUPD will not use the odor of marijuana alone as a reason for any further investigation or enforcement action, as this may give the appearance that the traffic or pedestrian stop is pretextual.
The odor of marijuana alone will not be used as a precursor to search a room, vehicle, or the occupants of a room or vehicle for contraband. If the odor of marijuana is detected, officers will continue to collect information prior to conducting any search or seizure. This does not preclude a pat-down of outer clothing or areas within reach of a vehicle for the purpose of discovering weapons or plain view seizure when conducted under the limitations as defined and described in this general order.
Terry stops
A Terry stop is a seizure within the meaning of the Fourth Amendment. An officer may stop an individual or a vehicle for a brief investigative detention even though there is insufficient probable cause to arrest if:
- the officer has knowledge of specific, articulable, and objective facts that reasonably lead the officer to believe that the person is involved in criminal activity; and
- the officer identifies themselves as a police officer and makes reasonable inquiries as to the person’s conduct.
The length of the investigative detention will not be longer than necessary to confirm or dispel the officer’s suspicions regarding the criminal activity for which the investigatory stop was initiated. If the officer is unable to develop, at minimum, reasonable suspicion justifying further investigation, then the person will be free to go.
In a traffic stop setting, the Terry condition of a lawful investigatory stop is met whenever it is lawful for the police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police do not need to believe that any occupant of the vehicle is involved in criminal activity.
Related Information
Indiana University Police Department
- F2.2.5-1 Consent Search Authorization
- G2.2.3 Alternatives to Arrest
- G2.2.4 Search and Seizure with a Warrant