Searches - Private Property & Residences

• The Fourth Amendment protects people from unreasonable searches and seizures in their persons, houses, papers, and effects
• These rights extend to the curtilage of their property
• Without a warrant or an exception, officers must prove a search was reasonable

Policy

• Officers should not enter a private residence or property without a warrant to search or arrest, unless an exception exists
• Officers should obtain a search warrant when time and circumstances allow
• See the OPD “Warrants - Search Warrant Service” policy for more information on warrant service

Definitions

• Curtilage: An area intimately linked to the home, both physically and psychologically, where privacy expectations are heightened
• Curtilage is considered part of the home itself
• Exigent Circumstances: An emergency requiring swift action to prevent danger, damage, escape, or destruction of evidence
• First-Party Residence: The suspect's primary residence according to records like IMS, NCJIS, utilities, mail, or vehicle registration
• Fresh Pursuit: Pursuing a wanted suspect without unreasonable delay to prevent escape, not necessarily "hot" pursuit
• Hot Pursuit: Immediate and direct pursuit of a fleeing suspect from a public space into private property
• Third-Party Residence: A residence that is not the suspect's primary residence

Procedure

Requirement for a Warrant

• Officers must have a warrant to search a private residence or property
• Officers should assume a warrant is required unless an exception exists

Exceptions to the Warrant Requirement

• Certain searches of persons as described in the OPD “Searches – Persons” policy
• Exigent Circumstances
• Certain vehicle searches as described in the OPD “Searches – Vehicles” policy
• Consent from an appropriate person

Authorization to Search a Residence or Private Property

• Absent exigent circumstances, officers must have a warrant to cross the threshold of a private residence
• Officers can get permission/authorization to search in one of two ways:
  • Permission from the person in control of the property
  • Obtain a search warrant

Permission from the person in control of the property

• Officers must complete a Permission for Search form (OPD Form 5) which includes:
  • The name of the owner of the property
  • The name and identification of the person in control of the property
  • The names of all officers who entered the property
  • The circumstances that led officers to enter the property, including probable cause
  • The time the property was entered
  • The time officers left the property
  • All actions taken by officers
  • Reference to any other reports that were made
• After the search, officers should give the consenting person a copy of the Permission to Search form (OPD Form 5), omitting the Supplementary Section
• The Supplementary Report Section on OPD Form 5 is for police use only
• It will contain a narrative of the officer’s reasonable suspicion for the search
• If the consenting party is not the owner/renter, the officer will document why they believed the third party had the authority to consent
• The person in control of the property can revoke permission or restrict the search area at any time
• If permission is revoked, officers must stop searching immediately and get a warrant to continue

Obtain a search warrant

• Officers will secure the property and request a command officer’s presence while obtaining a search warrant

Note

• Approval of an OPD lieutenant, captain, or deputy chief and submission of the Warrant Threat Assessment Form (OPD Form 28A) to the OPD ERU lieutenant are required PRIOR TO WARRANT SERVICE as described in the OPD “Warrants - Search Warrant Service” policy

Additional Procedures – Arrest Warrants and Searches

• Officers with an arrest warrant must follow specific procedures when searching property for the suspect
• An officer with an arrest warrant for a suspect, may force entry into a property to arrest the suspect if:
• The address is the suspect's First-Party Residence
  • Officers have reason to believe the suspect is inside at the time of entry
    • The arrest warrant is the authority to enter the First-Party Residence and make the arrest
• Officers will NOT force entry if they can't confirm it's the suspect's First-Party Residence, unless Exigent Circumstances exist

Third Party Residence

• If officers wish to search a Third-Party Residence for a suspect, they will either obtain permission to search or a search warrant
• Forced entry into a Third-Party Residence is defined as passing the threshold of the door
• Even if the suspect is talking to an officer on the other side of the threshold in a Third-Party Residence, officers shall obtain permission to search or a search warrant prior to entering such residence to arrest the suspect except in Exigent Circumstances
• Officers who enter a property to arrest a suspect must document the entry

Documenting Entry

• If damage occurred, complete a Chief’s Report (OPD Form 214) per the OPD “Chief’s Report” policy
  • If the owner wants reimbursement for damage, direct them to file a claim with the City of Omaha
  • If the owner needs help securing the property due to physical condition, age, or disability, officers should reasonably attempt to secure it with their consent
• If no damage occurred, thoroughly document the entry and reasons in another appropriate report

Warrantless/Nonconsensual Entry

• Officers searching private property without a warrant or consent must complete a Chief’s Report with:
  • Name of the property owner
  • Name and ID of the person in control of the property
  • Names of all officers who entered the property
  • Circumstances leading to the entry, including probable cause
  • Exigent factors justifying the entry
    • To prevent suspect escape
    • To prevent imminent destruction of evidence
    • To prevent bodily harm or provide emergency aid
  • Time of entry and departure
  • All actions taken, including property seized and persons taken into custody
  • Reference to other reports made
• The officer must articulate and document the exigent factors which justified their warrantless entry into the property.
• Officers must document any dangerous or life-threatening circumstances that led to the entry
• Pursuing a fleeing misdemeanor suspect does not automatically justify warrantless entry
• Each incident must be evaluated individually, and a warrant is needed where the officers have time to obtain one
• Forward the completed Chief’s Report and other reports as described in the OPD "Chief's Report" policy

Curtilage

• Officers can approach the front doors of residences to contact occupants
• Courts generally find that property owners imply consent for visitors to go to the front door
• The pathway to the front door is generally not within the curtilage, but a recessed driveway area would be considered part of the curtilage
• Evidence or contraband observed in the curtilage cannot be seized without a warrant
• Observations can be included in a warrant application to search the curtilage and seize items
• The automobile exception does not allow warrantless entry into a driveway, carport, garage, or curtilage to search a vehicle