Searches - Vehicles

• The Fourth Amendment protects individuals from unreasonable searches and seizures of their persons, houses, papers, and effects, extending to the curtilage of their property.
• The burden is on officers conducting a search to prove its reasonableness if they lack a warrant or an exception.
• Omaha Police Department (OPD) policy dictates officers must not enter a private residence or property without a warrant or an exception.
• Officers should seek a search warrant when time and circumstances allow.

Definitions

• Curtilage: Area intimately linked to the home, immediately surrounding it, where privacy expectations are highest, considered part of the home.
• Exigent Circumstances: Emergency requiring swift action to prevent danger to life, serious damage to property, escape of a suspect, or destruction of evidence.
• First-Party Residence: The suspect's primary residence per records like IMS, NCJIS, utilities, mail, vehicle registration.
• Fresh Pursuit: Pursuing a wanted suspect to prevent escape without unreasonable delay.
• Hot Pursuit: Immediate, direct pursuit of a fleeing suspect from a public space into private property/residence.
• Third-Party Residence: A residence that is NOT the primary residence of the suspect.

Warrant Requirements

• Officers must obtain a warrant before searching a private residence or property, assuming a warrant is necessary unless an exception applies.
• "Warrants - Search Warrant Service” policy outlines procedures for serving search warrants.

Exceptions to Warrant Requirement

• Certain searches of persons (refer to OPD "Searches – Persons" policy).
• Exigent circumstances.
• Certain vehicle searches (refer to OPD "Searches – Vehicles" policy).
• Consent from an appropriate person.

Authorization to Search

• Absent exigent circumstances, officers need permission or authorization to search private residences/properties.
• Permission can be obtained from the person in control of the property.
• A Permission for Search form (OPD Form 5) must be completed, documenting:
  • Property owner's name.
  • Name and ID of the person in control.
  • Names of officers who entered.
  • Circumstances leading to entry, including probable cause.
  • Entry and exit times.
  • Actions taken, including seizures and arrests.
  • Reference to other reports.
• A copy of the Permission for Search form (OPD Form 5), excluding the Supplementary Section, is given to the consenting person after the search.
• The Supplementary Report Section contains a narrative of the officer's reasonable suspicion and is for police use only.
• If the consenting party is not the owner/renter, the officer must document why they believed the third party had the authority to consent.
• Permission to search can be revoked or restricted at any time, requiring officers to stop the search immediately and obtain a warrant to continue.
• A search warrant can be obtained to conduct the search.
• Secure the property and request a command officer's presence while obtaining a warrant.
• Approval from 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 before warrant service.

Arrest Warrants and Searches

• An arrest warrant allows forced entry into the suspect's First-Party Residence if:
  • The address is confirmed as the suspect's primary residence.
  • Officers have reasonable grounds to believe the suspect is inside.
• If unable to confirm the property is the First-Party Residence, officers cannot force entry without exigent circumstances.
• To search a Third-Party Residence, officers must obtain permission or a search warrant.
• Forced entry into a Third-Party Residence, even with an open door or communication with the suspect, requires permission or a warrant unless exigent circumstances exist.
• Entry documentation:
  • If damage occurs, a Chief’s Report (OPD Form 214) must document the damage/entry.
    • The property owner should file a claim with the City of Omaha for reimbursement of damage.
    • Officers should make a reasonable attempt to secure the property with the owner's consent, based on their physical condition, age or disability.
  • If no damage occurs, officers must thoroughly document the entry and its reasons in an Incident Report or Information Report, as appropriate.

Warrantless/Nonconsensual Entry

• Officers searching private property without a warrant and consent must complete a Chief’s Report including:
  • Property owner's name.
  • Name and ID of the person in control.
  • Names of all officers who entered.
  • Circumstances leading to entry and probable cause.
  • The exigent factors justifying the warrantless entry.
    • Prevent escape of suspect.
    • Prevent imminent destruction of evidence.
    • Prevent bodily harm or provide emergency aid.
• Officers must articulate and document the exigent factors and any dangerous or life-threatening circumstances that led to the entry.
• Pursuing a fleeing misdemeanant alone is insufficient justification; officers must determine if a law enforcement emergency exists. Officers must determine if a law enforcement emergency exists, and be able to articulate a need to prevent imminent injury, destruction of evidence, or escape from the residence.
• The Supreme Court has ruled that the pursuit of a fleeing misdemeanor suspect does not always justify a warrantless entry into a home.
• Entry and exit times.
• All actions taken, including seizures and arrests.
• Reference to other reports.
• The completed Chief’s Report and copies of all other pertinent reports are to be forwarded as described in the OPD “Chief’s Report” policy for review and disposition.

Curtilage

• Officers can approach front doors to contact occupants; courts imply consent for visitors to do so.
• The pathway to the front door is generally not within the curtilage, a recessed driveway area would be considered part of the curtilage
• Evidence or contraband observed within the curtilage cannot be seized without a warrant.
• Observations can be included in an "Affidavit and Application for Issuance of a Search Warrant" to obtain a warrant.
• For example, observing drug paraphernalia in plain view in a driveway area that extends beyond what would be considered the pathway exempted from the Curtilage of a residence, officers must obtain a search warrant in order to enter the area and seize the contraband.
• The automobile exception to the warrant requirement does not allow warrantless entry into a driveway, carport, garage or other private property’s curtilage to search a vehicle.
• For example, if officers observe a vehicle they believe to be stolen covered by a tarp in a recessed area of a driveway that lies in the Curtilage area of a property, officers must obtain a search warrant in order to enter the area and lift the tarp to inspect the plates, VIN, etc.

Explanation of the Fourth Amendment, which protects against unreasonable searches and seizures. Covers curtilage, burden of proof, OPD policy, and the need for search warrants. Includes definitions of curtilage, exigent circumstances, and fresh pursuit.