The Honolulu Police Department shall conduct warrantless
searches in a manner that protects constitutional rights,
preserves evidence, and provides for the safety of all parties involved.
A. The Fourth Amendment to the Constitution of
the United States provides the right of the
people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures.
Article I, Section 7, of the Hawaii State
Constitution, additionally provides the right
of the people to be secure against invasions of privacy.
B. The courts are continuously interpreting the
Fourth Amendment as it applies to police conduct.
The complex history of search and seizure case
law makes it difficult for law enforcement officers
to apply standards and procedures to warrantless
search and seizure situations. Each situation
has to be judged by the individual facts and
circumstances unique to each particular case.
Officers should consult with their supervisor
when in doubt as to whether a warrantless search
or seizure is proper.
Personnel shall obtain a search warrant whenever appropriate.
To provide departmental personnel with general
guidelines and procedures when conducting warrantless searches.
A. Each individual situation and case should
be viewed as it pertains to the specific facts
and circumstances relative to that specific case or situation.
B. This policy does not prohibit action or
decisions based on other knowledge, information,
or case precedence not included in this policy.
The Constitution of the United States, Supreme
Court rulings, Hawaii state statutes, and other
case law dictate when a police officer must
obtain a warrant to search a person, place, or
thing. There are limited exceptions to these
rules and the key to the successful, legal
discovery of evidence and/or contraband is the
reasonableness of an officer’s actions. The
exceptions to a search warrant are:
A. Search by Consent
1. A warrantless search may be legally justified
because the person in control of the property is
said to have agreed to it.
2. Consent must be given freely without coercion
and without a promise of anything in return.
3. Consent must be given by a competent party
and must be from the person(s) whose expectation
of privacy is involved.
4. Generally, consent cannot be given to an
area or item in which privacy consideration
is shared with another. However, a third
person can consent to a search of an area
that is commonly held or cohabited or where
they have common authority.
5. When a consent to search is obtained, it
is recommended that the Written Consent to
Search, HPD-393 form, be used to prevent
subsequent denials of voluntary consent by
the parties involved.
B. Stop and Frisk
1. A consensual encounter is a voluntary
interaction between the police and the public.
Generally, a consensual encounter does not
invoke the Fourth Amendment of the Constitution.
Legal principles regarding investigative stops/
detentions do not prohibit officers from
contacting persons and engaging such persons in
conversation. Constitutionally, there is nothing
that prevents a police officer from addressing
questions, in an appropriate manner, to anyone on
the streets when the individual to whom the
questions are addressed is under no compulsion
to cooperate. In a consensual encounter, the
person need not cooperate with the police and is
free to leave at anytime.
If a person is not free to leave, it is generally
considered an investigative stop or detention.
2. Constitutionally, an investigative stop or
detention by an officer is considered a seizure
of a person. Generally, a person is “seized”
if, from an objective standpoint and given the
totality of the circumstances, a reasonable
person would have believed that he or she was
not free to leave. Also, a person is seized
when a police officer approaches that person
for the express or implied purpose of
investigating him or her for possible criminal
violations and begins to ask for information.
3. To justify an investigative stop, the police
must be able to point to specific and articulable
facts which, taken together with rational
inferences from those facts, reasonably warrants
the intrusion. The ultimate test in these
situations must be whether from these facts,
measured by an objective standard, a person of
reasonable caution would be warranted in
believing that criminal activity was afoot and
that the action taken was appropriate.
4. A “stop and frisk” situation refers to the
use of lawful detention and a limited pat down
for the protection of officers and others nearby
without probable cause for an arrest. A situation
where an officer has a legal right to stop does
not automatically confer upon the officer the right
to frisk. A “stop and frisk” involves two distinct aspects:
a. The first aspect is the “stop” itself. An
officer, in an appropriate circumstance and in
an appropriate manner, may approach a person
for purposes of investigating criminal behavior
even though there is a no probable cause to make an arrest.
b. The second aspect involves the right of
the officer to further intrude upon the
liberty of the person detained. The “frisk”
is a limited search for weapons. It is
usually restricted to a pat down of outer
garments for weapons (e.g., guns, knives,
and clubs) or other hidden instruments that
could be used to assault an officer or another
5. A pat down of outer garments that reveals a
possible weapon or hidden instrument that could
be used as a weapon justifies a further intrusion
into the garments to disarm the person being searched.
C. Exigent Circumstances
1. Under certain emergency circumstances, the
requirement of a search warrant is waived, and
an officer may properly conduct a warrantless
search. This immediate, warrantless search is
justified to prevent the imminent danger to life,
forestall or prevent the likely escape of a
suspect, prevent serious damage to property,
and/or preserve evidence from being destroyed or removed.
2. Exigent circumstances are said to occur where
emergency considerations are involved that would
make a delay for the acquisition of a warrant unreasonable.
D. Movable Vehicle Exception
1. Whenever practicable, a warrant shall be obtained
for the search of a motor vehicle.
2. The movable vehicle exception is a form of
exigent circumstances. Officers may search a
motor vehicle without first obtaining a search
warrant if there is:
a. Probable cause to believe the vehicle contains
contraband or evidence of a crime; and
b. A foreseeable risk that, because of the vehicle’s
mobility or exposure, the vehicle might be moved or
the evidence it contains might be removed or destroyed
before a warrant could be obtained.
3. In general, warrantless inventory searches are
not conducted on vehicles seized for criminal
investigations. These cases involve searches after
a warrant has been obtained.
E. Crime Scene and Investigation Searches
Criminal investigations could develop into
countless, warrantless search situations.
The following are the common types that occur:
1. “Open view” is a warrantless exception where
officers have a legal right to seize and recover
evidence that is located in a place where there
is no expectation of privacy or the expectation
of privacy is such that the courts would deem it
to be unreasonable. It usually involves evidence
or criminal activity that is wide open for the
public or the police to see or hear;
2. “Plain view” is used where a situation involves
the discovery of evidence or the discovery of
criminal activity by police officers after a legal
intrusion has occurred.
a. An intrusion can take the form of a traffic stop,
a police service call, or the service of a complaint
received as a result of a 911 call.
b. As a general rule, “plain view” is the discovery
of evidence or criminal activity by accident and the
discovery is unplanned; and
3. “Abandonment” is the voluntary relinquishment of
control over property. A person who abandons
property does not have a constitutionally protected
expectation of privacy. “Abandonment” must be overt
and positive in nature. Examples are:
a. When a person throws down an item and walks
or runs away; and
b. When a person denies ownership of the property in question.
NOTE: Discarded property cannot be assumed as
abandoned. In Hawaii, property that is placed out
(such as garbage left at a curbside for collection)
is, for the most part, still considered to have an
expectation of privacy.
When a subject fails to respond to an officer’s
inquiry about the ownership of an article or
property, the subject does not relinquish any
privacy rights nor shall the article or property
be considered abandoned.
SEARCH INCIDENTAL TO A LAWFUL ARREST
Searches incidental to a lawful arrest and
preincarceration searches shall be in accordance
with Policy 7.01, ARREST AND ARRESTED PERSONS;
and Policy 7.02, SECURITY CONTROL OF ARRESTEES.