Corrections, Administration

Rule R251-710

Search

Notice of Proposed Rule

(Amendment)

DAR File No.: 34903
Filed: 06/02/2011 08:03:59 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The changes to this rule fall into three primary areas. First, the amendment updates statutory citations referenced in the rule. Second, clarification is provided by separating searches of visitors at correctional institutions from public searches. Finally, search procedures are updated to reflect the most current case law.

Summary of the rule or change:

The change incorporates Section 63G-3-201 into the rule authorization section. Within the definitions section of the rule, updates to the definitions of "exigent circumstances" and "reasonable suspicion" are provided that reflect the status of current case law. Where previously this rule, in an unclear manner, mixed the processes involved for searches of visitors at correctional institutions and searches of the public outside of a correctional institution, this amendment separates these two situations to better clarify the rule.

State statutory or constitutional authorization for this rule:

• Section 64-13-10

Anticipated cost or savings to:

the state budget:

There is no cost to the state budget. The amendment clarifies the search procedures currently in effect based on Supreme Court case law. Primarily, this is a change in the definition of probable cause and reasonable suspicion, and there is no procedural changes. As processes are not changing, there is no impact on staff, and no budget impact.

local governments:

There is no cost to local government. The amendment clarifies the search procedures currently in effect based on Supreme Court case law. Primarily, this is a change in the definition of probable cause and reasonable suspicion, and there is no procedural changes. The searches described are conducted by staff employed by the state and does not impact agents of local government. Therefore, there is no cost impact on local government.

small businesses:

There is no cost to small business. The amendment clarifies the search procedures currently in effect based on Supreme Court case law. Primarily, this is a change in the definition of probable cause and reasonable suspicion, and there is no procedural changes. Small businesses are not involved at any point in the search processes conducted by Corrections' staff.

persons other than small businesses, businesses, or local governmental entities:

There is no other anticipated cost. The amendment clarifies the search procedures currently in effect based on Supreme Court case law. Primarily, this is a change in the definition of probable cause and reasonable suspicion, and there is no procedural changes. The searches conducted by the department are of offenders or visitors to the state's prisons. Searches may delay entry into the prison momentarily, but would not have a cost impact. Additionally, the modifications proposed in this amendment do not change current practices, which further indicates there would be no cost impact.

Compliance costs for affected persons:

The amendment clarifies the search procedures currently in effect based on Supreme Court case law. Primarily, this is a change in the definition of probable cause and reasonable suspicion, and there is no procedural changes. The persons affected by this amendment are offenders and visitors to the prison system. As this amendment simply clarifies definitions associated with when searches can be conducted, there is no financial impact on affected persons. The change proposed will not increase or decrease the extent or number of searches conducted by the department.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule relates to search authority of visitors to correctional institutions and the public, typically those associated with probationers and parolees. There are no changes to the circumstances surrounding these searches, as the amendments simply reflect changes in an evolving body of case law. The primary impact of the amendment is to clarify the rule to separate searches in correctional institutions from searches in the public. As such, there are no anticipated impacts on the private sector.

Thomas Patterson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Corrections
Administration
14717 S MINUTEMAN DR
DRAPER, UT 84020-9549

Direct questions regarding this rule to:

• Michael Haddon at the above address, by phone at 801-545-5913, by FAX at 801-545-5726, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/01/2011

This rule may become effective on:

08/15/2011

Authorized by:

Thomas Patterson, Executive Director

R251. Corrections, Administration.

R251-710. Search.

R251-710-1. Authority and Purpose.

(1) This rule is authorized under Section s 63G-3-201 and 64-13-10, and Subsections 64-13-14(1)[,] and 64-13-17(2) , of the Utah Code.

(2) The purpose of this rule is to provide the Department's policy, procedures, and requirements for conducting searches.

 

R251-710-2. Definitions.

(1) "Contraband", for purposes of this rule, means:

(a) materials, substances or other items not approved by the Department, or which are in numbers or amounts that are not approved, and which are otherwise known as regular contraband;

(b) materials, substances or other items possessed in violation of state or federal law and which are otherwise known as illegal contraband; or

(c) items that are not illegal, but are not authorized for an inmate to possess including items made from scraps of paper, wood, plastic, metal, wire, etc. and which are otherwise known as nuisance contraband.

(2) "Exigent circumstances" means [a situation wherein reasonable cause exists to believe that a clear and present danger to life and limb exists]circumstances that would cause a reasonable person to believe that search is necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

(3) "Prison" means Utah State Prison in Draper and Central Utah Correctional Facility in Gunnison.

(4) "Probable cause" means sufficient knowledge of articulable facts or circumstances [to]that would lead a reasonable person to conclude that another person has committed, is committing, or is about to commit a crime or a violation of a legally enforceable policy or rule.

(5) "Public" means persons constituting the general population of a state.

(6) "Reasonable suspicion" means suspicion based on[sufficient knowledge of] specific articulable facts [or]drawn from the totality of the circumstances [that would lead a reasonable person to suspect that there may be criminal activity and that the suspected person may be involved in that criminal activity]facing the officer at the time.

(7) "Visitor" means members of the general public entering prison property.

 

R251-710-3. Policy.

(1) General Regulations

It is the policy of the Department that:

(a) search and seizure activities shall only be carried out by lawful means[;].

[(b) real property, places of business and residences, with legally recognized exceptions shall be searched only with a search warrant, or reasonable cause and voluntary consent;

] (2) Visitor Search

It is the policy of the Department that:

(a) the person, personal property, and/or vehicle of visitors are subject to limited, less-invasive searches by Department personnel, such as dog sniffs, metal detectors, and viewing the inside of vehicles, including trunks and compartments, as a condition of entering and remaining on the premises of the prison;

(b) an officer may seize contraband or evidence pertinent to an ongoing investigation;

(c) more invasive searches of the person, personal property, and/or vehicle of visitors may be conducted, and contraband and evidence pertinent to an ongoing investigation seized therefrom, by Department personnel upon reasonable suspicion coupled with voluntary consent;

(d) any visitor who refuses to give consent to a search based upon reasonable suspicion may be denied entrance and required to leave the premises of the prison;

(e) the alert of a police service dog shall constitute probable cause and an involuntary search may be legally conducted;

(f) mandatory searches shall be conducted of all vehicles leaving the prison; vehicle trunks and compartments shall be searched prior to exit;

(g) any person who refuses to give consent to a search of their vehicle upon exiting prison property shall have their vehicle detained until a regularly scheduled institutional count has cleared;

[(c)](h) notice shall be posted at the entrance to the prison that persons, their property and vehicles are subject to search while on prison property;

[(d)](i) an officer may assume the driver of a vehicle is the proprietary possessor and has the authority to consent to a search of the vehicle;

[(e)](j) vendors, construction workers, Department personnel, or other visitors whose presence is necessary and important to prison operation may have contraband confiscated and returned upon exiting prison property, may be asked to leave prison property, or may be arrested;

[(f)](k) all vehicles entering through a secure perimeter gate shall undergo a thorough search for contraband; discovery of contraband may result in arrest;

[(g)](l) mandatory searches shall be made of all vehicles accessing the double fence secure perimeters of the facilities; and

[(h) mandatory searches shall be conducted of all vehicles leaving the prison; vehicle trunks and compartments shall be searched prior to exit;

(i) the alert of a police service dog shall constitute probable cause and an involuntary search may be legally conducted;

(j) an officer may search and seize contraband or evidence without a warrant, in any public place open to public view; and

(k)](m) a visitor to the prison who has an outstanding warrant may be arrested and searched or refused entry to the prison.

[(2)](3) [Visitor/]Public Search[.]

It is the policy of the Department that:

(a) the person and property of [visitors and] members of the general public may be searched, and contraband and evidence pertinent to an ongoing investigation seized therefrom, by Department personnel pursuant to the following limitations:

(i) their person, clothes, personal property, vehicle and residence based upon [reasonable suspicion coupled with] voluntary consent;

(ii) their person, clothes, and personal property immediately associated with their person[, and vehicle] may be involuntarily searched;

(A) [based upon probable cause]to the extent necessary for an officer to determine if a person is carrying weapons, if the officer has a reasonable suspicion that the person is armed and presently dangerous to the officer or others;

(B) incident to lawful arrest;

(C) pursuant to a valid search warrant; or

(D) under exigent circumstances;[ or

(E) pursuant to a vehicle inventory incident to the lawful impound thereof;]

(iii) their vehicle may be involuntarily searched;

(A) based upon probable cause if the vehicle is readily mobile;

(B) incident to lawful arrest if the arrestee can access the passenger compartment of the vehicle or if failure to search could result in the loss of evidence pertaining to the crime underlying the arrest;

(C) pursuant to a valid search warrant; or

(D) pursuant to a vehicle inventory incident to the lawful impound thereof;

[(iii)](iv) their residence may be involuntarily searched;

(A) pursuant to a valid search warrant;

(B) in the form of a protective sweep under exigent circumstances; or

(C) at the time of, or incident to, a lawful arrest of the owner or occupant thereof, but only that portion of the residence and personal property therein which is in the immediate control of the arrestee at that time[;].[

(b) any visitor who refuses to give consent to a search based upon reasonable suspicion may be denied entrance and required to leave the premises of the prison; and

(c) any person who refuses to give consent to a search of their vehicle upon exiting prison property shall have their vehicle detained until a regularly scheduled institutional count has cleared.]

 

KEY: corrections, search and seizure, security measures, prisons

Date of Enactment or Last Substantive Amendment: [December 27, 2000]2011

Notice of Continuation: January 31, 2007

Authorizing, and Implemented or Interpreted Law: 64-13-7; 64-13-10; 64-13-14(1); 64-13-17(2)