UNC Police: General Order 01-06R6 - Departmental Authority

Title

UNC Police: General Order 01-06R6 - Departmental Authority

Document Information

Purpose

The purpose of this general order is to define the legally mandated authority vested in sworn personnel of the University of North Carolina at Chapel Hill Police Department (UNC-CH Police Department).

Policy

The Constitution of the United States guarantees every citizen certain basic rights that may not be infringed upon by the government. Such guarantees place limitations on the authority of police officers to enforce the laws of the nation, state, city, and county. An officer's authority is limited by other legal documents, such as the state constitution, federal and state statutes, and locally enacted ordinances. Therefore, officers of the UNC-CH Police Department must be aware of the guidelines set forth in this directive concerning the limits of law enforcement authority.

Units Affected

UNC-CH Police Department Sworn and Non-Sworn Personnel

References/Forms

• 18 U.S. Code §926B Carrying of Concealed Firearms by Qualified Law Enforcement Officers
• Arrest, Search, and Seizure in North Carolina, Robert L. Farb
• Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142, 145 (1964)
• Miranda v. Arizona, 384 U.S. 436 (1966)
• North Carolina General Statute §14-269 Carrying Concealed Weapon
• North Carolina General Statute §15A-401 Arrest by Law Enforcement Officer
• North Carolina General Statute §15A-402 Territorial Jurisdiction of Officers to Make Arrests
• North Carolina General Statute §116-40.5 Campus Law Enforcement Agencies
• North Carolina General Statute §116-44.5 Special provisions applicable to identified constituent institutions of The University of North Carolina
• North Carolina General Statute §116-44.4 Regulation of Traffic and Parking and Registration of Motor Vehicle
• State v. Crawford, 125 N.C. App. 279, 480 S.E. 2d 422 (1997)
• UNC-CH Police Department Consent to Search Form
• UNC-CH Police Department General Order 01-01 Use of Force
• UNC-CH Police Department General Order 01-02 Firearms Policy
• UNC-CH Police Department General Order 01-07 Defensive Weapons
• UNC-CH Police Department General Order 01-08 Carrying Concealed Handguns by Off-duty Officers
• UNC-CH Police Department General Order 04-01 Patrol Operations
• UNC-CH Police Department General Order 05-03 Temporary Detention and Arrestee Procedures
• UNC0CH Police Department General Order 06-03 Body Worn Cameras
• UNC-CH Police Department General Order 06-07 Advice and Waiver of Rights
• UNC-CH Police Department Impound Form
• UNC-CH Police Department Rights Waiver Form
• United States Constitution Fourth Amendment Search and Seizure Laws
• United States Constitution Fifth Amendment

Definitions and Descriptions

Expectation of Privacy: A person must demonstrate that they want to preserve something as private and the person’s expectation, viewed objectively, must be justified under the circumstances.

Fourth Amendment: Law of search and seizure that protects an individual’s rights to privacy, prevents unreasonable seizures.

Reasonable Suspicion: Does not deal with hard certainties but with probabilities, based on all facts known at the time of the encounter and these facts and consideration of mode or patterns of operation of certain kinds of human behavior.

Procedures

I. Legal Authority to Carry/Use Weapons

Sworn personnel are authorized to carry and use weapons pursuant to the implied authority granted by the State of North Carolina. North Carolina General Statute (N.C.G.S.) §15A-401, subsections (d)(1) and (d)(2) grant sworn law enforcement officers the right to use force, including deadly force, therefore implying the right to carry and or use weapons in the performance of their duties. N.C.G.S.§14-269, subsection (b)(2) and Federal Code 18 USC 926B allow law enforcement officers to carry and/or use concealed weapons. Non-sworn personnel authorized to carry/use any department issued weapons in the performance of their duties are permanent UNC-CH Police Department security guards. The only weapon they utilize during their duties is the oleoresin-capsicum (OC) spray issued by UNC-CH Police Department. No other non-sworn personnel are authorized to possess or use UNC-CH Police Department-issued weapons on campus.

II. Authority to Enforce Laws

1. N.C.G.S. §116-40.5 grants the Board of Trustees of any constituent institution of the University of North Carolina the authority to establish a campus law enforcement agency and employ campus police officers. Pursuant to this statute, the Board of Trustees of UNC-CH established the UNC-CH Police Department. The UNC-CH Police Department is a legally appointed entity whose sworn personnel have all the powers of law enforcement officers generally.
2. N.C.G.S. §116-44.4 grants the Board of Trustees of any constituent of the University of North Carolina (UNC) the authority to adopt ordinances which prohibit, regulate, direct, control, and limit pedestrian or vehicular traffic and the parking of motor vehicles and other modes of conveyance on the campus, and to adopt ordinances which provide for the registration of motor vehicles operated on the campus by students, faculty members, and employees. N.C.G.S. §116-44.5 gives the Board of Trustees of UNC-CH the authority to, by ordinance, regulate, prohibit, or limit parking of motor vehicles on certain public streets in the Town of Chapel Hill.
3. N.C.G.S. §116-40.5 requires that officers of the UNC-CH Police Department, upon entering their office, take an oath. They swear to support the Constitution of the United States and the Constitution of the State of North Carolina.

III. Limitations on Law Enforcement Authority

Limitations on law enforcement authority are derived from statutes; federal, state, and local judicial interpretations of laws; opinions of the North Carolina Attorney General; UNC-CH Police Departmental policies, rules, and regulations; and city and county administrative decisions.

1. Statutory Limitations
   1. N.C.G.S. §116-40.5 (a) limits the territorial jurisdiction of the UNC-CH Police Department to all property owned or leased to the University and that portion of any public road or highway passing through such property and immediately adjoining it, wherever located.
   2. N.C.G.S. §116-40.5 (b) provides that the Town of Chapel Hill and UNC-CH may enter into
      a joint agreement to extend the territorial jurisdiction of campus police officers beyond the
      territorial jurisdictional boundaries established by N.C.G.S. §116-40.5 (a).
   3. N.C.G.S. §15A-402 authorizes duly commissioned campus law enforcement officers to arrest outside their territorial jurisdiction for offenses committed in their territorial jurisdiction during the suspect’s immediate and continuous flight from the commission of a crime.
2. Judicial Limitations
   Courts constantly interpret laws that place limitations on the authority of police officers. Some common judicial limitations include Miranda Warnings, rulings on search and seizure, and eyewitness identification.
   1. Limitations Imposed once a Miranda Warning is read and when it is read:
      1. When a person is taken into custody and subject to interrogation, Miranda Warnings must be given. A person is in custody, if the person is not free to leave, and reasonably believes he is not free to leave the police officer's presence.
      2. If a suspect feels free to leave the police officer's presence, a court of law looks at the circumstances of the interview.
      3. If officers conduct routine, preliminary questioning near or at the scene of an investigation, no "custodial interrogation" exists and Miranda Warnings are NOT required.
      4. Miranda Warnings must be given when the suspect is in custody, believes they cannot leave, and is subject to interrogation.
      5. In order to achieve uniformity in giving Miranda Warnings, UNC-CH Police Department officers advise suspects, verbatim:
         1. You have the right to remain silent.
         2. Anything you say can and will be used against you in a court of law.
         3. You have the right to talk to a lawyer and have him present while you are being questioned.
         4. If you cannot afford to hire a lawyer, one will be appointed to represent
            you before any questioning, if you wish one.
      6. Juveniles are given the following version of Miranda Warnings, verbatim:
         1. You have the right to remain silent.
         2. Anything you say can and will be used against you in a court of law.
         3. You have the right to talk to a lawyer and have him present while you are being questioned.
         4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.
         5. You have the right to have a parent, guardian, or custodian present during questioning.
         6. UNC-CH Police officer asks the following questions and obtains an affirmative reply for each question:
            1. Do you understand each of these rights I have explained to you?
            2. Having these rights in mind, do you wish to talk to us now?
      7. If a person wishes to waive their rights, the UNC-CH police officer has the suspect sign the UNC-CH Police Department Rights Waiver Form.
   2. Limitations on search and seizure
      1. The Fourth Amendment guarantees protection against unreasonable searches and seizures. The United States Supreme Court is constantly interpreting the Fourth Amendment as it applies to police conduct. Illegally seized items of evidence are not admitted in court.
      2. To ensure that Fourth Amendment rights are protected, officers obtain search warrants upon Probable Cause, in appropriate criminal cases, except the following:
         1. Consent Searches: The consent must be voluntarily given by someone who has the authority to allow the property to be searched. If consent is voluntarily given, the officer ensures that the verbal consent authorizing the search is recorded on their body worn camera (BWC) or on the BWC of another officer who is also present prior to the search being conducted.
            
            If no officer on scene has a functioning BWC the officer must have the individual giving consent sign a UNC-CH Police Department Consent to Search Form.
            
            UNC-CH police officers must remember that consent may be withdrawn at any time, in which case the search must be discontinued immediately until a search warrant is obtained.
         2. Exigent Circumstances: UNC-CH police officer may enter a property to search for evidence of a crime without a search warrant or consent, when they have Probable Cause and exigent circumstances exists.
            
            Some factors considered when determining when Exigent Circumstances exist are as follows:
            1. Whether officers have probable cause to obtain a search warrant before the exigency was created;
            2. Whether UNC-CH police officers have an objectively reasonable belief that destruction or removal of evidence was imminent;
            3. The likelihood that violence might be committed against UNC-CH police officers;
            4. The gravity of the offense for which the officers are searching for evidence; or
            5. How long would it take to obtain a search warrant.
   3. Plain View: When officers are in a public place or another area, that is not protected by the Fourth Amendment, or if the officers have legally intruded on someone’s privacy, what they see, smell, touch and hear generally, is not a search of the Fourth Amendment.
      
      Knowledge gained by the sense of sight is commonly known as plain view observation. UNC-CH police officers may need further justification to take possession of or look for the evidence they have seen in Plain View.
   4. Abandoned Property: A person cannot assert a violation of a legitimate Expectation of Privacy if they have intentionally relinquished an interest in the property.
   5. Inventory Searches of Vehicles: UNC-CH police officers must conduct an inventory search upon any seizure/impounding of a vehicle for safekeeping. Although these searches must be reasonable, UNC-CH police officers do not need a search warrant, because the purpose of the search is not to locate evidence.
      
      UNC-CH police officers conducting impoundment searches must complete the UNC-CH Police Department Impound Report to record all objects found in the compartment (including the glove box and console) and trunk (if the vehicle is unlocked and/or keys are available).
      
      The items having evidentiary value and firearms must be placed in an evidence locker prior to the officer’s end of shift. Paper currency and jewelry must be seized and placed in evidence if the person in charge of the vehicle is unable or unwilling to take possession.
      
      UNC-CH Police officers must open closed, but not locked, containers, if the contents cannot be ascertained from the exterior of the container. UNC-CH police officers must not open locked containers in the course of an inventory search.
      
      A “sniff” by a K-9 is not a search. UNC-CH police officers may have a K-9 sniff an impounded vehicle and then seek a search warrant for examination of the entire vehicle.
   6. Incident to Arrest: Search upon the arrest of an individual, is limited to the area and objects within the individual’s immediate control.
   7. Weapons Frisk: UNC-CH police officers may pat down a person for weapons when they have Reasonable Suspicion that the person has a weapon and presents a danger to UNC-CH police officers or others.
   8. Crime Scene Search: UNC-CH police officers may enter s structure without a warrant when necessary to save life, to prevent injury, or to protect property. They may also search for any victims or suspects that may need medical assistance. If evidence may dissipate or be destroyed while a search warrant is being obtained, a warrantless search or seizure of the evidence is permissible.
      
      Once the scene has been rendered safe, then a search warrant or consent must be obtained to process the scene for evidence.
   9. Carroll Doctrine: A vehicle can be searched without a search warrant if there is Probable Cause to be believe that there is evidence present in the vehicle.
   10. Probable Cause: The United State Supreme Court defines probable cause to arrest as follows:
       
       Whether, at the moment the arrest was made, the facts, and circumstances within the officer’s knowledge and which the officer had reasonably trustworthy information was sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense. (Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142, 145 (1964)
3. Compliance with constitutional requirements during criminal investigations when conducting criminal investigations, officers will take precautions necessary to ensure that all persons involved, are afforded their constitutional safeguards. Officers ensure the following:
   1. Statements or confessions are voluntary;
   2. Individuals are advised of their rights, in accordance with this directive;
   3. Arrestees are taken promptly before a magistrate, for formal charging; and
   4. Persons accused or suspected of a criminal violation, and are being interrogated are afforded an opportunity to consult with an attorney.
   5. Limitations on intelligence activity:
      1. UNC-CH Police Departmental intelligence gathering activities is limited to information concerning criminal conduct that relates to activities that present a threat to the community.
      2. UNC-CH Police Department personnel and equipment are only used in conjunction with intelligence gathering activities, in full compliance with all laws, and only with the advance approval of the patrol commander and the Chief of Police.
      3. Intelligence information is collected, used and processed in full compliance with all laws and UNC-CH Police Department general orders (G.O.) (see Chapter 8 of the UNC-CH Police Department G.O’s).
4. Limitations on authority by the North Carolina Attorney General
   
   The North Carolina Attorney General may occasionally issue opinions to the UNC-CH Police Department that may impose limitations on officers. These areas include, but are not limited to:
   1. Prosecution of certain cases;
   2. Extradition; or
   3. Enforcement of certain statutes pending opinions from the North Carolina Attorney General's office.
5. Limitations on authority by the Town of Chapel Hill, Orange County, or UNC-CH Chief of Police
   
   Limitations on police enforcement actions may be imposed by the Town of Chapel Hill, Orange County, or UNC-CH Chief of Police concerning:
   1. The enforcement of Town of Chapel Hill and Orange County ordinances; or
   2. UNC-CH Police Department policies, rules, and regulations concerning the use of force, etc.
6. Changes in laws/interpretation limitations
   
   Periodically North Carolina General Statutes change, and criminal cases are interpreted, in a way that may impose new limitations on police authority, remove or alter existing limitations.