Library: Policy

OKDHS:2-7-4. Search warrants, arrests, and criminal process

Revised 11-1-14

(a) Policy. Oklahoma Department of Human Services (DHS) Office of Inspector General (OIG) policy ensures all searches with a warrant, arrests with or without a warrant, and services of other pieces of criminal process are completed in compliance with constitutional guidelines and applicable statutes and case decisions.

(b) Definitions. The following words and terms, when used in this Section, shall have the following meanings, unless the text clearly indicates otherwise:

(1) "Criminal process" means writs, summonses, mandates, warrants, or other documents issuing from a court of law compelling a person to answer for a crime.
(2) "Probable cause" means a reasonable amount of suspicion, supported by circumstances sufficiently strong enough to justify a prudent and cautious person's belief, that certain facts are probably true.

(1) An agent may obtain a search warrant by presenting a completed affidavit to a judge. The affidavit for a search warrant must contain:
- (A) the subject's name and aliases, if known;
- (B) a description of the area to be searched;
- (C) a list of items for which the search is being made;
- (D) a synopsis of why the search warrant is needed; and
- (E) the probable cause for a search warrant.
(2) To have a search warrant signed, there must be probable cause to believe that the items for which the search is made:
- (A) have been used in the commission of a crime, are evidence of a crime, or are illegal; and
- (B) are located at the place stated in the warrant.
(3) A judge may approve a search warrant by telephone or email per Sections 1223.1 and 1225 of Title 22 of the Oklahoma Statutes (22 O.S. §§ 1223.1 and 1225). The agent may only obtain a search warrant by telephone or email when an emergency situation exists and a judge is not immediately available to sign the warrant.
- (A) To obtain telephone approval to make a search, the agent follows the same procedures described in this Section with some exceptions.
  - (i) The agent reads the affidavit verbatim to the judge by telephone.
  - (ii) When approved by the judge, the agent prints the judge's name and the exact time and date of approval on the search warrant.
  - (iii) As soon as possible after service of the warrant, the agent provides the affidavit for the search warrant and the actual search warrant to the judge. The judge signs the warrant and documents the exact date and time of the verbal approval on the warrant.
  - (iv) The telephone call in which approval is given must be recorded with the permission of the judge. If permission is not given, then no telephonic warrant may be obtained. When permission is given, the recording of the call is later transcribed by a court reporter, and the transcription is deemed to be an affidavit under Oklahoma law.
- (B) To obtain email approval to make a search, the agent follows the same procedures described in this Section with some exceptions.
  - (i) The agent submits the affidavit to the judge by email. The submitted affidavit contains a notarized acknowledgement or the agent swears to the affidavit by telephone.
  - (ii) When approved, the judge signs a printed copy of the affidavit and proposed warrant and transmits the documents back to the agent by email. The signed copy received by the agent constitutes a search warrant.
  - (iii) As soon as possible after service of the warrant, the agent provides the printed copy of the affidavit received by the agent and the actual search warrant to the judge.
  - (iv) When the judge approves the affidavit and proposed warrant by return email communication to the agent without transmitting a signed copy of the documents, the agent includes a printed copy of the approval email communication and the actual search warrant to the judge after service of the warrant.
  - (v) When the judge modifies the submitted affidavit and proposed warrant, the agent does not attempt to serve the warrant until the judge transmits a copy of the modified document back to the agent by email.

(d) Searches.

(1) Only a commissioned agent is authorized to serve search warrants.
(2) Unless specified in the warrant, an agent must:
- (A) announce that he or she is a law enforcement officer and is present to serve a search warrant;
- (B) knock on the door before announcing himself or herself when the warrant is for a residence; and
- (C) only serve a search warrant during the hours of 6:00 a.m. to 10:00 p.m.
(3) An agent may break open an outer or inner door or window of a house in order to serve a search warrant when the agent has knocked and announced that he or she is a law enforcement officer and his or her purpose, but has been refused admittance.
(4) Once inside the search area, an agent may only search for and take as evidence items listed on both the search warrant and affidavit.
- (A) Suspected stolen items in plain view may be checked with the National Crime Information Center (NCIC) or other applicable authorities and may be seized when verified as stolen.
- (B) Illegal to possess items in plain view may be seized as evidence of a crime when found during the search of items listed on the search warrant.
(5) An agent must comply with all applicable legal provisions in seizing any property and must not extend a search beyond the terms authorized in the warrant.
(6) Upon completion of the search, a copy of the warrant and a list of seized items are provided to the named subject or the owner of the property. When neither is available, the copy is left in a noticeable place at the property.
(7) The agent files a return on the seized property with either the judge who signed the search warrant or a judge in the judicial district where the property was found and seized within 10-calendar days from the date the warrant is served. The return is signed by the agent and includes:
- (A) the date and time warrant was obtained;
- (B) the date and time warrant was served;
- (C) a detailed list of seized items;
- (D) the name of the subject or owner of property where the items were found; and
- (E) the name of the person to whom a copy of the warrant and list of seized items was provided or a description of the place where the warrant was left.

(e) Arrest warrants.

(1) An agent may obtain an arrest warrant by presenting a completed affidavit to a judge. The judge issues an arrest warrant when he or she is satisfied that an offense has been committed and the person named is the one who committed the offense.
(2) A bench warrant is initiated by a judge directly and may be served and treated as any other arrest warrant.
(3) Warrants for arrest must contain the:
- (A) subject's name or reasonable descriptors, when the name is unknown;
- (B) offense;
- (C) date issued;
- (D) city, town, or county where issued;
- (E) signature of a judge and the judge's office or title; and
- (F) times of day when the warrant may be served, when different from times statutorily allowed.
(4) When an agent is presented with a warrant from another state for a person located in Oklahoma, the agent attempts to obtain an Oklahoma arrest warrant, whenever practicable. When it is not practicable to obtain an Oklahoma arrest warrant, the agent may still make an arrest per 22 O.S. § 1141.14 when:
- (A) there is reasonable information that the subject is charged in another state with a crime punishable by death or imprisonment for a term exceeding one year; and
- (B) when arrested, the subject is taken before a judge with all practicable speed and a complaint is made against the subject under oath setting forth the grounds for the arrest.
(5) Before attempting to serve a warrant from another state, the agent contacts the issuing authority to confirm the other state is willing to extradite the subject if an arrest is made. When the state is not willing to extradite, then the agent does not make an arrest on a warrant from another state.

(f) Arrests.

(1) Only a commissioned agent is authorized to make arrests.
(2) An agent serving an arrest warrant must:
- (A) confirm the existence of the active warrant by contacting the issuing authority, even when the agent has possession of a copy of the warrant;
- (B) ensure the subject named on the warrant is the person being arrested;
- (C) comply with all legal requirements for the execution of arrest warrants;
- (D) inform the subject the agent is acting under the authority of the warrant; and
- (E) show the warrant to the subject within a reasonable time, when requested.
(3) Unless specified on the arrest warrant, the time of day that an arrest may be made is determined by the charged offense. If the charged offense is a:
- (A) felony, the arrest may be made on any day and at any time of the day or night;
- (B) misdemeanor and the subject is in a public place or on a public roadway, the arrest may be made on any day and at any time of the day or night; or
- (C) misdemeanor and the subject is not in a public place or on a public roadway, the arrest may be made only during the hours of 6:00 a.m. to 10:00 p.m.
(4) An agent may serve any warrant, except those issued for city ordinance violations, in any county of the state.
(5) An agent may request the assistance of private citizens when serving a warrant or making an arrest.
(6) An agent uses only the amount of force or restraint necessary for the arrest or detention of the subject.
(7) An agent may break open an outer or inner door or window of a dwelling house in order to make an arrest, with or without a warrant, when the agent has announced that he or she is a law enforcement officer and his or her purpose, but has been refused admittance.
(8) When making an arrest, with or without a warrant, an agent informs the subject of his or her rights per DHS:2-7-7.

(g) Arrests without a warrant.

(1) An agent may arrest a subject without a warrant:
- (A) for a public offense, committed or attempted in the agent's presence;
- (B) when the subject has committed a felony, although not in the agent's presence;
- (C) when a felony has been committed, and the agent has a reasonable cause to believe that the subject committed it; and
- (D) on a charge, made upon reasonable cause, of the commission of a felony by the arrested subject.
(2) As commissioned peace officers, agents may also make arrests without a warrant in additional situations as permitted per 22 O.S. §§ 60.9 and 196; however, agents are encouraged to defer to local law enforcement in such situations.
(3) An agent who makes an arrest without a warrant must notify the subject of the agent's authority to make the arrest and of the cause of the arrest, except when the subject is in actual commission of the offense or is pursued immediately after an escape.
(4) When making an arrest without a warrant, an agent may only search the subject and the immediate surrounding area from where the subject could gain control of a weapon or destroy evidence.

(h) Booking procedures.

(1) OIG facilities are not used for detention or holding purposes. Upon making an arrest, the agent remains with the subject until the subject is transported to the appropriate local law enforcement agency or correctional facility.
(2) The arresting agent adheres to the booking procedures established by the receiving agency or facility, including the completion of any reports required by the receiving agency or facility.
(3) A subject arrested for a felony offense is fingerprinted and photographed by the receiving agency or facility.

(i) Discretion and alternatives to arrest.

(1) An agent's discretion not to arrest is greatly limited because arrests are normally made for felonies and are made after the issuance of an arrest warrant.
(2) An agent may delay an arrest pending grand jury action or when a delay allows the accumulation of additional evidence when the investigation warrants such action.
(3) An agent or other OIG employee must never promise a subject that he or she will not be arrested or prosecuted and must not make deals with a subject to avoid arrest or prosecution without prior district attorney approval.

(j) Diplomatic immunity. Certain foreign diplomatic and consular representatives are immune from arrest under certain conditions. All people entitled to privileges of immunity are issued identification cards either from the United States (U.S.) Department of State or by the United Nations.

(1) Ambassadors and foreign ministers, their families, and certain staff are immune from arrest for any offense.
- (A) Property and vehicles of people with immunity from arrest may not be searched, seized, or impounded.
- (B) When an agent must not make an arrest due to a person's diplomatic immunity, the agent submits a report containing the facts of the incident and the identity of the person to the U.S. Department of State.
(2) Foreign consular officers are immune from arrest except when the charge is a felony and an arrest warrant has been issued.
- (A) Honorary consular officers, consular employees, and consular families and staff are not immune from arrest.
- (B) In situations involving consular officers, employees, families, or staff, the agent submits a report containing the facts of the incident and the identity of the person(s) to the U.S. Department of State.

(k) Criminal process reporting.

(1) For each warrant or other criminal process document served by OIG, the agent includes certain information, when known, in a unique entry on the OIG control database. Such information includes, the:
- (A) date and time the document was received;
- (B) type of process;
- (C) nature of the document;
- (D) source of the document;
- (E) name of the party served;
- (F) name of the agent assigned to perform the service;
- (G) date of the assignment;
- (H) court docket number; and
- (I) date service is due.
(2) When service of a warrant or other criminal process document is attempted or completed, the agent updates the original OIG control database entry. Updated information includes, the:
- (A) date and time service was completed or attempted;
- (B) name of the agent completing or attempting service;
- (C) name of the person on whom legal process was served;
- (D) the method of service or the reason service was not completed; and
- (E) the address where service was completed or attempted.