FEDERAL LAW ENFORCEMENT 

TRAINING CENTER

GLYNCO, GEORGIA

LEGAL DIVISION

HANDBOOK

2009
FLETC

LEGAL DIVISION 

WEB SITE

www.fletc.gov/legal

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THE INFORMER 

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Table of Contents

vii

Table of Contents

(Clicking on the Chapter will take you directly to that material)

Chapter One –

Authority and Jurisdiction of Federal Land 

Management Agencies ...................................1

Chapter Two – Conspiracy and Parties.............33

Chapter Three – Constitutional Law.................55

Chapter Four – Courtroom Evidence................93

Chapter Five – Courtroom Testimony............127

Chapter Six – Criminal Law............................143

Subpart A – Assault....................................147

Subpart B – Bribery....................................151

Subpart C – Federal Firearms Violations....155

Subpart D – Federal Drug Offenses.............167

Subpart E – The Entrapment Defense........171

Subpart F – False Statements....................177

Subpart G – Theft......................................181

Subpart H – Obstruction of Justice...........189

Subpart I – Federal Fraud Statutes............201

Chapter Seven –

Electronic Law and Evidence.....................217

Chapter Eight –

Federal Court Procedures..........................249
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Chapter Nine – Fourth Amendment...............303

Chapter Ten –

Government Workplace Searches..............415

Chapter Eleven – Officer Liability..................431

Chapter Twelve –

Searching and Seizing Computers.............459

Chapter Thirteen –

Fifth and Sixth Amendments.....................481

Chapter Fourteen – Use of Force...................511

Index

Contributors
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 Authority and Jurisdiction of

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Chapter One

Authority and Jurisdiction of 

Federal Land Management Agencies

I. INTRODUCTION.....................................................................2

II. SOURCES OF AUTHORITY AND JURISDICTION .............................2

III. TYPES OF JURISDICTION ........................................................4

IV. TERRITORIAL JURISDICTION...................................................4

A. Jurisdiction Over a Particular Geographic Area..................... 4

1. Exclusive Jurisdiction...................................................... 5

2. Concurrent Jurisdiction................................................... 5

3. Proprietary Jurisdiction ................................................... 5

B. Special Maritime and Territorial Jurisdiction ........................ 6

C. Agency Specific Territorial Jurisdiction ................................. 8

V. SUBJECT MATTER JURISDICTION...........................................10

A. Specific Statutory Subject Matter Jurisdiction .................... 10

1. National Park Service..................................................... 11

2. USDA Forest Service ...................................................... 11

3. U. S. Fish and Wildlife Service (USFWS)......................... 11

4. Tennessee Valley Authority (TVA)................................... 11

5. Bureau of Land Management (BLM)............................... 12

6. National Marine Fisheries .............................................. 12

7. United States Park Police............................................... 12

8. DOD Conservation Officers or Rangers .......................... 12

9. Bureau of Reclamation Law Enforcement Officers.......... 13

B. Cross Designation of Officers .............................................. 13

C. Jurisdiction Over State Offenses ......................................... 13

D. Assimilative Crimes Act - 18 U.S.C. § 13............................. 13

E. State Peace Officer Authority............................................... 14

F. Cross-Designation as State or Local Officer......................... 14

G. Citizen‘s Arrest or Detention Authority................................ 15

VI. THE CODE OF FEDERAL REGULATIONS (CFR)..........................15

A. Enabling Legislation............................................................ 15

B. Examples ............................................................................ 17

1. 36 C.F.R. 2.1 Preservation of Natural, Cultural and 

Archeological Resources................................................. 17

2. 36 C.F.R. 2.2 Wildlife Protection ................................... 19

3. 36 C.F.R. 2.3 Fishing.................................................... 21
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4. 36 C.F.R. 2.31 Trespassing, Tampering and Vandalism 23

5. 36 C.F.R. 2.34 Disorderly Conduct ............................... 24

6. 36 C.F.R. 3.6 Prohibited Operations ............................. 25

7. 36 C.F.R. 4.2 State Law Applicable ............................... 26

VII. SIGNIFICANT STATUTORY PROVISIONS....................................27

A. Lacey Act ............................................................................ 27

B. Endangered Species Act...................................................... 27

C. Marine Mammal Protection Act (MMPA) of 1972.................. 28

D. Archaeological Resources Protection Act of 1979................. 29

E. Bald Eagle Protection Act of 1940 ....................................... 29

VIII. ADMINISTRATIVE INSPECTION AUTHORITY...............................30

36 C.F.R. 3.5 Inspections.............................................. 30

*****

I. Introduction

This course examines the sources and scope of the 

authority and jurisdiction of federal land management law 

enforcement agencies. It includes federal regulations and 

administrative inspection authority and will address both 

territorial and subject matter jurisdiction. The course also 

examines jurisdictional issues related to selected offenses that 

involve Federal Land Management Agencies.

II. Sources of Authority and Jurisdiction

The basic source of all federal law is the United States 

Constitution. While the Fourth Amendment and many other 

constitutional provisions affect law enforcement, there are also 

some less well known provisions that impact the jurisdiction of 

federal agencies. The Tenth Amendment reserves the power not 

expressly given to the federal government in the Constitution to 

the States or to the people. In section 5 of Article I exclusive 

federal jurisdiction is established over forts and many other 

federal facilities. Section 3 of Article IV gives Congress the 

power to make rules and regulations regarding the territory and 

other property belonging to the United States.
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The primary source of authority and jurisdiction for 

federal land management agencies is federal statutes. The 

easiest method to find federal statutes is using the U.S. Code 

citation to the statute. For example, section 3 of Title 16 of the 

U.S. Code is referred to 16 U.S.C. § 3. If the law passed by 

Congress changes many individual statutory provisions, the 

easiest way to find the full text of the law is the Public Law 

version. For example, the USA PATRIOT Act amended many 

federal statutes. It would be a significant task to find each one 

individually. P.L. 107-56 contains the full text of the USA 

PATRIOT Act.

Some federal statutes provide authority for the 

appropriate agency to adopt regulations to implement their 

statutory authority. This is called ―enabling legislation‖ 

because it authorizes the agency to adopt regulations for those 

areas specified in the statute. Without such enabling 

legislation, the agency would not have authority to adopt 

regulations. Some of these regulations can be criminal in 

nature and enforced as misdemeanors in U.S. courts if the 

enabling legislation provides such authority.

During the process of adopting regulations, proposed 

regulations and the final regulation are published in the Federal 

Register.

Regulations that are adopted under the authority of the 

appropriate enabling legislation are published annually in the 

Code of Federal Regulations (C.F.R.). Citation to the C.F.R. is 

similar to the U.S. Code. For example, a regulation governing 

hitchhiking on any National Park Service property is found at 

36 C.F.R. 4.31.

Occasionally, other sources of authority, such as treaties, 

may apply, particularly in relation to Indian lands and 

jurisdiction over coastal waters.
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III. Types of Jurisdiction

There are two types of jurisdiction that govern the 

authority of law enforcement agencies: Territorial and subject 

matter jurisdiction. Territorial jurisdiction relates to law 

enforcement authority based upon the geographic location of 

the offense. Subject matter jurisdiction relates to the specific 

offenses over which the particular law enforcement agency has 

authority. Some agencies have general subject matter 

jurisdiction over all federal criminal offenses, while others have 

limited subject matter jurisdiction over certain offenses only.

IV. Territorial Jurisdiction

The concept of territorial jurisdiction actually has three 

components in federal law. The first type of territorial 

jurisdiction relates to what authority the federal government 

has over the particular location involved. The second type 

relates to crimes that must occur within the special maritime 

and territorial jurisdiction (SMTJ) of the United States. The 

third type of territorial jurisdiction relates to geographic 

limitations placed upon an agency‘s law enforcement officers by 

the enabling legislation or agency regulations.

A. Jurisdiction Over a Particular Geographic Area

There are three general methods through which the 

federal government may acquire jurisdiction over a physical 

area. The state may grant land within the jurisdiction of the 

state to the federal government. Whether the state reserves any 

jurisdiction also within that land is determined by the grant 

from the state. A second method is for the federal government 

to assume exclusive jurisdiction over land purchased by the 

federal government with the consent of the state legislature. 

Since 1940, neither exclusive nor concurrent jurisdiction is 

automatic; the federal government has to expressly accept 

exclusive or concurrent jurisdiction. The third method is for the 

federal government to simply buy or condemn land in a state for 

a federal purpose without any involvement of the state.
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The method of acquisition of the property determines the 

type of federal jurisdiction that applies to that particular parcel 

of land. The three types of federal jurisdiction are exclusive, 

concurrent, and proprietary.

1. Exclusive Jurisdiction

In areas of exclusive jurisdiction, only the federal 

government has law enforcement authority. This occurs when 

the federal government has received, through one of the 

methods outlined above, all of the authority of the state on a 

certain tract of land contained within the state‘s borders. With 

exclusive jurisdiction, no reservations have been made to the 

state, except that state and local officers have the authority to 

serve civil and criminal process, such as arrest warrants, 

resulting from activities that occurred outside the area of 

exclusive jurisdiction.

2. Concurrent Jurisdiction

Concurrent jurisdiction exists when both the state and 

federal governments have authority over a particular area. 

Usually this occurs when a state has ceded land to the United 

States, but has reserved to itself the right to exercise its state 

authority. In these jurisdictions, both the state and federal 

governments may prosecute those who violate their respective 

laws.

3. Proprietary Jurisdiction

Proprietary jurisdiction is primarily state jurisdiction, 

with exceptions for federal laws of general application and 

federal laws and regulations specifically applicable to the 

particular type of land involved. Proprietary jurisdiction exists 

when the United States has acquired some right or title to an 

area within a state‘s borders, but has not acquired any measure 

of the state‘s authority over the area. In essence, the United 

States has rights generally equivalent to a private landowner. 

In these situations, state law applies within the proprietary area 
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to the same extent that it does throughout the remainder of the 

state. However, under the Supremacy and Property Clauses of 

the United States Constitution, you may also enforce federal 

statutes or regulations enacted to protect these proprietary 

areas.

The application of a specific federal statute in proprietary 

jurisdiction generally falls into one of two categories:

(a) Statutes of General Application

Many federal statutes are applicable in any location 

where the United States has jurisdiction. Examples of these 

types of statutes include, 18 U.S.C. § 3 (Accessory After the 

Fact); 18 U.S.C. § 201 (Bribery of Public Officials and 

Witnesses); 18 U.S.C. § 371 (Conspiracy); and 18 U.S.C. § 641 

(Embezzlement and Theft of Public Money, Property or Records).

(b) Statutes Applicable to Designated Lands

There are also many federal statutes and C.F.R. 

provisions whose application is limited to designated lands 

only. Examples of these statutes include, but are not limited to, 

18 U.S.C. § 41 (Hunting, Fishing, Trapping; Disturbance or 

Injury on Wildlife Refuges); 18 U.S.C. § 1852 (Cutting or 

Removing or Transporting Timber on Public Lands of United 

States); 18 U.S.C. § 1853 (Cutting or Injuring Trees on Land 

Reserved or Purchased by the United States or Upon Any Indian 

Reservation); and 18 U.S.C. § 1854 (Trees Boxed for Pitch or 

Turpentine on Land Belonging to the United States). Some 36 

C.F.R. provisions apply to all lands within a park, regardless of 

land ownership. These violations include 36 C.F.R. 2.31 

(Trespassing); 36 C.F.R. 4.31 (Hitchhiking); and 36 C.F.R. 4.23 

(Operating a Motor Vehicle Under the Influence of Alcohol or 

Drugs).

B. Special Maritime and Territorial Jurisdiction

Some federal criminal statutes apply only in the area 
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known as the ―special maritime and territorial jurisdiction‖ of 

the United States (SMTJ). 18 U.S.C. § 7 defines these places. 

Several descriptive categories are included within the definition, 

the most significant being § 7(3). This section provides:

Any lands reserved or acquired for the use of the

United States, and under the exclusive or 

concurrent jurisdiction thereof, or any place 

purchased or otherwise acquired by the United 

States by consent of the legislature of the State in 

which the same shall be, for the erection of a fort, 

magazine, arsenal, dockyard, or other needful 

building.

As noted above, one of the areas of land which falls within 

the SMTJ is where the United States has either exclusive or 

concurrent jurisdiction over that area. Other places designated 

in the statute include:

High Seas and Other Waters: any water not within 

the boundaries of a state

Vessels owned in whole or part by the U.S., U.S. 

citizens, U.S. corporations, or any state, territory, 

district or possession of the U.S. when the vessel is 

in such waters

Includes aircraft owned in whole or in part by the 

U.S., U.S. citizens, U.S corporations, or any state,

territory, district or possession of the U.S. when the 

aircraft is flying over these waters

Waters of the Great Lakes and the St. Lawrence 

River

Applies to vessels registered, licensed or enrolled 

under U.S. laws
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Lands acquired for forts, arsenals & docks

Islands, rocks or keys containing guano if 

designated by the President

Spacecraft while in flight

(And other categories)

If offenses specify that the crime applies to the SMTJ and 

the crime was not committed in the special maritime or 

territorial jurisdiction of the United States, that offense is not 

triable in federal court.

C. Agency Specific Territorial Jurisdiction

The third category of territorial jurisdiction is agency 

specific territorial jurisdiction. Agency specific territorial 

jurisdiction is an important source of a land management 

officer‘s territorial jurisdiction. Statutes and regulations which 

apply on specific kinds of Federal land, for example, the 

National Forest, are enforceable even if there is only proprietary 

federal jurisdiction in that area. They are also enforceable in 

areas of exclusive and concurrent Federal jurisdiction.

For example:

The National Park Service has jurisdiction over 

offenses that occur within the National Park system 

or the arrest of persons fleeing from that system. 

16 U.S.C. § 1a-6.

The USDA Forest Service has jurisdiction over 

offenses that occur within the National Forest 

System or which affect the administration of the 

National Forest System. 16 U.S.C. §§ 559, 559c, 

559d.
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The Bureau of Land Management does not have 

territorial limits, but the offense must relate to the 

public lands or their resources. 43 U.S.C. § 1733(c).

The Bureau of Reclamation has jurisdiction over 

offenses that occur within a Reclamation project or 

on Reclamation lands. 43 U.S.C. § 373b.

The United States Park Police has jurisdiction 

over offenses that occur on or within roads, parks,

parkways, and other federal reservations in the 

environs of the District of Columbia. P.L. 447, Act 

of March 17, 1948; District of Columbia Code 5-

206. The environs of the District of Columbia are 

defined as including Arlington, Fairfax. Loudoun, 

Prince William, and Stafford Counties and the City 

of Alexandria in Virginia and Prince George‘s, 

Charles, Anne Arundel, and Montgomery Counties 

in Maryland. P.L. 447, Act of March 17, 1948; 

District of Columbia Code 5-208. The United 

States Park Police also has jurisdiction in New York 

City at the Gateway National Recreation Area 

(GNRA) as well as at the Statue of Liberty/Ellis 

Island National Historic Site and in San Francisco 

at the Golden Gate National Recreation Area. Cal. 

Penal Code § 830.8; NY CLS CPL § 2.15(9).

The Tennessee Valley Authority (TVA) has 

jurisdiction over offenses that occur on any lands 

or facilities owned or leased by the corporation or 

within such adjoining areas in the vicinity of such 

lands or facilities as may be determined by the TVA 

Board of Directors under statutory guidelines and 

on other lands or facilities in certain specified 

situations. 16 U.S.C. § 831c (3) (c) .

The United States Fish and Wildlife Service and 

National Marine Fisheries Service do not have 

specific geographical boundaries, except as may be 
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defined in specific statutory or regulatory provisions 

for which those agencies have subject matter 

jurisdiction. 16 U.S.C. §§ 472b, 668dd (g), 3375b.

Territorial jurisdiction of Department of Defense 

Land Management Enforcement Officers is 

determined by DOD directives or other regulations.

V. Subject Matter Jurisdiction

Subject matter jurisdiction relates to the specific offenses 

over which the particular law enforcement agency has 

authority. Statutory provisions conveying authority and 

jurisdiction to particular federal agencies may specify certain 

offenses over which that agency has subject matter jurisdiction.

As detailed below, at least four sources may grant you 

authority to make arrests. Some better justify exerting arrest 

authority than others. Listed from strongest to weakest in 

terms of justifying your making an arrest, they are: (1) specific 

Federal statutory subject matter jurisdiction; (2) Federal cross 

designation; (3) state peace officer status and state crossdesignation; and (4) citizen arrest authority. Your Federal 

arrest authority derives only from the first two sources listed 

above.

A. Specific Statutory Subject Matter Jurisdiction

Some agencies have full law enforcement power over all 

offenses, but only within the limited territorial jurisdiction of 

that agency. For example, the National Park Service has 

authority over all federal offenses committed in their presence 

or all federal felonies they have reason to believe were 

committed, as long as those offenses were committed in the 

National Park System. Other agencies, however, have specific 

statutory or regulatory authority for certain specified offenses. 

For example, the National Marine Fisheries Service has 

approximately 37 different federal laws which it enforces.
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1. National Park Service

The arrest authority for members of the National Park 

Service includes any offense against the United States 

committed in their presence, or for any felony cognizable under 

the laws of the United States if they have reasonable grounds to 

believe that the person to be arrested has committed or is 

committing such felony, provided such arrests occur within that 

system or the person to be arrested is fleeing from there to 

avoid arrest. 16 U.S.C. § 1a-6(b)(1). In addition, the National 

Park Service can conduct investigations of offenses against the 

United States committed in that system in the absence of 

investigation thereof by any other Federal law enforcement 

agency having investigative jurisdiction over the offense 

committed or with the concurrence of such other agency. 16 

U.S.C. § 1a-6(b)(3).

2. USDA Forest Service

The arrest authority for members of the Forest Service 

includes the violation of the laws and regulations relating to 

national forests and certain specific statutes. 16 U.S.C. § 559.

3. U. S. Fish and Wildlife Service (USFWS)

USFWS agents, refuge officers and wildlife inspectors 

have authority to enforce a number of wildlife-related statutes. 

See 16 U.S.C. § 668dd(g) for example. The extent of law 

enforcement authority is dependent upon the specific resource 

protection statute.

4. Tennessee Valley Authority (TVA)

TVA officers have, within their territorial jurisdiction, 

authority to make arrests without warrant for any offense 

against the United States committed in the officer‘s presence, or 

for any felony cognizable under the laws of the United States if 
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the officer has probable cause to believe that the person to be 

arrested has committed or is committing such a felony. 16 

U.S.C. § 831c-3(b)(2)(A). TVA officers normally use state peace 

officer authority to make arrests.

5. Bureau of Land Management (BLM)

BLM officers have the authority to enforce federal laws 

and regulations relating to the public lands or their resources 

and the power to make arrests without warrant or process for a 

misdemeanor with reasonable grounds to believe is being 

committed in the officer‘s presence, or for a felony if with 

reasonable grounds to believe this person has committed or is 

committing such felony. 43 U.S.C. §§ 1733(c)(1) and (2).

6. National Marine Fisheries

The arrest authority for National Marine Fisheries (NMFS) 

is dependent upon the specific statute that is being enforced.

7. United States Park Police

Officers of the United States Park Police have the same 

law enforcement authority under 16 U.S.C. § 1a-6 as National 

Park Rangers. Additional arrest authority is provided in specific 

law related to the Park Police jurisdiction in the District of 

Columbia, New York City, and San Francisco. D.C. Code 5-

201to 5-303, California Penal Code 830.8, and New York 

Criminal Procedure Law 2.15(9).

8. DOD Conservation Officers or Rangers

The specific arrest authority for DOD land management 

enforcement officers is dependent upon DOD Directives and 

other regulations.
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9. Bureau of Reclamation Law Enforcement 

Officers

Bureau of Reclamation law enforcement officers can 

arrest for any offense against the United States committed in 

their presence or any federal felony, if the arrest occurs within a 

Reclamation project or on Reclamation lands or the person to 

be arrest is fleeing from such lands to avoid arrest. 43 U.S.C. § 

373b.

B. Federal Cross Designation of Officers

In the land management enforcement context, because of 

the overlap of functions among the various agencies, officers 

will frequently be cross-sworn. For example, TVA officers may

also be commissioned USFWS officers or Game Wardens with 

the Department of the Interior. Title 16 U.S.C. § 559g permits 

other federal agency personnel to enforce forest service laws and 

permits forest service personnel to assist other federal agencies 

pursuant to appropriate agreements.

C. Jurisdiction Over State Offenses

Another source of authority for land management officers 

is state law, particularly for those officers operating primarily in 

areas of proprietary jurisdiction. Even in areas of exclusive or 

concurrent federal jurisdiction, state law may be useful where 

no federal law governs the particular conduct involved.

D. Assimilative Crimes Act - 18 U.S.C. § 131

The Assimilative Crimes Act applies state law to conduct 

occurring on federal lands. Three criteria must be met:

the United States has exclusive or concurrent 

jurisdiction

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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there is no federal law covering the conduct, and

there is an applicable state law.

Under the Act, the state law is adopted and used to 

prosecute the defendant in federal court as if it were a federal 

offense. The Act does not apply when there is a federal law that 

covers the conduct. The Act does not apply to areas of 

proprietary federal jurisdiction.

E. State Peace Officer Authority

Federal officers acquire state arrest authority in at least 

two ways. First, state peace officer status may be automatically 

conferred at the state level to all federal officers meeting 

designated criteria. Second, as discussed in the following 

section, you may be personally deputized or cross-designated. 

In some states, federal law enforcement officers of specified 

federal agencies have limited or complete state peace officer 

arrest authority. Iowa provides an example of a blanket 

designation of state peace officer status. In Iowa, all federal law 

enforcement officers with federal arrest authority and 

authorized to carry a firearm also have state arrest authority 

over indictable state offenses. Iowa Code § 804.7A. In some

states, the offense must be committed in the officer‘s presence. 

In others, a state or local agency must request assistance from 

the federal officer. Every state is different. You must know the 

law of the particular state in which you are working to 

determine whether you have state peace officer status.

F. Cross-Designation as State or Local Officer

You may individually acquire state jurisdiction by being 

deputized as a deputy sheriff or other state or local officer under 

the appropriate state law. Agency policies will govern your

ability to be deputized as a state officer.
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G. Citizen‘s Arrest or Detention Authority

The least preferred method of having state jurisdiction to 

arrest or detain a suspect may come from citizen‘s arrest or 

detention authority within that state. Some states have 

citizen's arrest authority which allows an arrest by any person 

for a felony. Some states require the crime to be committed in 

the person‘s presence while other states do not. Some states 

only permit a limited detention rather than an arrest. State 

law may limit or prohibit citizen‘s arrests for misdemeanors. In 

addition, offenses are covered may differ widely. Some states 

may allow a citizen‘s arrest for a breach of the peace but may 

differ greatly on what constitutes a ―breach of the peace‖. You

must know the law of the particular state in which you are 

working to determine whether you have citizen‘s arrest or 

detention authority. Arresting under citizen‘s arrest powers is a 

high-risk procedure and should be used as a last resort.

VI. The Code of Federal Regulations (CFR)

A. Enabling Legislation

When enabling legislation exists authorizing the 

particular federal agency to adopt regulations, most agencies 

adopt detailed regulations to implement their statutory 

authority. The enabling statutes often permit considerable 

flexibility in rule making. Final rules currently in force are 

published annually in the Code of Federal Regulations. Many of 

the violations enforced by land management law enforcement 

officers come from the regulations.

For example, the Secretary of the Interior has the 

following statutory rulemaking authority for public lands:

The Secretary shall issue regulations necessary 

to implement the provisions of this Act with 

respect to the management, use, and protection 

of the public lands, including the property 

located thereon. Any person who knowingly and 
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willfully violates any such regulation which is 

lawfully issued pursuant to this Act shall be 

fined no more than $1,000 or imprisoned no 

more than twelve months, or both. 42 U.S.C. §

1733(a).

For the National Park Service, the Secretary of Interior 

has the following statutory rulemaking authority:

The Secretary of the Interior shall make and 

publish such rules and regulations as he may 

deem necessary or proper for the use and 

management of the parks, monuments, and 

reservations under the jurisdiction of the 

National Park Service, and any violation of any 

of the rules and regulations authorized by this 

section and sections 1, 2, and 4 of this title shall 

be punished by a fine of not more than $500 or 

imprisonment for not exceeding six months, or 

both, and be adjudged to pay all costs of the 

proceeding. 16 U.S.C. § 3.

So long as Congress has authorized doing so in its 

enabling legislation, an agency can adopt and enforce criminal 

regulations in the C.F.R. If Congress has not passed enabling 

legislation, an agency cannot use the C.F.R. for enforcement 

authority. Using rule making authority is another method of 

applying state law in the federal environment in addition to 

those laws prosecuted under the Assimilative Crimes Act. 

Particularly in such areas as motor vehicle laws, hunting and 

fishing laws, and vessel operation and safety laws, agencies 

often adopt as federal regulations those state laws that do not 

conflict with federal law. The agency‘s federal enabling 

legislation sets the punishment for violation, regardless of the 

punishment under the state law.
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B. Examples

1. 36 C.F.R. 2.1 Preservation of 

Natural, Cultural and Archeological 

Resources

(a) Except as otherwise provided in this 

chapter, the following is prohibited:

(1) Possessing, destroying, injuring, defacing, 

removing, digging, or disturbing from its 

natural state:

(i) Living or dead wildlife or fish, or the parts 

or products thereof, such as antlers or nests.

(ii) Plants or the parts or products thereof.

(iii) Nonfossilized and fossilized 

paleontological specimens, cultural or 

archeological resources, or the parts thereof.

(iv) A mineral resource or cave formation or 

the parts thereof.

(2) Introducing wildlife, fish or plants, 

including their reproductive bodies, into a 

park area ecosystem.

(3) Tossing, throwing or rolling rocks or other 

items inside caves or caverns, into valleys, 

canyons, or caverns, down hillsides or 

mountainsides, or into thermal features.

(4) Using or possessing wood gathered from 

within the park area: Provided, however, that

the superintendent may designate areas 

where dead wood on the ground may be 

collected for use as fuel for campfires within 

the park area.

(5) Walking on, climbing, entering, ascending, 

descending, or traversing an archeological or 

cultural resource, monument, or statue, 

except in designated areas and under 

conditions established by the superintendent.

(6) Possessing, destroying, injuring, defacing, 

removing, digging, or disturbing a structure 
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or its furnishing or fixtures, or other cultural 

or archeological resources.

(7) Possessing or using a mineral or metal 

detector, magnetometer, side scan sonar, 

other metal detecting device, or subbottom 

profiler.

This paragraph does not apply to:

(i) A device broken down and stored or 

packed to prevent its use while in park areas.

(ii) Electronic equipment used primarily for 

the navigation and safe operation of boats 

and aircraft.

(iii) Mineral or metal detectors, 

magnetometers, or subbottom profilers used 

for authorized scientific, mining, or 

administrative activities.

(b) The superintendent may restrict hiking or 

pedestrian use to a designated trail or 

walkway system pursuant to §§ 1.5 and 1.7. 

Leaving a trail or walkway to shortcut 

between portions of the same trail or 

walkway, or to shortcut to an adjacent trail or 

walkway in violation of designated 

restrictions is prohibited.

(c)(1) The superintendent may designate 

certain fruits, berries, nuts, or unoccupied 

seashells which may be gathered by hand for 

personal use or consumption upon a written 

determination that the gathering or 

consumption will not adversely affect park 

wildlife, the reproductive potential of a plant 

species, or otherwise adversely affect park 

resources.

(2) The superintendent may:

(i) Limit the size and quantity of the natural 

products that may be gathered or possessed 

for this purpose; or

(ii) Limit the location where natural products 

may be gathered; or
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(iii) Restrict the possession and consumption 

of natural products to the park area.

(3) The following are prohibited:

(i) Gathering or possessing undesignated 

natural products.

(ii) Gathering or possessing natural products 

in violation of the size or quantity limits 

designated by the superintendent.

(iii) Unauthorized removal of natural products 

from the park area.

(iv) Gathering natural products outside of 

designated areas.

(v) Sale or commercial use of natural 

products.

(d) This section shall not be construed as 

authorizing the taking, use or possession of 

fish, wildlife or plants for ceremonial or 

religious purposes, except where specifically 

authorized by Federal statutory law, treaty 

rights, or in accordance with § 2.2 or § 2.3.

(These are typical preservation and resource protection 

rules. These rules give the Park Superintendent 

considerable discretion in some areas.)

2. 36 C.F.R. 2.2 Wildlife Protection

(a) The following are prohibited:

(1) The taking of wildlife, except by authorized 

hunting and trapping activities conducted in 

accordance with paragraph (b) of this section.

(2) The feeding, touching, teasing, frightening 

or intentional disturbing of wildlife nesting, 

breeding or other activities.

(3) Possessing unlawfully taken wildlife or 

portions thereof.
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(b) Hunting and trapping.

(1) Hunting shall be allowed in park areas 

where such activity is specifically mandated 

by Federal statutory law.

(2) Hunting may be allowed in park areas 

where such activity is specifically authorized 

as a discretionary activity under Federal 

statutory law if the superintendent 

determines that such activity is consistent 

with public safety and enjoyment, and sound 

resource management principles. Such 

hunting shall be allowed pursuant to special 

regulations.

(3) Trapping shall be allowed in park areas 

where such activity is specifically mandated 

by Federal statutory law.

(4) Where hunting or trapping or both are 

authorized, such activities shall be conducted 

in accordance with Federal law and the laws 

of the State within whose exterior boundaries 

a park area or a portion thereof is located. 

Non-conflicting State laws are adopted as a 

part of these regulations.

(c) Except in emergencies or in areas under 

the exclusive jurisdiction of the United 

States, the superintendent shall consult with 

appropriate State agencies before invoking 

the authority of § 1.5 for the purpose of 

restricting hunting and trapping or closing 

park areas to the taking of wildlife where 

such activities are mandated or authorized by 

Federal statutory law.

(d) The superintendent may establish 

conditions and procedures for transporting 

lawfully taken wildlife through the park area. 

Violation of these conditions and procedures 

is prohibited.

(e) The Superintendent may designate all or 

portions of a park area as closed to the 
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viewing of wildlife with an artificial light. Use 

of an artificial light for purposes of viewing 

wildlife in closed areas is prohibited.

(f) Authorized persons may check hunting 

and trapping licenses and permits; inspect 

weapons, traps and hunting and trapping 

gear for compliance with equipment 

restrictions; and inspect wildlife that has 

been taken for compliance with species, size 

and other taking restrictions.

(g) The regulations contained in this section 

apply, regardless of land ownership, on all 

lands and waters within a park area that are 

under the legislative jurisdiction of the United 

States.

(This regulation is typical of hunting rules, but also 

provides authority to the Park Superintendent with 

discretion in several of the rules. In section (4) it also 

adopts non-conflicting state law as federal rules.)

3. 36 C.F.R. 2.3 Fishing

(a) Except in designated areas or as provided 

in this section, fishing shall be in accordance 

with the laws and regulations of the State

within whose exterior boundaries a park area 

or portion thereof is located. Non-conflicting 

State laws are adopted as a part of these 

regulations.

(b) State fishing licenses are not required in 

Big Bend, Crater Lake, Denali, Glacier, Isle 

Royale (inland waters only), Mammoth Cave, 

Mount Rainer, Olympic and Yellowstone 

National Parks.

(c) Except in emergencies or in areas under 

the exclusive jurisdiction of the United 

States, the superintendent shall consult with 

appropriate State agencies before invoking 
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the authority of § 1.5 for the purpose of 

restricting or closing park areas to the taking 

of fish.

(d) The following are prohibited:

(1) Fishing in fresh waters in any manner 

other than by hook and line, with the rod or 

line being closely attended.

(2) Possessing or using as bait for fishing in 

fresh waters, live or dead minnows or other 

bait fish, amphibians, non-preserved fish 

eggs or fish roe, except in designated waters. 

Waters which may be so designated shall be 

limited to those where non-native species are 

already established, scientific data indicate 

that the introduction of additional numbers 

or types of non-native species would not 

impact populations of native species 

adversely, and park management plans do 

not call for elimination of non-native species.

(3) Chumming or placing preserved or fresh 

fish eggs, fish roe, food, fish parts, chemicals, 

or other foreign substances in fresh waters

for the purpose of feeding or attracting fish in 

order that they may be taken.

(4) Commercial fishing, except where 

specifically authorized by Federal statutory 

law.

(5) Fishing by the use of drugs, poisons, 

explosives, or electricity.

(6) Digging for bait, except in privately owned 

lands.

(7) Failing to return carefully and 

immediately to the water from which it was 

taken a fish that does not meet size or 

species restrictions or that the person 

chooses not to keep. Fish so released shall 

not be included in the catch or possession 

limit: Provided, that at the time of catching 
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the person did not possess the legal limit of 

fish.

(8) Fishing from motor road bridges, from or 

within 200 feet of a public raft or float 

designated for water sports, or within the 

limits of locations designated as swimming 

beaches, surfing areas, or public boat docks, 

except in designated areas.

(e) Except as otherwise designated, fishing 

with a net, spear, or weapon in the salt 

waters of park areas shall be in accordance 

with State law.

(f) Authorized persons may check fishing 

licenses and permits; inspect creels, tackle 

and fishing gear for compliance with 

equipment restrictions; and inspect fish that 

have been taken for compliance with species, 

size and other taking restrictions.

(g) The regulations contained in this section 

apply, regardless of land ownership, on all 

lands and waters within a park area that are

under the legislative jurisdiction of the United 

States.

(This particular regulation is typical of fishing rules, but 

also provides an example of two specific type provisions. 

One is section (c) which gives the Park Superintendent 

authority to close certain areas after complying with the 

conditions in the rule. The second is (f) which authorizes 

inspections for compliance with size and creel limits and 

other restrictions.)

4. 36 C.F.R. 2.31 Trespassing, 

Tampering and Vandalism

(a) The following are prohibited:

(1) Trespassing. Trespassing, entering or 

remaining in or upon property or real 

property not open to the public, except with 
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the express invitation or consent of the 

person having lawful control of the property 

or real property.

(2) Tampering. Tampering or attempting to 

tamper with property or real property, or 

moving, manipulating or setting in motion 

any of the parts thereof, except when such

property is under one's lawful control or 

possession.

(3) Vandalism. Destroying, injuring, defacing, 

or damaging property or real property.

(b) The regulations contained in this section 

apply, regardless of land ownership, on all 

lands and waters within a park area that are 

under the legislative jurisdiction of the United 

States.

(These are typical regulations related to protection of 

property.)

5. 36 C.F.R. 2.34 Disorderly Conduct

(a) A person commits disorderly conduct 

when, with intent to cause public alarm, 

nuisance, jeopardy or violence, or knowingly 

or recklessly creating a risk thereof, such

person commits any of the following 

prohibited acts:

(1) Engages in fighting or threatening, or in 

violent behavior.

(2) Uses language, an utterance, or gesture, 

or engages in a display or act that is obscene, 

physically threatening or menacing, or done 

in a manner that is likely to inflict injury or 

incite an immediate breach of the peace.

(3) Makes noise that is unreasonable, 

considering the nature and purpose of the 

actor's conduct, location, time of day or 

night, and other factors that would govern 
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the conduct of a reasonably prudent person 

under the circumstances.

(4) Creates or maintains a hazardous or

physically offensive condition.

(b) The regulations contained in this section 

apply, regardless of land ownership, on all 

lands and waters within a park area that are 

under the legislative jurisdiction of the United 

States.

(These regulations are typical of land management rules 

governing disorderly conduct.)

6. 36 C.F.R. 3.6 Prohibited Operations

The following are prohibited:

(a) Operating a vessel, or knowingly allowing 

another person to operate a vessel, in a 

reckless or negligent manner, or in a manner 

so as to endanger or be likely to endanger a 

person or property.

(b) Operating a vessel when under the 

influence of alcohol or controlled substance 

to a degree that may endanger oneself or

another person or damage property or park 

resources.

(c) Failing to observe restrictions established 

by a regulatory marker.

(d) Operating a vessel in excess of 5 mph or 

creating a wake:

(1) In areas so designated; or

(2) Within 100 feet of a diver's marker, 

downed water skier or swimmer.

(e) Operating a vessel not propelled by hand 

within 500 feet of a location designated as a 

swimming beach. This prohibition does not 

apply in locations such as rivers, channels, 

or narrow coves where passage is restricted 

to less than 500 feet. In such restrictive 
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locations, the operation of a vessel in excess 

of 5 mph or creating a wake is prohibited.

(f) Allowing a person to ride on the gunwales, 

transom, or on the decking over the bow of a 

vessel propelled by machinery, operating in 

excess of 5 mph; Provided, however, That this 

provision shall not apply under the following 

circumstances:

(1) When that portion of the vessel was 

designed and constructed for the purpose of 

carrying passengers safely at all speeds,

(2) When the vessel is being maneuvered for 

anchoring, mooring or casting off moorings.

(g) Attaching a vessel to or interfering with a 

marker, navigation buoy or other navigational 

aid.

(h) Using trailers to launch or recover vessels, 

except at designated launching sites.

(i) Launching a vessel propelled by machinery 

at other than designated launch sites.

(j) Operating a vessel propelled by machinery 

on waters not directly accessible by road.

(k) Launching or operating airboats.

(l) Operating a vessel in excess of designated 

size, length or width restrictions.

(These are typical of the types of regulations that are 

adopted for regulation of boating activities.)

7. 36 C.F.R. 4.2 State Law Applicable

(a) Unless specifically addressed by 

regulations in this chapter, traffic and the 

use of vehicles within a park area are 

governed by State law. State law that is now 

or may later be in effect is adopted and made 

a part of the regulations in this part.

(b) Violating a provision of State law is 

prohibited.
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(This is an example of how state law can be incorporated 

by reference into federal regulations)

VII. Significant Statutory Provisions

Land management agencies often have common interests 

in enforcing laws that may be under the jurisdiction of a 

particular land management agency. The focus of this 

discussion is what agencies have jurisdiction and how law 

enforcement officers from other agencies may acquire 

jurisdiction over the selected laws discussed.

Statutes affecting the land management law enforcement 

mission are primarily located in Titles 16 and 18 of the United 

States Code. 

A. Lacey Act

The Lacey Act makes it illegal to trade in fish, wildlife, or 

plants taken in violation of any U.S. or Indian tribal law, treaty, 

or regulation as well as violation of foreign law. The Act provides 

for civil penalties, criminal sanctions, and forfeiture provisions. 

This law does not include activities regulated by the Magnuson 

Fishery Conservation and Management Act, the Tuna 

Conventions Act, the Atlantic Tunas Convention Act, or any 

activity involving the harvest of highly migratory species. 16 

U.S.C. §§ 3371-3378. While the U.S. Fish and Wildlife Service 

tends to be predominant agency involved in Lacey Act cases, the 

Act is administered by the Departments of Interior, Commerce 

and Agriculture through USFWS, NMFS, or the Animal and 

Plant Health Inspection Service. Any of the three agencies may, 

by agreement, use the personnel, services and facilities of any 

other federal agency or any state agency in the enforcement of 

the Lacey Act. (16 U.S.C. § 3375(a)).

B. Endangered Species Act

The National Marine Fisheries Service (NMFS) and the 

U.S. Fish and Wildlife Service (USFWS) share primary 
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responsibility for implementing the Endangered Species Act. 

Generally, USFWS manages land and freshwater species, while 

the National Marine Fisheries Service manages marine species, 

including anadromous salmon. The Act provides for the 

conservation of species that are endangered or threatened with 

extinction throughout all or a significant portion of their range, 

and the conservation of the ecosystems on which they depend. 

The listing of an endangered species generally protects the 

species under federal law, thus making it illegal to ―take‖ 

(harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 

or collect) a listed species. 16 U.S.C. §§ 1531 – 1543. The 

primary agencies for enforcement of the Endangered Species Act 

are the Department of Interior (through the USFWS) and, for 

marine species, the Department of Commerce (through the 

NMFS). For some plant importation/exportation issues the 

Department of Agriculture is responsible. The Coast Guard also 

has enforcement authority. In addition, the appropriate lead 

agency can, by agreement, use the personnel, services and 

facilities of any other federal agency or any state agency in the 

enforcement of the Endangered Species Act. (16 U.S.C. § 

1540(e)). This means that unless your agency is one of these 

lead enforcement agencies, your agency must have an 

agreement with one of the lead agencies before it acquires 

subject matter jurisdiction over its provisions allowing you to 

enforce the Endangered Species Act. The same restriction 

applies to the Lacey Act, the Archaeological Resources 

Protection Act (ARPA) and the Marine Mammal Protection Act.

C. Marine Mammal Protection Act (MMPA) of 1972

The MMPA prohibits, with certain exceptions, the take of 

marine mammals in U.S. waters and by U.S. citizens on the 

high seas, and the importation of marine mammals and marine 

mammal products into the U.S. 16 U.S.C. § 1377. The 

Departments of the Interior and Commerce are responsible for 

different aspects of this law. The appropriate lead agency may, 

by agreement, use the personnel, services and facilities of any 

other federal agency or any state agency in the enforcement of 

the Marine Mammal Protection Act. (16 U.S.C. §1377(a)).
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D. Archaeological Resources Protection Act of 1979

The Archaeological Resources Protection Act of 1979 

(ARPA) protects archaeological resources and facilitates 

cooperation and the exchange of information between agencies 

regarding these resources. Civil and criminal penalties are 

possible for the damage and excavation of archaeological 

resources. Under the statute, the archaeological resources 

recovered and any instruments used to commit the violations 

may be forfeited. The ARPA also provides restrictions against 

trafficking in illegally obtained artifacts. 16 U.S.C. §§ 470aa et 

seq. Each agency having archaeological resources on public 

lands under its jurisdiction has authority over those particular 

lands, but the authority may be delegated to the Secretary of 

the Interior. (16 U.S.C. § 470bb(2)). A second ARPA offense 

following an earlier conviction for an earlier ARPA offense is 

always charged as a felony. 

E. Bald Eagle Protection Act of 1940

This law protects the bald eagle (the national emblem) 

and the golden eagle by prohibiting, except under certain 

specified conditions, the taking, possession and commerce of 

such birds. The 1972 amendments increased penalties for 

violating provisions of the Act or implementing regulations and 

strengthened other enforcement measures. Rewards are 

provided for information leading to arrest and conviction for 

violation of the Act. 16 U.S.C. §§ 668-668d. The bald eagle is 

actually protected by three acts of Congress: the Bald and 

Golden Eagle Protection Act (BGEPA)(16 U.S.C. 668), the 

Migratory Bird Treaty Act of 1918 (MBTA)(16 U.S.C. §§ 703-

711), and the Endangered Species Act of 1973 (ESA)(16 U.S.C. 

§§ 1531-1543). The golden eagle is likewise covered by the 

BGEPA and the MBTA, but it is not listed as an endangered or 

threatened species. The Department of the Interior has the 

primary responsibility for enforcement of this act. Enforcement 

authority may be delegated also to state fish and wildlife 

authorities. 16 U.S.C. § 668b.
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Be familiar with these and other important wildlife-related 

statutes. Where an agency is not the primary enforcement 

agency, a Memorandum of Agreement and/or a cooperative 

agreement may be required before you may enforce a particular 

wildlife statute. 

VIII. Administrative Inspection Authority

Many land management agency regulations include 

various types of inspection authority. For example, the National 

Park Service provision below illustrates the typical inspection 

authority for land management agencies.

36 C.F.R. 3.5 Inspections

(a) Authorized persons may at any time stop or 

board a vessel to examine documents, licenses or 

permits relating to operation of the vessel, and to 

inspect such vessel to determine compliance with 

regulations pertaining to safety equipment and 

operation.

(b) An authorized person who observes a vessel 

being operated without sufficient lifesaving or 

firefighting devices, or in an overloaded or unsafe 

condition, as defined in United States Coast Guard 

or National Park Service regulations, may direct the 

operator to take immediate and reasonable steps 

necessary for the safety of those aboard the vessel, 

including but not limited to directing the operator 

to:

(1) Correct the hazardous condition immediately;

(2) Proceed to a mooring, dock, or anchorage; or

(3) Suspend further use of the boat until the 

hazardous condition is corrected.

(c) Violation of directions issued in accordance with 

paragraph (b) of this section is prohibited.
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Since this provision does not require reasonable 

suspicion or probable cause and a warrant, this administrative 

inspection authority must be ―reasonable‖ under the balancing 

analysis of the Fourth Amendment.

The Supreme Court in Camara v. Municipal Court2 set 

out a three prong analysis to determine the reasonableness of a 

warrantless intrusion into an individual‘s Fourth Amendment 

interests. The three factors considered are (1) the importance of 

the governmental interest; (2) the degree of the intrusion by the 

government; and (3) the inability to achieve reasonable results 

by using the normal probable cause standard. In New York v. 

Burger, the Supreme Court applied a similar test to the 

warrantless inspection of a junk yard as a pervasively regulated 

industry. Under Burger, administrative inspection authority 

depends on the existence of a ―reasonable regulatory scheme.‖ 

There must be either a statute or regulation that establishes the 

regulatory scheme. In Burger, a regulatory scheme is 

reasonable if three requirements are met:

There must be a substantial governmental interest 

that informs the regulatory scheme to which the 

inspection is made.

The warrantless inspections must be necessary to 

further the regulatory scheme.

The inspection program, in terms of the certainty 

and regularity of its application, must provide a 

constitutionally adequate substitute for a warrant. 

In simpler terms, it must advise the owner that the 

search is being made pursuant to law and it must 

have a properly defined scope while limiting the 

discretion of the inspecting officers.

 

2 Cases named in this chapter without a case cite are briefed in the 

companion book, Legal Division Reference Book.
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Recreational hunting, fishing, and boating are pervasively 

or closely regulated activities no matter where they occur. 

When they occur on federal public lands, such as park areas, 

the government interest is substantial. Game warden 

inspections of all three activities are common and expected. 

The transient nature of these activities is not conducive to 

obtaining a search warrant. Finally, government discretion is 

limited by the scope of the regulatory scheme.

Administrative inspections cannot be used as a 

subterfuge to end-run the Fourth Amendment. When the 

Government‘s primary purpose is to seek and seize evidence of 

a criminal offense, the Government must comply with 

traditional Fourth Amendment requirements. Nor do courts 

permit warrantless entries of homes or forcing entry of premises 

to perform an inspection. But land management officers, when 

following the provisions of a reasonable regulatory scheme 

authorized by enabling statutes or regulations, can enter and 

inspect commercial premises without a warrant. This is 

particularly true when the premises are the site of a highly 

regulated activity like food preparation, explosives manufacture, 

or retail sales of firearms.
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Chapter Two

Conspiracy and Parties

Part One - Conspiracy

I. INTRODUCTION...................................................................34

A. Advantages ......................................................................... 34

1. Get Beyond The First Layer............................................ 34

2. Past, Present, and Future .............................................. 35

3. Allow Juries to See the Entire Operation........................ 35

4. Use of the Grand Jury ................................................... 35

B. Disadvantages..................................................................... 36

1. Time Consuming............................................................ 36

2. Witness Difficulties ........................................................ 36

3. No Instant Results ......................................................... 36

II. THE STATUTE ....................................................................37

A. Title 18 U.S.C. § 371........................................................... 37

B. The Elements ...................................................................... 38

1. Two or More Persons...................................................... 39

2. Knowledge and Intent .................................................... 39

3. The Agreement............................................................... 40

4. Unlawful or Fraudulent Means or Objective ................... 41

5. The Overt Act................................................................. 42

III. THE LAW OF CONSPIRACY ....................................................42

A. The Doctrine of Merger/Double Jeopardy............................ 43

B. Pinkerton Theory of Vicarious Liability................................ 43

C. Co-Conspirator‘s Statements .............................................. 43

D. Late Joiners to a Conspiracy ............................................... 45

E. Withdrawal from a Conspiracy ............................................ 45

F. Statute of Limitations (18 U.S.C. § 3282) ............................ 46

G. Venue ................................................................................. 46

IV. INVESTIGATING CONSPIRACIES .............................................47

A. Chronology ......................................................................... 47

B. Organizational Chart........................................................... 48

C. Recruit and Develop Witnesses ........................................... 48

D. Locate and Acquire ............................................................. 49

V. ATTEMPT TO COMMIT A CRIME ............................................50
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Part Two - Parties To Criminal Offenses

I. INTRODUCTION...................................................................51

II. AIDING AND ABETTING (18 U.S.C. § 2(A))...............................51

III. CAUSING THE COMMISSION OF A CRIME (18 U.S.C. § 2(B)) .......52

IV. ACCESSORY AFTER THE FACT (18 U.S.C. § 3).........................52

V. MISPRISION OF FELONY (18 U.S.C. § 4).................................53

*****

I. Introduction

The crime of conspiracy was created because of the 

inherent dangers posed to society when two or more individuals 

join together to violate the law. A person who joins with others 

to commit a crime strengthens the criminal scheme and 

enhances the potential success of the scheme. Furthermore, 

once an individual joins with others, that person is less likely to 

change their mind than one who has made a solitary decision to 

violate the law. Once conspiracies are formed, there is the 

danger they will get out of control, recruit other criminals, and 

become more dangerous and difficult to immobilize. For all 

these reasons, the identification and targeting of multidefendant criminal networks is essential to successful law 

enforcement.

The conspiracy statutes can often be used to great 

advantage by criminal investigators. This chapter provides a 

working knowledge of the law of conspiracy and the focus of 

conspiracy investigations should you encounter organized 

criminal cartels.

A. Advantages

In any investigation involving two or more defendants, 

agents should consider the following advantages of a conspiracy 

charge:

1. Get Beyond The First Layer

In many cases the organizers and ―brains‖ behind a 

criminal organization insulate themselves from those members 
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35

whose actions are more visible, thus making them less 

susceptible to getting caught. The law of conspiracy enables 

the investigator to get beyond the first layer of visible members 

of a conspiracy and immobilize the entire criminal organization.

2. Past, Present, and Future

The criminal investigator will often initiate a case on a 

criminal organization where the objectives of the conspiracy are 

still ongoing (a fraudulent investment scheme). In other cases, 

the goal of the conspiracy will have already been accomplished 

(a federal building has been blown up). In some instances, the 

criminal objectives may still be in the planning stage (planning 

to rob a bank). In a conspiracy investigation the investigator 

can go in any direction, past, present or future. Because the 

conspiracy statute is pro-active in nature, criminals may be 

apprehended prior to any substantive criminal offense being 

consummated (e.g., before an assassination or bank robbery 

attempt).

3. Allow Juries to See the Entire Operation

In presenting a conspiracy case to a jury the prosecution 

can describe the roles and relevant conduct for each member of 

the conspiracy. The entire scope of the operation can be spelled 

out, even though some of the members of the conspiracy may 

not be on trial. An additional benefit to a conspiracy charge is 

that multiple defendants can be tried at the same time. Having 

the members of the conspiracy sitting together as the 

prosecution describes each one‘s role in the criminal enterprise 

strengthens the government‘s position that they were all acting 

in concert together, albeit some members had larger roles than 

others.

4. Use of the Grand Jury

Through the grand jury, the investigator can obtain 

documentary evidence not easily obtained without the power of 

a grand jury subpoena. Witnesses who are reluctant to provide 

information can be subpoenaed to testify before the grand jury. 
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Sworn testimony of witnesses can be preserved for trial or 

become the basis of a perjury charge.

B. Disadvantages

Developing a successful conspiracy investigation may be 

severely hampered due to certain limiting factors, many of 

which the investigator has no control over. Some of these 

disadvantages may be:

1. Time Consuming

In many conspiracy investigations, the overt acts that 

furthered the conspiracy were performed in the past. Further, 

members of the conspiracy take great pains to conceal their 

criminal scheme. It will be very time consuming for the 

criminal investigator to organize their goals, identify their 

targets, develop witnesses, corroborate the witnesses and gather 

evidence to strengthen the case.

2. Witness Difficulties

Successful conspiracy investigations depend on 

developing key witnesses. More often than not, the most 

knowledgeable witnesses are co-conspirators. Unfortunately, 

these witnesses are difficult to manage and control and often 

can be an embarrassment to the government. They are easily 

impeached and possess very little appeal to the jury. There will 

be times when even the hardest working investigator will be 

unable to provide enough corroboration to make these 

witnesses believable.

3. No Instant Results

A primary goal of the conspiracy investigation is to 

prosecute all (or as many as possible) who willingly participated 

in the criminal venture. The larger the number of participants 

in a conspiracy, generally the longer it takes to develop the 

case. Consequently, there will not be the ―instant results‖ 

commonly associated with single arrests for substantive 

offenses.
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Conspiracy and Parties

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In spite of these disadvantages, the conspiracy 

investigation is one of the most effective weapons in the law 

enforcement officer‘s arsenal. It is designed to immobilize and 

eliminate those that bind together to strengthen their criminal 

endeavors. Remember, it was a conspiracy investigation that 

prompted Richard M. Nixon to resign as president of the United 

States.

II. The Statute

A. Title 18 U.S.C. § 3711

There are a number of federal statutes that criminalize 

certain types of conspiracies, such as 18 U.S.C. § 241

(Conspiracy Against Civil Rights) and 21 U.S.C. § 846

(Controlled Substance Conspiracy). This class is concerned 

only with the general federal conspiracy statute, 18 U.S.C. § 

371. This statute reads as follows:

If two or more persons conspire either to commit 

any offense against the United States, or to 

defraud the United States, or any agency thereof 

in any manner or for any purpose, and one or 

more of such persons do any act to effect the 

object of the conspiracy, each shall be fined 

under this title or imprisoned not more than five 

years or both.

If, however, the offense, the commission of 

which is the object of the conspiracy, is a 

misdemeanor only, the punishment for such 

conspiracy shall not exceed the maximum 

punishment provided for such misdemeanor.

The plain language of the statute prohibits two distinct 

types of conspiracies. First, it prohibits any conspiracy to 

violate a civil or criminal federal law (e.g., bribery). Second, the 

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Conspiracy and Parties

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statute prohibits any conspiracy to defraud the United States or 

any agency of the United States, including conspiracies formed 

for the purpose of impairing, obstructing, or defeating the lawful 

functions of any department of the United States government, 

such as the Internal Revenue Service.

The statute provides a maximum punishment of not more 

than five years, as well as a fine up to $250,000.00, but only if 

the intended or committed substantive offense is a felony. If the 

offense committed or intended is a misdemeanor, the maximum 

punishment for the conspiracy charge cannot exceed the 

maximum possible punishment for the misdemeanor.

B. The Elements

There are five essential elements the government must 

prove beyond a reasonable doubt to establish a violation of § 

371. A conspiracy exists when:

Two or More Persons

Intentionally

Agree

To Violate Federal Law or Defraud the United States

and

Commit an Overt Act in Furtherance of the 

Agreement

Once these elements have been met, the crime of 

conspiracy is COMPLETE. In other words, once a coconspirator commits an overt act in furtherance of the 

agreement, all of the co-conspirators may be prosecuted for 

conspiracy, even if they take no further steps to accomplish 

their ultimate goal.
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Conspiracy and Parties

39

1. Two or More Persons

A conspiracy requires the participation of ―two or more 

persons.‖ The persons need to be capable of forming the 

necessary criminal intent to agree to the objects of the 

conspiracy. One person cannot be convicted of conspiring with 

himself, an undercover law enforcement officer, or a cooperating 

informant. Because a government agent or an agent of the 

government (cooperating informant) does not truly intend to 

commit the ultimate crime of the conspiracy, they cannot be 

counted as a conspirator. Likewise, individuals who do not 

have the mental capacity to form the criminal intent to conspire 

may not be one of the required two or more persons in a 

conspiracy. Minors and mentally ill persons could fall into this 

category.

The two persons need not meet. They need not know 

each other‘s identities. But, they must be aware of, or must 

reasonably foresee of, each other‘s existence and roles. For 

example, in a conspiracy to hijack goods, the person who steals 

a tractor-trailer from a truck stop may not know the person on 

the inside who advised when the tractor-trailer could be easily 

taken nor would he necessarily know the person who was 

purchasing the stolen goods. Further, as long as there are at 

least two members, a conspiracy continues even if the members 

change.

2. Knowledge and Intent

The government must prove that the defendant had 

knowledge of the conspiracy and intended to participate in it.

(a) Knowledge

To be a party to a conspiracy, an individual must know of 

the conspiracy‘s existence and its overall plan or purpose. 

However, each conspirator need not know all of the details of 

the plan. While the defendant must know that at least one 

other person is involved in the conspiracy (so that an agreement 

is possible), there is no requirement that the defendant know 
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Conspiracy and Parties

40

the identity, number, or role of all co-conspirators. Secrecy and 

concealment are features of a successful conspiracy. 

Accordingly, the law allows the conviction of individuals without 

requiring that they have knowledge of all the details of the 

conspiracy or of all those participating in it.

(b) Intent

The defendant must intend to participate in the 

conspiracy. The government must present evidence that the 

defendant joined voluntarily, by agreeing to play some part with 

the intent to help it succeed. The mere showing that a 

defendant was aware of the plan or that the defendant approved 

of the plan is not enough to prosecute, without showing intent 

to participate in the conspiracy. A defendant‘s intent may be 

proven through circumstantial evidence, such as the 

defendant‘s relationship with other members of the conspiracy,

the length of the association between the members, the 

defendant‘s attitude and conduct, and the nature of the 

conspiracy. Acts committed by the defendant that furthered the 

objective of the conspiracy are strong circumstantial evidence 

that the defendant was a knowing and willing participant in the 

conspiracy.

3. The Agreement

The essence of any conspiracy is the agreement. 

Conspiracy is different than substantive crime. In substantive 

crime the act is criminal. In conspiracy, the mere agreement to 

violate the law becomes criminal once an overt act in 

furtherance of the agreement takes place. Seldom, if ever, is 

there proof of a formal agreement. The agreement does not 

have to be put into words, either oral or written. The agreement 

is often established through circumstantial evidence and can be 

as loose as a mutual understanding. Association with members 

of a conspiracy is helpful in establishing a defendant‘s willing 

participation; however, mere presence at the scene is not 

enough to show agreement. A subject can be present with other 

known conspirators without intending to join or further the 

objects of the conspiracy.
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Conspiracy and Parties

41

A subject can also do something to help the conspiracy 

without actually joining. For example, an individual may rent 

an apartment to members of a conspiracy. The conspirators 

use the apartment to set up their ―bookmaking‖ operation. As 

such, the apartment owner has aided the conspiracy. However, 

absent a showing that he had a stake in the venture (doubled 

the rent) or knew of the conspiracy and intended to help it by 

providing a hiding place, he has not joined in the agreement. 

Mere presence and helping without joining in the agreement are 

common defenses to conspiracy charges. Efforts must be made 

to establish a defendant‘s joining in the agreement. This can be 

shown directly by co-conspirators‘ testifying about the 

defendant‘s role in the organization or indirectly by 

documenting a series of acts or events that demonstrate the 

defendant acted in concert with and must have been in 

agreement with other members of the conspiracy.

4. Unlawful or Fraudulent Means or Objective

To successfully prosecute under § 371, either the 

objective of the conspiracy or the means to accomplish the 

objective must (1) be an offense against the United States or (2) 

tend to defraud the United States. If neither the objective, nor 

the means to accomplish the objective, violate federal law or 

tend to defraud the United States, prosecution under § 371 is 

not available. This illustrates an important concept; the 

objective of the conspiracy does not have to be a crime. It is 

sufficient to show that the contemplated objective would 

impede, impair, defeat, or obstruct the proper functions of the 

United States Government. This could be accomplished 

through a scheme such as ―bid-rigging‖ or through an 

agreement to obstruct the regulatory functions of a government 

agency, such as the Internal Revenue Service, which is often a 

civil violation of law.

It is not a defense that the objective was factually 

impossible to achieve. For example, if the objective of the 

conspiracy is to kill an individual who, unknown to the 

conspirators, is already dead, then it is factually impossible for 

the conspirators to carry out their plan. However, the 
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Conspiracy and Parties

42

conspiracy charge was complete the moment the first overt act 

in furtherance of the agreement was committed.

5. The Overt Act

The final element in a conspiracy prosecution under § 

371 is that, following an agreement, one of the conspirators 

committed an ―overt act‖ in furtherance of the agreement. The 

overt act demonstrates that the conspirators have moved from a 

―thought‖ crime to one of action. Instead of simply talking 

about the crime, the conspirators have actually taken a step 

towards making it a reality. An overt act shows that the 

agreement is not dormant, but is actually being pursued by the 

conspirators.

Only one overt act must be committed to complete the 

crime of conspiracy. An overt act is any act done for the 

purpose of advancing or helping the conspiracy. A single overt 

act is sufficient to complete the conspiracy for all members, 

including those who join the conspiracy after it has begun. The 

overt act must occur after the agreement. The government may 

not rely on acts committed before the agreement to complete the 

conspiracy.

Additionally, the overt act need not be criminal in nature 

to complete the conspiracy, but may, in fact, be entirely lawful. 

For example, the overt act may be preparatory in nature, such 

as buying a car or mask to use in a bank robbery. If the 

substantive offense is actually committed, that offense may be 

used as the overt act necessary to complete the conspiracy. For 

instance, if two persons agree to rob a bank and did so, the 

bank robbery would be the overt act necessary to complete the 

conspiracy.

III. The Law of Conspiracy

In addition to the elements to be proved in conspiracy 

cases, there is significant law you should know when 

undertaking a conspiracy investigation. The following sections 

provide the criminal investigator some additional legal 

principles to guide investigations.
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Conspiracy and Parties

43

A. The Doctrine of Merger/Double Jeopardy

A conspiracy charge is a separate and distinct offense 

from the crime being planned and does not merge with the 

substantive offense, should it ultimately be committed. The 

Doctrine of Merger holds that inchoate offenses (those 

committed to lead to another crime) such as solicitation and 

attempts to commit crimes merge into the substantive offense if 

that offense is committed. Conspiracy, an inchoate offense, 

does not merge into the substantive offense. In addition, 

conspiracy to commit a substantive offense has different 

elements than the substantive offense and will survive a double 

jeopardy challenge when both are charged utilizing the exact 

same evidence.

B. Pinkerton Theory of Vicarious Liability

Conspirators are criminally responsible for the reasonably 

foreseeable acts of any co-conspirator that was committed in 

furtherance of the overall plan. This is known as the Pinkerton 

Theory of ―vicarious liability.‖ For example, if the plan was to 

smuggle counterfeit computer software into the United States, 

bribing a U.S. Customs Inspector would be a reasonably 

foreseeable act. In such a case, each conspirator would be 

liable for the substantive act of bribery, regardless of who 

actually committed the bribery. If an act was not a reasonably 

foreseeable consequence of the overall plan, a defendant could 

not be held liable for that act unless he or she was the 

individual who actually committed it. The benefit of this rule is 

that all foreseeable acts of the conspiracy can be introduced at 

trial even though those on trial may not have participated in the 

acts. Pinkerton v. United States, 328 U.S. 640 (1946).

C. Co-Conspirator‘s Statements

The Federal Rules of Evidence (Rule 801(d)(2)(E))2

provides, in pertinent part:

 

2 This Rule can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Rules of 

Evidence.‖
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Conspiracy and Parties

44

A statement is not hearsay if ... the statement is 

offered against a party and is ... a statement by a 

co-conspirator of a party during the course of and 

in furtherance of the conspiracy.

The rules regarding hearsay are covered more fully in the 

―Courtroom Evidence‖ portion of the text. Even though hearsay 

evidence is generally inadmissible, there are a variety of 

exclusions and exceptions to that rule. One of those exclusions 

is that everything said, done, or written by a conspirator during 

the existence of the conspiracy and in furtherance of the 

conspiracy is admissible against all co-conspirators. When 

deciding whether a co-conspirator‘s statement is admissible 

under this rule, five questions must be asked:

Was there a Conspiracy?

Was the Defendant a Member of the Conspiracy?

Was the Person who made the Statement a Member 

of the Conspiracy?

Was the Statement made during the Conspiracy?

Was the Statement made in Furtherance of the 

Conspiracy?

If the answer to each of the above questions is ―yes,‖ then 

the statement is admissible. If the answer to any of the above 

questions is ―no,‖ then the statement is not admissible under 

this rule, although it may be admissible under another 

exception or exclusion to the hearsay rule. The co-conspirator, 

against whom the statement is admitted, need not have been 

present or even heard the statement when it was made. 

Furthermore, any witness who heard the statement may testify 

regarding it, irrespective of whether the witness is a member of 

the conspiracy. Thus, if A and B conspire, and B makes 

statements to C during and in furtherance of the conspiracy, C 

may testify about B‘s statements at A‘s trial, even though C was 

not a member of the conspiracy. In contrast, things said or 
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Conspiracy and Parties

45

done by a conspirator only in his self-interests, not meant to 

help the conspiracy, are called ―frolics‖ and are not admissible 

evidence against the conspiracy. Likewise, a post-arrest 

statement is not admissible under this rule because the 

statement was not made during and in furtherance of the 

conspiracy.

D. Late Joiners to a Conspiracy

The law recognizes that an individual may join a 

conspiracy after it has begun but before it has been terminated. 

Such an individual is referred to as a ―late joiner‖ to the 

conspiracy. They do not have to commit an overt act, only join 

in the agreement. ―Late joiners‖ take the conspiracy as they 

find it. ―Late joiners‖ are criminally responsible; not only for the 

conspiracy charge, but for any reasonably foreseeable acts done 

by any co-conspirator while the ―late joiner‖ is a member of the 

conspiracy. ―Late joiners‖ are not criminally responsible for the 

criminal offenses of co-conspirators committed prior to their 

joining the conspiracy. Nonetheless, the prior acts of the coconspirators are admissible at the trial of the ―late joiner,‖ in 

order to show the existence of the conspiracy.

E. Withdrawal from a Conspiracy

Just as the law recognizes that individuals may join a 

conspiracy after it begins, the law also recognizes that 

individuals may withdraw from the conspiracy prior to its 

termination. Withdrawal from a conspiracy requires more than 

simply no longer participating. A valid withdrawal from a 

conspiracy has two basic requirements. First, the individual 

must do some affirmative act inconsistent with the goals of the 

conspiracy. Unless a conspirator produces affirmative evidence 

of withdrawal, his or her participation is presumed to continue. 

Second, the affirmative act must be reasonably calculated to be 

communicated to at least one other known conspirator or law 

enforcement personnel. Withdrawal is an affirmative defense 

that must be proved by the defendant.
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Conspiracy and Parties

46

If an individual validly withdraws from a conspiracy, the 

statute of limitations on the conspiracy charge for that 

individual will begin to run the date of the withdrawal. Further, 

the withdrawal of a conspirator does not generally change the 

status of the remaining members. The valid withdrawal of a 

single conspirator from a two-person conspiracy however, will 

result in the termination of the conspiracy, because the 

requisite ―two or more persons‖ are no longer present. Once a 

valid withdrawal occurs, the withdrawing defendant will escape 

liability for any subsequent criminal acts of the remaining 

conspirators, but remains liable for conspiracy and for any 

criminal acts committed while a member of the conspiracy. 

Only by withdrawing from the agreement before the commission 

of the overt act will the individual escape liability for the 

conspiracy charge.

F. Statute of Limitations (18 U.S.C. § 3282)

The statute of limitations for the crime of conspiracy is 

five years. Generally, the statute of limitations begins to run 

from the date the conspiracy is completed, terminated, or 

abandoned. Typically, the statute of limitations begins to run 

from the date the last overt act was committed in furtherance of 

the conspiracy (e.g., dividing the money from the bank robbery). 

The conspiracy itself may, depending on the nature of the 

agreement, continue past achieving the objective, in order to 

conceal the crime or to destroy or suppress evidence. In such 

cases, the statute of limitations would be extended and would 

not start to run until such time as the last overt act (i.e., the 

last act of concealment) occurs. For substantive offenses 

committed during the timeframe of the conspiracy, the statute

of limitations begins to run from the date the offense was 

committed.

G. Venue

The Sixth Amendment requires that prosecution occur ―in 

the State and District wherein the crime shall have been 

committed.‖ Because the legal basis for a conspiracy is an 

agreement and an overt act in furtherance of that agreement, 
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Conspiracy and Parties

47

venue for a conspiracy charge exists in the district where the 

agreement was entered into, or in any district in which an overt 

act in furtherance of the agreement was committed. Since the 

act of one conspirator is an act of all conspirators, an act in a 

district by one will result in venue in that district for all 

conspirators, even where the others were never physically 

present in the district.

If a substantive offense is committed, venue for the 

substantive offense will be in the district where it occurred. As 

a practical matter, cases are charged in the district where venue 

for both the conspiracy and the substantive offense overlap.

IV. Investigating Conspiracies

The general approach to conducting a conspiracy 

investigation is to identify the members within the organization 

along with their respective roles for achieving the criminal 

objectives. Criminals attempt to conceal their plans and avoid 

detection so recruiting and developing witnesses is critical to 

any conspiracy investigation. You will need to locate and obtain 

evidence to corroborate witnesses and support the theory of the 

case that the defendants were acting together in agreement, 

toward a common criminal objective.

To accomplish these goals, you need to be organized. 

Documenting the activities of the organization and charting the 

members of the organization can simplify these tasks.

A. Chronology

Documenting the criminal activities of an organization is 

accomplished through the use of ―overt act sheets.‖ An overt 

act sheet is a single sheet of paper that summarizes an overt act 

done in furtherance of the conspiracy. It includes the date and 

synopsis of the overt act, the defendant(s) involved, the primary 

and corroborative witnesses and the type of evidence whether 

oral, documentary or physical. Maintaining a notebook 

compilation of overt acts in furtherance of the conspiracy will 

provide a chronology or time line of the conspiracy. This 
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Conspiracy and Parties

48

chronology is of utmost importance in presenting the case to an 

AUSA for prosecution and in identifying the weaknesses and 

strengths in the government‘s proofs.

B. Organizational Chart

Prepare an organizational chart identifying all known and 

―unknown‖ members of the organization. In identifying known 

members of the conspiracy, you should strive to determine each 

player‘s particular role in the criminal scheme. Identifying roles 

will assist in targeting the main members of the conspiracy. 

Further, identifying member‘s role in the offense facilitates 

establishing how they all worked together to accomplish the 

criminal venture.

C. Recruit and Develop Witnesses

Always attempt to identify and recruit the broadest base 

of witnesses to ensure the most expansive and credible amount 

of testimony available. Be conscious of being compromised 

when interviewing witnesses and gathering evidence. When 

interviewing new witnesses, you should not instantly identify 

the ―targets‖ of the investigation by name or showing them 

photo spreads of the subjects being investigated. Maintain the 

spirit of strict confidentiality with the witness and what they 

disclose. Do not divulge the identity of other witnesses in the 

investigation even if the witness being interviewed knows their 

identity.

In most cases, the most knowledgeable witnesses will be 

members of the conspiracy themselves. Unfortunately these 

witnesses come with a lot of ―baggage‖ and are easily 

impeachable. They often have prior criminal histories, are 

testifying for some particular benefit to themselves and give 

incomplete or inconsistent statements. Every effort must be 

made to corroborate these witnesses. Generally speaking, 

witnesses can be discredited; documents don‘t lie. Extract 

details from witnesses and obtain documents to corroborate 

their testimony. Never cut corners when you have located 

documentary evidence that could become invaluable in 
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Conspiracy and Parties

49

corroborating your witness‘s testimony. Use the proper search 

warrant or subpoena to obtain evidence.

Statements made by co-conspirators in furtherance of the 

conspiracy are some of the most damaging evidence in a 

conspiracy prosecution. Make a concerted effort develop this 

testimony and corroborate it through supporting co-conspirator 

testimony and non-conspirator testimony. As always, any 

supporting documentary or physical evidence should be 

pursued. For example, a witness could testify to conversations 

she heard from a co-conspirator describing how he and a third 

co-conspirator murdered an individual who hadn‘t paid his 

drug debt. Testimony from evidence technicians and the 

coroner as to where the shell casings were found and the 

trajectories of the bullets entering the body would corroborate 

the co-conspirator witness‘s account of the shooting 

conversation to establish the defendant had to have been 

present to possess that particularized knowledge.

D. Locate and Acquire Evidence

Locate and acquire evidence in support of the witness‘s 

testimony. Utilize whatever law enforcement techniques are 

available to obtain evidence of the conspiracy. Use search 

warrants, grand jury subpoenas, ―trash pulls,‖ evidence 

purchases, consensual recordings, ―clone‖ pagers, wire-taps, 

and evidence seized by other agencies to further the case. Bank 

accounts, credit cards, tax records, toll call records, 

photographs, real property records, airline tickets, car rentals, 

hotel records, vehicle, boat, aircraft registrations, to name a 

few, should all be explored in support of the investigation. The 

more you can independently corroborate each witness‘s 

testimony the greater the chances for a successful prosecution.

At times you will encounter a suspect who knowingly 

helps a conspirator commit a target crime, but it is unclear if 

the suspect has JOINED the conspiracy. Consider arresting 

that suspect for aiding & abetting the target crime. Part Two of 

this section, discusses ―Parties to Criminal Offenses.‖
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Conspiracy and Parties

50

V. Attempt to Commit a Crime

An attempt to commit a crime is a crime, although it is 

not defined by statute. To prove a person attempted to commit 

a crime, the government must show the defendant‘s intent to 

commit a crime together with the commission of an act that 

―constitutes a substantial step towards commission of the 

crime.‖ The government‘s burden of proving the defendant took 

a substantial step toward commission of the crime protects a 

defendant from being convicted for mere thoughts, desires or 

motive. The degree of a defendant‘s performance of a 

substantial act in furtherance of the illegal activity is a factual 

issue depending on the circumstances of each particular case. 

Generally speaking, something less than a completed 

transaction supports an attempt, provided there is a substantial 

step toward completion of the crime.
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Conspiracy and Parties

51

Part Two - Parties to Criminal Offenses

I. Introduction

When a crime is committed, the individual who actually 

commits the crime is referred to as the ―principal‖ of the 

offense. However, there are often individuals who assist or help 

the principal to commit the offense. Some of these individuals 

provide assistance before the crime is committed, while others 

provide some manner of assistance after the crime has been 

committed. Still others may have knowledge that a federal 

crime was committed, yet take affirmative steps to conceal this 

knowledge from federal investigators. All of these persons are 

known as ―parties‖ to the offense.

II. Aiding and Abetting (18 U.S.C. § 2(a))3

Any person who knowingly aids, abets, counsels, 

commands, induces or procures the commission of an offense 

may be found guilty of that offense. For example, the charge 

would read: Theft of Government Property, Aiding and Abetting; 

in violation of 18 U.S.C. § 641 and 2. That person must 

knowingly associate with the criminal activity, participate in the 

activity, and try to make it succeed.

In other words, the defendant must actually do something 

to assist the commission of the crime. The affirmative act of 

association must occur either before or during the commission 

of the crime by the principal. An individual cannot aid and abet 

a completed crime. If the affirmative act occurs after the 

commission of the crime, the defendant is not guilty of ―aiding 

and abetting,‖ but may be liable as an ―accessory after the fact‖ 

(discussed below).

An aider and abettor is not required to be present at the 

time the actual crime is committed nor know all the details of 

the crime. Further, presence at the scene of the crime, even in 

 

3 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Conspiracy and Parties

52

the presence of the principal, does not, standing alone, make an 

individual an aider and abettor. The government must show 

that the association with the principal was for the purpose of 

assisting in committing the crime. ―Mere association‖ with the 

principal is a common defense to an aiding and abetting charge.

In addition to an affirmative act of association, the defendant 

must also know that he or she is assisting in the commission of 

a crime. Deliberate avoidance of knowledge (otherwise known 

as ―willful blindness‖) does not prevent a finding of guilt. 

Deliberate avoidance occurs when a defendant claims a lack of 

guilty knowledge, but the evidence shows that he or she instead 

chose to intentionally avoid gaining knowledge about the 

circumstances surrounding their assistance in order to avoid 

criminal responsibility.

Finally, a crime must actually be committed in order to 

charge an individual as an aider and abettor. However, a 

defendant may be convicted of aiding and abetting even though 

the actual principal of the crime is never convicted or even 

identified.

III. Causing the Commission of a Crime (18 U.S.C. § 2(b))

If a person willfully causes another to commit a federal 

crime, that person may be found guilty of the offense he caused 

the other person to commit.

It is not necessary that the defendant know the individual 

who actually committed the offense, or that the defendant is 

present when the crime is committed. There is also no 

requirement that the individual who actually committed the 

offense be convicted in order to convict the individual who 

caused the crime.

IV. Accessory after the Fact (18 U.S.C. § 3)

4

An accessory after the fact is one who, with knowledge 

 

4

 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Conspiracy and Parties

53

that an offense was committed, receives, relieves, comforts or 

assists the offender with the intent to hinder or prevent the 

offender‘s apprehension, trial or punishment. The offense that 

was committed can be a felony or a misdemeanor. Silence 

alone does not constitute accessory after the fact. However, 

where an individual provides false or misleading statements to 

law enforcement officers in an effort to assist a principal in 

evading apprehension, trial or punishment, those statements 

may be used to prove the offense. As with aiding and abetting, 

the conviction of the principal is not necessary to convict a 

defendant as an accessory after the fact.

A defendant convicted of being an accessory after the fact 

is not guilty of the offense that was committed, as is a 

defendant convicted of aiding and abetting. If an individual is 

convicted of being an accessory after the fact, the maximum 

possible punishment is one-half the maximum punishment 

possible for the principal of the offense (not the actual sentence 

received), up to a total of 15 years in those cases where the 

principal could receive either life imprisonment or the death 

penalty.

V. Misprision of Felony (18 U.S.C. § 4)

5

This statute is directed at those individuals who have 

knowledge of a felony offense and take affirmative steps to 

conceal the crime and fail to disclose their knowledge to 

criminal investigators. Misprision of felony is concealing a 

felony without giving any degree of help to the individual who 

actually committed the crime. The penalty for misprision of 

felony is up to 3 years in prison and a fine up to $250,000.00.

In order to convict a defendant of misprision of felony, the 

government must prove a federal felony was committed, the 

defendant had knowledge of the committed felony, the 

defendant performed either an affirmative act of concealment or 

an act that concealed the true nature of the crime, and 

 

5

 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Conspiracy and Parties

54

defendant failed to disclose knowledge of the crime as soon as 

possible.

As with the crime of accessory after the fact, an 

individual‘s silence is not a crime. A simple failure to report a 

crime does not, without an affirmative act of concealment, make 

one guilty of misprision of felony. However, where an individual 

lies to or misleads criminal investigators, this element may be 

met.

A defendant accused of being an accessory after the fact 

must intentionally assist the principal of the crime, while one 

accused of misprision of felony need only commit an act of 

concealment without necessarily intending to assist the 

principal. Finally, accessory after the fact does not require the 

defendant to disclose his knowledge as soon as possible, while 

misprision of felony does.

The offenses of accessory after the fact and misprision of 

felony are closely related and often there will be sufficient 

evidence to charge either or both. Collect all the facts and let 

the Assistant United States Attorney make the charging 

decision.
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Constitutional Law

55

Chapter Three

Constitutional Law

I. HISTORICAL BACKGROUND ...................................................56

II. FRAMING THE CONSTITUTION OF THE UNITED STATES ..............57

III. THE CONSTITUTION AS A “LIVING DOCUMENT” ........................57

IV. RELEVANCE TO LAW ENFORCEMENT.......................................59

V. ORGANIZATION OF THE FEDERAL GOVERNMENT .......................60

A. The Legislative Branch........................................................ 60

B. The Executive Branch ......................................................... 62

C. The Judicial Branch............................................................ 63

D. A System of Checks and Balances....................................... 63

VI. AMENDMENTS TO THE CONSTITUTION.....................................65

A. First Amendment ................................................................ 65

1. Religion.......................................................................... 66

2. Speech........................................................................... 67

3. Peaceful Assembly ......................................................... 69

B. Fourth Amendment............................................................. 70

C. Fifth Amendment................................................................ 72

1. Double Jeopardy............................................................ 73

2. Self-Incrimination.......................................................... 74

3. Grand Jury Indictment.................................................. 75

4. Due Process of Law........................................................ 75

D. Sixth Amendment ............................................................... 75

1. Speedy Trial................................................................... 75

2. Confrontation of Witnesses ............................................ 76

3. Compulsory Process....................................................... 76

4. Assistance of Counsel .................................................... 76

5. Informed of the Charges................................................. 76

6. Venue ............................................................................ 77

E. Eighth Amendment............................................................. 77

F. Fourteenth Amendment ...................................................... 78

VII. CRIMINAL JUSTICE COMPONENTS FROM THE CONSTITUTION ......78

VIII. CONTROLLING SPEECH UNDER THE FIRST AMENDMENT .............79

A. Generally ............................................................................ 79

B. Government Action ............................................................. 79

C. Expression.......................................................................... 80

D. Government Restrictions..................................................... 81

1. Content Based Restrictions............................................ 82

2. Content-Neutral Restrictions ......................................... 83
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Constitutional Law

56

E. Unprotected Conduct.......................................................... 84

F. Unprotected Speech............................................................ 85

1. Fighting Words .............................................................. 86

2. True Threats .................................................................. 87

3. Advocating Imminent Lawlessness................................. 89

4. Clear and Present Danger .............................................. 90

5. Obscenity....................................................................... 91

*****

I. Historical Background

Americans lived under colonial charters for over a century 

before violations of the ―rights of Englishmen‖ by colonial 

governors and lesser officials on instruction of the King led the 

colonies to seek severance from England by declaring their 

independence. The purpose and effect of the Declaration of 

Independence by the thirteen colonies was to create thirteen 

separate and individual sovereigns (states) and to present a 

united front against the British Crown. The Revolutionary War 

provided the first real impetus for unity among the states since 

each was attempting to throw off the English yoke.

After the war, the colonies were jealous and very 

protective of their new independence and were not ready to 

relinquish it to a strong central governing body. It soon became 

apparent, however, that a central government was necessary to 

carry on the day-to-day affairs of the nation. As a result, the 

Articles of Confederation, providing for a national government, 

were approved in 1781. Deliberately kept weak by the authors, 

the national government under the Articles quickly became 

impotent because of the lack of such fundamental necessities 

as a chief executive, the right to regulate commerce, and the 

power to levy taxes. The various states issued their own 

currencies, hampering trade between them. There was no 

central court system to resolve legal disputes between the states 

and/or citizens of different states. Each state conducted its own 

foreign policy.

By the mid 1780‘s it was clear that the federal 

government under the Articles of Confederation had to be 
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reorganized into a more viable form. In May of 1787, delegates 

from the states met in Philadelphia ―for the sole and express 

purpose of revising the Articles of Confederation....‖ However, 

the delegates soon recognized that simply revising the Articles 

would not work. They then undertook to form a new national 

government. The product of this convention was the 

Constitution of the United States.

II. Framing the Constitution of the United States1

―We the people of the United States, in order to form a 

more perfect Union ... do ordain and establish this Constitution 

of the United States of America ...‖ So begins the most 

important document in American governance. It is the 

cornerstone, the foundation upon which is built the relationship 

between the citizens and their government. The Constitution 

defines the rights, privileges and responsibilities of the people 

and limits government authority over the people. It is a 

contract between the people and the government. The people 

are bound by the laws of the government and the government is 

bound by the provisions and principles of the Constitution. 

Our government is, emphatically and truly, a government of the 

people. In form and in substance, the government emanates 

from the people. Its powers are granted by them to be exercised 

directly on them for their benefit. The authority to govern is 

derived from the consent of the people to be governed.

III. The Constitution as a “Living Document”

No study of the United States Constitution is ever 

complete because the Constitution is considered a ―Living 

Document.‖ It is subject to amendment by Legislative action. 

(See Article V). In the 200 plus years of its existence, there have 

been over 2,000 formal proposals to amend the Constitution. 

Only 27 have been adopted. Even though this process is 

obviously not the primary source of the Constitution‘s flexibility, 

 

1 The U.S. Constitution and its amendments are located in the companion 

book, Legal Division Reference Book, in the segment entitled ―Additional 

Resources Section.‖
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amendments have provided significant principles and 

paradigms that go to the core of our philosophy of government.

The manner in which the people at large, the Legislatures, 

and particularly the United States Supreme Court justices, view 

the Constitution creates gradual, subtle changes in the way it is 

interpreted. The Constitution is more than just the written 

document. In the words of the late Chief Justice Charles Evans 

Hughes, ―The Constitution is what the judges say it is.‖ 

Changes in interpretation are often due to changes in the social 

climate. Thus, although there has been no substantive change 

in the language of the Constitution, many Supreme Court 

decisions interpreting constitutional issues have altered police 

street-level enforcement tactics and procedures. For example, 

the Fifth Amendment right that no person ―shall be compelled 

in any criminal case to be a witness against himself‖ has not 

changed in over 200 years; however, to protect that right, the 

Supreme Court requires police officers to advise suspects of 

their Miranda rights during custodial interrogations.

Lord Blackstone once commented that the United States 

Constitution is the most remarkable document ever written by 

mankind, for the Constitution is constantly evolving to meet the 

requirements of an ever changing society. Our society has 

changed in dramatic and radical ways since the Constitution 

was originally written and ratified. Although the drafters could 

never have anticipated computers, the Internet, airplanes and 

automobiles, radio and television, they understood that 

Constitutional principles would be applied to facts, 

circumstances and situations that were not contemplated by 

them. In the words of James Madison, generally regarded as the 

―father of the Constitution,‖ ―In framing a system we wish to 

last for ages, we should not lose sight of the changes that ages 

will bring.‖ Our ever-changing society will continue to require 

the application and interpretation of these bedrock 

constitutional principles to new and novel circumstances. 

Because of the changes in the Constitution, both substantive 

and interpretive, and changes in its application to our 

developing society and culture, law enforcement officers must
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never cease referring to constitutional law for guidance when 

performing official duties.

IV. Relevance to Law Enforcement

The Constitution is the source of all federal law. All 

federal laws must be grounded in the Constitution, for it is from 

this source only that they derive their authority. Article I, 

Section 8 grants to Congress the authority to make laws 

regarding specific subjects. Our government is one of 

enumerated powers, and it can exercise only the powers granted 

to it. The Constitution specifically limits the powers of the 

federal government. The powers not specifically delegated to the 

United States by the Constitution, nor prohibited by it to the 

States, are reserved to the States or to the people.

The United States Constitution, even though limiting in 

its construct, is the supreme law of the land. Other laws may 

deal with matters not specifically considered in the 

Constitution, but no law, be it state or federal, can conflict with 

the Constitution (see Article VI).

The Constitution, as a covenant between the government 

and the people, both grants powers to and limits the powers of 

law enforcement officers. The authority of the Executive 

Branch, to which most law enforcement agencies belong, is 

specifically defined by the Constitution. So too are the rights, 

protections and privileges that are guaranteed to the people. 

The focus of the Constitution is the relationship between the 

government and the people. Therefore, it applies to government 

action, not private conduct. Federal law enforcement officers 

must affirm their personal commitment to this contract between 

the people and the government. That is why federal law 

enforcement officers and agents take a solemn oath to 

―preserve, protect and defend the Constitution of the United 

States of America . . .‖ They must know constitutional law not 

only to protect the rights of one citizen from infringement by 

another, but especially to ensure that while acting as an arm of
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the federal government, the constraints and limitations imposed 

by the Constitution are not violated.

V. Organization of the Federal Government

Among the significant innovations of the Constitution 

were the separation of powers and the creation of a system of 

checks and balances. The authors of the Constitution, 

distrustful of a strong centralized government, divided the 

federal authority among three separate but equal branches of 

government.

A. The Legislative Branch

Another innovation of the Constitutional Convention was 

the division of the Congress into two houses, an upper house 

(The Senate) with equal representation for each state and a 

lower house (The House of Representatives) with proportional 

representation based upon population. This provision, 

sometimes called the Great Compromise, was a solution to the 

conflicting demands for equal representation by the small states 

(Patterson Plan) and proportional representation by the large 

states (Virginia Plan).

The Legislative Branch (Congress) enacts laws as provided 

in Article I, Section 8. This section provides the specific powers 

of the legislative branch, which are enumerated below:

The power to lay and collect taxes, duties, imposts 

and excises, and the power to provide for the 

common defense and general welfare.

The authority to borrow money on the credit of the 

United States.

The power to regulate interstate and foreign 

commerce.

The power to establish rules of naturalization and 

laws relating to bankruptcies. 
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The authority to coin money, to regulate the value 

thereof, and to fix the standards of weights and 

measures.

The power to provide for the punishment of 

counterfeiting the securities and current coin of the 

United States.

The authority to establish post offices and post 

roads.

The jurisdiction to secure to authors and inventors 

the exclusive right to their respective writings and 

discoveries.

The prerogative of establishing judicial tribunals 

inferior to the Supreme Court.

The right to make and enforce laws related to 

piracies and felonies committed on the high seas 

and offenses against the laws of nations.

The power and responsibility for declaring war and 

making rules concerning captures on land and 

water.

The responsibility to raise and support armies.

The power to provide and maintain a navy.

The authority to make rules for the government and 

regulation of the land and naval forces.

The power to provide for calling forth the militia to 

execute the laws of the Union, suppress 

insurrection, and repel invasions.

Limited authority to organize, arm, discipline and 

train the militia. 
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The exercise of exclusive legislative control over the 

seat of government in Washington and other federal 

installations.

B. The Executive Branch

The Executive Branch (The President), to which most law 

enforcement agencies belong, implements and enforces the law 

as provided in Article II. The President also has collateral 

powers which include duties as commander in chief of the 

military, the ability to enter into treaties with foreign nations, 

the power to veto acts of Congress, to grant pardons for federal 

crimes, and to appoint members of the administration, such as 

cabinet members, Ambassadors, United States Attorneys, and 

United States Marshals, as well as all Federal Judges from the 

Supreme Court down to the Federal District Courts.

The Vice President is second in command, with the 

Cabinet below. The cabinet consists of the Secretaries of the 

various major Departments, such as Homeland Security, State, 

Treasury, Justice, Defense, Interior, and Health and Human 

Services. The President is charged with the execution and 

enforcement of the laws of the United States. The Department of 

Justice is the executive department most concerned with the 

litigation involving these laws.

The chief executive officer of the Department of Justice is 

the Attorney General, who supervises all United States 

Attorneys and all federal criminal cases, unless a specific law to 

the contrary exists. Duties of the Attorney General include 

prosecuting criminal actions and prosecuting or defending in 

civil actions in which the United States is concerned. United 

States Attorneys are, as with the Attorney General, appointed 

by the President, with the advice and consent of the Senate. 

The United States Attorney is the principal officer of the 

Department of Justice in each judicial district. A United States 

Attorney is appointed for a term of four years and is subject to 

removal by the President. Assistant United States Attorneys 

are appointed by the Attorney General and are subject to

removal by the Attorney General. 
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C. The Judicial Branch

The Judicial Branch (The Court) interprets laws through 

its decisions as provided in Article III. The Constitution is 

unique in that Article III establishes only one court, the 

Supreme Court. As already mentioned above, all inferior courts 

are created by act of Congress.

The Supreme Court is composed of nine members 

appointed by the President with the consent of the Senate. The 

Constitution does not set the number of justices that constitute 

the Supreme Court. The number is determined by Congress. 

Justices serve for life on good behavior.

The Supreme Court has both original and appellate 

jurisdiction. The Supreme Court‘s original jurisdiction is very 

narrow, extending only to cases involving ambassadors, public 

ministers, consuls and those in which a State is a party. In 

practice, the Supreme Court delegates its original jurisdiction to 

the lower courts. The Supreme Court has appellate jurisdiction 

in all cases arising under the Constitution, the laws of the 

United States, or treaties made by the federal government, and 

citizens of different states. The Supreme Court‘s appellate 

jurisdiction may be further limited by ―such Exceptions, and 

under such Regulations as the Congress shall make.‖

There are thirteen (13) Circuit Courts of Appeal. Courts 

of Appeal have appellate jurisdiction only. A case is never taken 

to a Circuit Court of Appeals initially.

There are ninety-four (94) United States District Courts. 

District Courts have original jurisdiction in all cases involving 

offenses against the United States and in certain civil cases 

where the United States is a party or where jurisdiction is based 

on the amount in controversy and a diversity of citizenship.

D. A System of Checks and Balances

In order to ensure that no single branch of government 

becomes excessively strong, a system of checks and balances 
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creates complex interrelationships between the branches. Each 

branch exercises a certain degree of control over the other two. 

There are many examples of this complex arrangement, but the 

following are a few of the more important ones:

The Congress can pass laws, but the President may 

veto them.

By a 2/3 vote of each house, the Congress can 

override the President‘s veto.

The President appoints Justices to serve on the 

Supreme Court, but the Senate must approve them. 

Once confirmed, the Justices serve for life or good 

behavior.

The President can be impeached and tried by the 

Congress, as can all federal judges, including 

Justices of the Supreme Court.

The Congress can establish Federal Courts inferior 

to the Supreme Court and, with certain limitations, 

can regulate the appellate jurisdiction of the 

Supreme Court.

Only Congress can appropriate the funds necessary 

to run the government.

Congress can pass laws and even appropriate the 

money to run the government, but the President 

can choose not to implement and enforce the laws.

The Supreme Court can declare laws passed by 

Congress and signed by the President to be 

unconstitutional. There is no specific authority in 

the Constitution for this power. In 1803, the 

Supreme Court itself held that the United States 

Constitution authorized it to declare an act of 

Congress unconstitutional. That case, Marbury v. 

Madison, involved an act of Congress that
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expanded the original jurisdiction of the Supreme 

Court. The Court said that a law that is repugnant 

to the Constitution is void.

VI. Amendments to the Constitution

The Constitution provides many safeguards through the 

checks and balances system against an excessively strong and 

potentially abusive central government. However, many 

scholars speculate that the Constitution would not have been 

ratified but for assurances that one of the first priorities of the 

new government would be the passage of a Bill of Rights. In 

fact, although ratification passed in each state, votes in several 

states were very close. Twelve proposed amendments were 

submitted for ratification in late 1789. Proposed amendments 1 

and 2 failed ratification, although number 2 eventually passed 

and became the 27th Amendment. The Bill of Rights is 

embodied in proposed amendments 3-12, the first Ten 

Amendments of the Constitution, which were ratified in 1791. 

Of particular interest to law enforcement officers are the First, 

Fourth, Fifth, Sixth, (and later, the Fourteenth) Amendments of 

the Constitution. These amendments proscribe government 

conduct that infringes on the rights established there. Those 

amendments do not deal with private actions that, if committed 

by government agents, officers, or employees, would clearly 

violate those rights.

A. First Amendment

[Note: Students in LMPT will skip subsections VI A.2 

―Speech‖ and VI A.3 ―Peaceful Assembly,‖ below, and read

FIRST AMENDMENT

Congress shall make no law respecting an establishment 

of religion, or prohibiting the free exercise thereof; or 

abridging the freedom of speech, or of the press; of the 

right of the people to peaceably assemble, and to 

petition the government for a redress of grievances.
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section VIII, ―Controlling Speech under the First Amendment,‖ 

instead.]

The First Amendment protects personal belief, opinion, 

and action. It addresses four basic freedoms that are necessary 

for a free society functioning within a democratic government. 

Those rights are freedom of religion, freedom of speech, freedom 

of the press, and the dual right to assemble peaceably and to 

petition the government. Are these rights absolute, or can the 

government regulate these freedoms? It has generally been held 

by the Supreme Court that a balance is required between First 

Amendment freedoms and the powers of a government to govern 

effectively. Supreme Court decisions throughout the 20th 

century balanced First Amendment rights with the 

requirements of public order, and the Supreme Court has 

removed certain conduct from First Amendment protections. 

Even these basic freedoms are subject to regulation. Federal 

law enforcement is often on the front line of the conflicts 

between this government regulation and the exercise of these 

basic freedoms by the people.

1. Religion

Two provisions, the establishment clause and the free 

exercise clause, protect freedom of religion. The Establishment 

Clause prohibits the government from establishing a religion or 

showing favoritism to a particular church or sect. We talk now

in terms of ―separation of church and state.‖ Government 

action, including laws enacted by the government, must have a 

secular purpose; that is, the action must have a primary effect 

that neither advances nor inhibits religion.

The Free Exercise Clause prevents the government from 

interfering with religious practices. The people have a right to 

believe whatever they want; however, problems arise when 

those beliefs endorse criminal conduct. A law with a legitimate 

secular purpose (not targeted at religion) may incidentally affect 

religious practices without violating the First Amendment. For 

example, criminal statutes proscribing possession of controlled 

substances are not aimed at religion; but may incidentally affect 
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some Indian religious practices because they prohibit the use 

and possession of peyote.

2. Speech

[Students in LMPT will skip this subparagraph and read 

section VIII, instead.]

The people have a First Amendment right to express their 

thoughts and ideas. Expression, even that which is offensive 

and ―anti-American,‖ is protected against government 

interference under the First Amendment unless the government 

can prove that it falls within an unprotected category. Some of 

those unprotected categories of speech follow:

(a) Speech constituting a clear and present 

danger

Yelling, ―fire!‖ in a crowded theatre is likely to get 

someone trampled to death. Knowingly conveying false 

information about an impending peril is punishable. For 

example, a joke about a bomb on an airplane is proscribed 

under 18 U.S.C. § 32(a)(6). (A more complete discussion is at 

paragraph VIII F. 4)

(b) Advocating imminent lawless action

Historically, the people have not only criticized the United 

States, but advocated its laws be ignored and government 

overthrown. Sometimes called political speech, advocacy of this 

nature in public forums is protected under the First 

Amendment, unless it is directed to incite or produce imminent 

lawless action and is likely to incite or produce such action. (A 

more complete discussion is at paragraph VIII F.3)

(c) Fighting words

Fighting words are ―those words which by their very 

utterance inflict injury or tend to incite an immediate breach of 

the peace.‖ More than profanity, they are an invitation to fight. 
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Uttering fighting words to another person can be a crime. 

Profane words alone, unaccompanied by any evidence of violent 

arousal, are not fighting words, and, therefore, are protected 

speech.

The fighting words doctrine is at its narrowest, if it exists 

at all, with respect to speech directed at public officials like 

police officers. Police officers are expected to exercise a higher 

degree of restraint than the average citizen. Moreover, 

Americans have a Constitutional right to criticize their 

government and government officials. In Lewis v. City of New 

Orleans, the Supreme Court found unconstitutional a

municipal ordinance that made it a crime ―for any person 

wantonly to curse or revile or to use obscene or opprobrious 

language toward or with reference to any member of the city 

police while engaged in the performance of duty.‖ Freedom to 

verbally oppose or challenge police action without thereby 

risking arrest is one of the principal characteristics by which we 

distinguish a free nation from a police state. In essence, 

―contempt of cop‖ is not a crime. (A more complete discussion 

is at paragraph VIII F.1)

(d) Obscenity

The Supreme Court defined obscenity this way: ―whether 

to the average person, applying contemporary community 

standards, the dominant theme of the material taken as whole 

appeals to prurient interests.‖ ―Prurient‖ means material 

having a tendency to excite lustful thoughts, below normal or 

healthy sexual desires. It‘s grossly offensive to modesty, 

decency, or propriety. It shocks the moral sense, because of its 

vulgar, filthy, or disgusting nature, or its tendency to incite 

lustful thought. It must violate community standards. For 

example, the First Amendment does not protect possession of 

child pornography. Child pornography is depictions of ―actual 

children‖ under the age of 18 engaged in sexually explicit acts. 

Ashcroft v. Free Speech Coalition. Several federal statutes 

proscribe obscenity. Title 18 U.S.C. § 2252A proscribes 

possession of child pornography that has been transported in 

interstate commerce. Title 18 U.S.C. § 1460 prohibits 
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possession with intent to sell or the sale of any obscene 

material on federal property.

(e) Fraudulent misrepresentation

Fraud, perjury, libel, and slander receive no protection 

under the First Amendment. A fraud is a misrepresentation of 

a material fact and is intended to cheat people out of their 

property. Libel and slander are not protected; no one may 

knowingly utter (slander) or write (libel) false and malicious 

statements about another. Perjury is lying under oath. 

(f) True threats

A true threat is a crime. The defendant must intentionally 

and knowingly communicate a threat; that is, a clear or present 

determination or intent to injure someone presently or in the 

future. Secondly, the speaker must make the threat under 

circumstances that would cause a reasonable person to believe 

that he is serious about executing the threat. A more complete 

discussion is at paragraph VIII F.2.

3. Peaceful Assembly

[Students in LMPT will skip this subparagraph and read 

section VIII, instead]

The people may attempt to assemble and exercise their 

First Amendment freedoms on private property, non-public 

forums, and public forums. The right of the people to assemble 

in these areas is described below.

A speaker does not have a First Amendment right to 

express his views on another person‘s private property. A 

grocery store owner, for example, can stop an anti-war activist‘s 

speech in his store, and if the activist refuses to leave, sue or 

seek to prosecute for trespassing.

Non-public forums are under government control; but, 

are not open for public expression. Military bases are non-
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public forums. The Federal Law Enforcement Training Center is 

another. The government can prohibit demonstrations on 

FLETC for security reasons and to reduce student distractions.

Public forums are where the people have traditionally 

exercised First Amendment freedoms. First Amendment 

freedoms are highest in public forums. Public forums include 

public streets, sidewalks, and parks. The U.S. Park Service has 

jurisdiction over one of the nation‘s most-frequented public 

forums - the National Mall.

The people, however, do not have unfettered access to 

public forums. Demonstrators cannot march down a public 

street anytime they wish. The government can require 

demonstrators to get a permit. Permits may restrict the time, 

place, and manner of expression. Time, place, and manner 

restrictions have the incidental by-product of interfering with 

the speaker‘s message; however, they will be upheld if they 

serve a significant government purpose and are not intended to 

restrict the speaker‘s message. (A more complete discussion is 

at paragraph VIII D.2.)

B. Fourth Amendment

The Fourth Amendment prohibits unreasonable 

government searches and seizures. These rights are covered in 

more detail in a following chapter; however, some general 

principles are described below.

The Fourth Amendment protects ―the people,‖ meaning 

those having a substantial connection to the United States. 

FOURTH AMENDMENT

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and 

seizures, shall not be violated, and no warrants shall issue, 

but upon probable cause, supported by oath or affirmation, 

and particularly describing the place to be searched, and the 

persons or things to be seized.
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People inside the United States, its territories, or possessions 

have such a connection, whether they are U.S. citizens or not. 

U.S. citizens receive Fourth Amendment protections, whether in 

the United States or abroad. Still, not everyone is protected. 

For example, the Fourth Amendment does not apply when a

DEA agent searches a foreign national‘s property in a foreign 

country.

The Fourth Amendment protects people from instruments 

or agents of the federal or a state government. A Naval Criminal 

Investigative Service agent is a federal agent and must follow 

the Fourth Amendment when searching a U.S. Marine‘s 

property, whether that property is in the U.S. or overseas. 

However, the Fourth Amendment does not protect the people 

from purely private searches. A nosy neighbor, for example, 

does not trigger Fourth Amendment protections.

The Fourth Amendment protects the people from 

unreasonable government searches and seizures. The Fourth 

Amendment applies whenever agents seize a suspect‘s property,

seize the suspect, search the suspect or his property, or do all 

of those things. All searches and seizures must be reasonable.

A ―search‖ under the Fourth Amendment is defined as a 

government intrusion into a place where the people have a 

reasonable expectation of privacy (e.g., a house). Once those 

two conditions are met, the search must be reasonable. To be 

reasonable under the Fourth Amendment, government agents 

are normally required to get a warrant supported by probable 

cause.

―Probable cause‖ means there are facts and 

circumstances that would lead a person of reasonable caution 

to believe that evidence of a crime will be located in the place to 

be searched. Agents are required to gather these facts and 

present them to a judge in a search warrant application. The 

application has three parts: where the agents intend to search; 

what they are searching for; and, why that evidence is located 

in the place to be searched. The judge will review the search 

warrant application and issue the warrant, provided the judge 
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finds sufficient probable cause that evidence of a crime will be 

located in the place to be searched. A federal or state court 

judge of record in the district where the property is located may 

authorize the search.

Warrantless searches and seizures of property are 

unreasonable, unless the agent can identify a reasonable 

exception. There are several exceptions to the warrant 

requirement. Consent is one. With voluntary consent from 

someone with either actual or apparent authority over the place 

to be searched, agents do not need a warrant.

What happens if agents search without a warrant or a 

reasonable exception to the warrant requirement? With few 

exceptions, the evidence is suppressed. The ―exclusionary rule‖ 

is a judicially created remedy that prevents the government 

from using evidence obtained in violation of the Constitution to 

convict the defendant at trial. Again, the exclusionary rule is 

judicially created; the rule does not appear in the Constitution. 

The Supreme Court first applied the rule in 1914 for a Fourth 

Amendment violation, but the rule has been expanded to most 

Fifth and Sixth Amendment violations as well.

C. Fifth Amendment

Many concepts covered under the Fifth Amendment will 

be addressed in later legal courses, but several terms deserve 

explanation.

FIFTH AMENDMENT

No person shall be held for a capital or otherwise infamous 

crime, unless on a presentment or indictment of a Grand 

Jury, except in cases arising in the land or naval forces, or in 

the Militia, when in actual service in time of War or public 

danger; nor shall any person be subject for the same offence 

to be twice put in jeopardy of life or limb; nor shall be 

compelled in any criminal case to be a witness against 

himself, nor be deprived of life, liberty, or property, without 

due process of law; nor shall private property be taken for 

public use without just compensation.
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1. Double Jeopardy

Double jeopardy means to be tried twice, by the same 

sovereign, for the same offense. The Constitution prohibits 

prosecutors from repeated prosecutions until a conviction is 

ultimately obtained. Thus, once the accused is acquitted, the 

same sovereign cannot retry the defendant for the same crime, 

even if he confesses to his guilt or new evidence is found. The 

following situations, however, are NOT double jeopardy:

(a) Dual Sovereignty

One who commits a single act, which violates the laws of 

two sovereigns, can be tried by both. For example, someone 

who robs a federally insured bank in Brunswick, Georgia, can 

be prosecuted by the state and, regardless of the state court 

verdict, can be prosecuted again for the same acts in federal 

district court.

(b) Mistrial

A mistrial is a serious procedural error that stops the 

trial. If at any time prior to the verdict, a judge declares a 

mistrial, the trial becomes void and does not prevent the 

accused from being tried again. A mistrial might be declared in 

any case in which the judge feels the ends of justice cannot be 

served. For example, jury tampering and a hung jury are all 

grounds for a mistrial. If, however, the mistrial is deliberately 

caused by the prosecution, double jeopardy may attach, 

preventing retrial.

(c) Nolle prosequi (nol pros)

Nolle prosequi is a formal entry upon the record by the 

prosecutor by which he or she declares that the government 

―will not further prosecute‖ the case, either as to some of the 

counts, or some of the defendants, or both. A nol pros does not 

bar prosecution at a later time, as long as the nol pros is made 

before the swearing of the jury in a jury trial or before the

swearing of the first witness in a bench trial. Once the abovementioned events have occurred, jeopardy attaches.
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(d) Remand of the case

A remand is when an appellate court sends a case back to 

the trial court due to an error committed in the original trial.

2. Self-Incrimination

The self-incrimination clause of the Fifth Amendment is 

covered in depth in a following chapter, but some general 

observations are appropriate. While the Fourth Amendment 

concerns government searches for physical evidence, the Fifth 

Amendment‘s self-incrimination (SI) clause focuses on 

government interrogations seeking communicative evidence. 

Government interrogation means words or actions likely to elicit 

an incriminating response (e.g., ―Did you do it?‖). 

Communicative or testimonial evidence from the suspect can be 

verbal (e.g., ―Yes I did‖), written, or non-verbal (nodding); in any 

case, however, it requires the accused to use a thought process 

about the crime. Booking information, finger prints and 

physical evidence do not require a thought process and 

therefore, do not present a Fifth Amendment (SI) issue.

The SI clause affords protection from federal and state 

government agents. Agents cannot compel suspects to 

incriminate themselves in a U.S. criminal trial. However, if 

there is no potential for future prosecution, the SI clause is 

inapplicable. For example, a person can be compelled to 

answer an agent‘s questions about a crime if the statute of 

limitation for that offense has expired, the defendant was 

acquitted on that charge, or immunity from prosecution is 

granted.

The Fifth Amendment SI clause protects suspects from 

government coercion. Statements must be voluntary. Miranda

warnings protect suspects from the coercive aspects of a police 

dominated atmosphere. A police dominated atmosphere occurs 

when a known police officer interrogates a suspect in a 

custodial setting. Prior to such interrogation, the suspect must 

be advised of his Miranda rights.
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3. Grand Jury Indictment

All ―infamous‖ crimes must be prosecuted by grand jury 

indictment. ―Infamous‖ means felony offenses. The accused can 

waive indictment in all but capital cases. Law enforcement 

agents will often be called upon to testify at grand juries.

4. Due Process of Law

No person may be denied life, liberty or property without 

due process of law. Due Process is a body of rules and 

procedures incorporated into our judicial system and designed 

to ensure fundamental fairness and to protect private rights. It 

directly impacts several important law enforcement practices 

such as show-ups, line-ups, and photo arrays. If they are 

overly suggestive, they violate this provision of the Fifth 

Amendment.

D. Sixth Amendment

Many of the federal criminal procedural rules have their 

origins in the Sixth Amendment. It is here that we find the 

constitutional bases for several important rights:

1. Speedy Trial

The Sixth Amendment affords an accused the right to 

speedy trial . As a result of the Speedy Trial Act of 1974, 18 

U.S.C. § 3161, all persons charged with a federal crime must be 

SIXTH AMENDMENT

 In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial, by an impartial jury of the 

State and district wherein the crime shall have been 

committed, which district shall have been previously 

ascertained by law, and to be informed of the nature and 

cause of the accusation; to be confronted with the witnesses 

against him; to have compulsory process for obtaining 

Witnesses in his favor, and to have the Assistance of Counsel 

for his defense. 
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brought to trial within specified timeframes. Generally, trial 

must commence within 100 days after arrest. Excludable 

delays are possible; however, officers must be aware of the time 

limits. They are covered in depth in Federal Court Procedures.

2. Confrontation of Witnesses

The Sixth Amendment affords the accused the right to 

confront the witnesses against him. This right provides the 

accused with the most effective way of challenging the accuracy 

of testimony, and it is the only fair way to permit a jury to 

decide what weight it will give the testimony.

3. Compulsory Process

The Sixth provides the defendant with the power to 

subpoena witnesses in his behalf, thus balancing the 

prosecution‘s power to subpoena witnesses against the accused.

4. Assistance of Counsel

The defendant has a Sixth Amendment right to assistance 

of counsel regarding the offenses with which he is charged. 

This right begins when the accused is indicted by grand jury, an 

information is filed by a prosecutor, or at the initial appearance. 

Any of those three events is said to commence the adversarial 

process and triggers the right. Once triggered, the accused has 

the right to counsel at all critical stages of the prosecution. A 

critical stage includes post-indictment police interrogation 

about the indicted offense. As a result, the Sixth Amendment 

often has the ancillary effect of causing the accused to invoke 

his privilege against self-incrimination.

5. Informed of the Nature and Cause of Charges

This right forms the basis for the Initial Appearance. It is 

typically at the Initial Appearance when the Criminal Complaint 

and Search Warrant are returned, that the accused is first

formally told of the charges and informed of other constitutional 

rights. 
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6. Venue

Jurisdiction is the power and authority of a court to deal 

with a person or particular subject matter. Original jurisdiction 

for the prosecution of federal crimes rests with the Federal 

District Court. Venue deals with the actual location of the 

trial. Absent extraordinary circumstances, venue is proper (the 

trial will take place) in the State and district where the crime 

was committed.

E. Eighth Amendment

The purpose of bail is not to punish, but rather to allow 

the pretrial release from custody of a person who is presumed 

innocent until proven otherwise. At the same time, bail 

provides the government with a reasonable assurance that the 

defendant will, in fact, appear at the next stage in the judicial 

proceedings. What is considered to be ―excessive‖ is difficult to 

determine, but generally the bail should be the absolute 

minimum that will reasonably assure the appearance of the 

accused (see 18 U.S.C. § 3141 et seq.). Many factors may be 

taken into consideration by a judge or magistrate when setting 

bail. Among them are:

The seriousness of the crime.

Whether a weapon was used.

Whether the defendant attempted to avoid arrest.

Whether the defendant is a drug addict, alcoholic, 

or mentally disturbed.

Whether defendant has a family.

EIGHTH AMENDMENT

Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted.
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Employment history of the defendant.

Financial status of the defendant, including real 

and personal assets.

Prior criminal record, especially prior record of 

appearance if previously released on bail.

The Bail Reform Act of 1984 changed the entire 

perspective on this issue. Rather than the accused being 

required to show why release is appropriate, the government 

must show sufficient reason why the accused should remain in 

custody. You must investigate and develop evidence relevant to 

this critical issue. You must be prepared to explain the

government‘s position regarding pretrial release and be able to 

articulate the evidence supporting the recommendation to the 

Magistrate Judge at the Initial Appearance or bond hearing.

F. Fourteenth Amendment

All of the preceding amendments fall within the Bill of 

Rights. Adopted in 1791, the Bill of Rights limits the power of 

the federal government. Following the Civil War, Congress 

enacted the Fourteenth Amendment, which selectively 

incorporates the fundamental rights in the Bill of Rights and 

makes them applicable to the states. Today, if a federal agent 

conducts an unreasonable search and seizure, that agent 

violates the Fourth Amendment. If a state agent does so, he

violates the Fourth Amendment as made applicable to the 

states through the Fourteenth Amendment.

VII. Criminal Justice Components from the Constitution

Various components of the criminal justice system may 

be traced directly to the Constitution and its amendments. For 

instance, the right to a trial by jury is found in Article III, 

Section 2.

The amendments incorporate many additional 

components of the criminal justice system. The Fourth 
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Amendment protects people from the unreasonable search and 

seizure of their persons and properties. The Fifth Amendment 

includes the rights to be free from compelled self-incriminating 

testimony, to generally have felony cases presented to grand 

juries for indictment, to be free of double jeopardy and to enjoy 

the fundamental fairness of due process. The Sixth 

Amendment guarantees the defendant rights at trial. For 

instance, the accused is assured of ―a speedy and public trial,‖ 

an impartial jury, the venue for a trial, the right to be informed 

of the charges, to confront witnesses, to subpoena witnesses 

and to have the assistance of counsel. The Eighth Amendment 

protects the defendant from excessive bail or cruel and unusual 

punishment.

VIII. Controlling Speech under the First Amendment

[This section is intended for LMPT students.]

A. Generally

The people have a First Amendment right to express their 

thoughts and ideas in public forums. Expression can be 

offensive, even ―anti-American‖; nonetheless, expression is 

protected unless the government can prove it falls within one of 

the unprotected categories in paragraphs E and F, below. 

Rights of expression are greatest in public forums. Public 

forums are places where the people have traditionally exercised 

their First Amendment rights. National parks are public 

forums, which is why Land Management students receive this 

instruction.

B. Government Action

The First Amendment provides that ―Congress shall make 

no law ... abridging the freedom speech, or of the press; or the 

right of the people peaceably to assemble, and to petition the 

Government for redress of grievances.‖ Literally, the First

Amendment restricts Congress; in practice, it protects the 

people from any branch of government, state or federal.
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The First Amendment falls within the Bill of Rights. 

Adopted in 1791, the Bill of Rights limits the power of the 

federal government. Following the Civil War, Congress enacted 

the Fourteenth Amendment, which selectively incorporates the 

fundamental rights in the Bill of Rights and makes them 

applicable to the states. Today, if a federal agent unduly 

restricts expression, that agent violates the First Amendment. 

If a state agent does so, he violates the First Amendment as 

made applicable to the states through the Fourteenth. Private 

action, however, never triggers First Amendment protections, no 

matter how unreasonable it might be.

C. Expression

The First Amendment rights of freedom of speech or of 

the press; or the right of the people peaceably to assemble are 

often grouped together and called freedom of expression. The 

First Amendment protects the people from unreasonable 

government restrictions expressing their thoughts and ideas.

The people have expressed themselves through the 

written word, the spoken word, symbols, and conduct. The 

Federalist Papers, for example, were a series of articles written 

by Alexander Hamilton, James Madison, and John Jay to gain 

support for the Constitution. Dr. Martin Luther King‘s ―I Have a 

Dream‖ speech was a catalyst behind the Civil Rights Act of 

1964. Symbols and conduct also receive First Amendment 

protection when there is intent to convey a particular message 

and the likelihood is great that the message will be understood 

by those who view it. John F. Kennedy Jr. saluting the flag 

draped coffin of his father comes to mind.

Today, most Americans have come to accept Dr. King‘s 

beliefs about religious and racial equality; but, there was a time 

when that issue was hotly debated. Leading one side was Dr. 

King. In August 1963 on the steps of the Lincoln Memorial he 

spoke about his dream, ―...that one day, down in Alabama, 

...little black boys and black girls will be able to join hands with 

little white boys and white girls as sisters and brothers.‖ King 

mentioned Alabama for a purpose, because on the other side of 
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the debate was George Wallace, the elected governor of 

Alabama. At his inaugural address that year, the Governor 

assured the people there would be ―...segregation today... 

segregation tomorrow... segregation forever.‖

From a law enforcement perspective, the point to 

remember is this: the First Amendment protects both sides–

Dr. King‘s and Governor Wallace‘s. It‘s not the government‘s 

place to control ideas because they are wrong, offensive, or antiAmerican. Justice Holmes stated, there is to be a ―free trade in 

ideas,‖ and the truth will become accepted through the 

―competition of ideas.‖ In essence, the Constitution gives 

Americans the right to express their ideas, and the 

responsibility to pick the best one. Those ideas, whether good, 

bad, or ugly, are protected unless shown likely to produce a 

clear and present danger of serious substantive evil that rises 

far above just offending someone. Some examples of protected 

expression follow:

Expressing disapproval (through the spoken word) 

of Canada‘s decision not to support Operation Iraqi 

Freedom by shouting, ―F--- Canada‖ as the 

Canadian flag passed in a parade.

Expressing disapproval (through the written word) 

of the Vietnam War by sewing the words, ―F--- the 

Draft‖ on the back of a jacket.

Expressing disapproval of American policy (through 

speech and conduct) by dousing an American flag 

with kerosene, setting it on fire, and chanting, 

―America, the red, white, and blue, we spit on you.‖

Wearing and displaying symbols of racial 

superiority, like the Nazi uniform and Swastika.

D. Government Restrictions

Historically, the government has attempted to restrict 

expression for two reasons.
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1. Content-Based Restrictions

First, the government may not like a speaker‘s message or 

may fear that the idea will offend the listener and try to restrict 

it somehow. These are ―content-based‖ restrictions. They are 

intended to control the communicative impact of the message 

on the listener. Content-based restrictions are subject to strict 

scrutiny by the courts and almost invariably struck down. 

(Again, it‘s not the place of the government to restrict ideas, 

even offensive ones.)

―When the Nazis Came to Skokie – Freedom for Speech 

We Hate‖ by Philippa Strum provides an excellent example of 

government, content- based restrictions on speech. In the late 

1970‘s, the Chicago suburb of Skokie was predominately 

Jewish. One out of every six Jewish citizens was a survivor or 

directly related to a survivor of the Holocaust. When a neo-Nazi 

group announced its intention to demonstrate there in 1977, 

the city enacted ordinances prohibiting ―public display of 

markings and clothing of symbolic significance.‖ In effect, the 

ordinances prohibited the Nazis from wearing their brown-shirt 

uniforms and flying the Swastika. These government 

restrictions were intended to protect Jewish citizens from the 

communicative impact (shock affect) of the Nazis‘ message. As 

such, they restricted ideas and were struck down by the courts. 

Ironically, a Jewish Attorney working for the American Civil 

Liberties Union won the case for the Nazis.

Finding government action content-based is normally its 

death blow. In strictly scrutinizing such action, the court will 

require the government to prove that restricting the idea not 

only serves a compelling state interest, but is also narrowly 

drawn to achieve that end. Of course, averting violent clashes 

between two competing crowds (the Nazis and the Jews) is a 

compelling state interest. That, however, is not enough. The 

government must also show that the state interest is not 

achievable through some alternative other than restricting the 

message. For example, if the police can control the crowd to 

avert violence, the restriction is not narrowly drawn, and the 

court tosses it into the unconstitutional scrap heap. (More 
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often the Government is unable to prove to the court why the 

police cannot control the crowd.)

The following are examples of unconstitutional, contentbased government restrictions intended to control the 

communicative impact on the listener.

Arresting a protester at a parade for shouting, ―F---

Canada‖ as the Canadian flag passed.

A Texas statute that prohibited the desecration of a 

state or national flag in a way which seriously 

offends one or more persons likely to observe that 

act.

Reducing a Ku Klux Klan march in Washington 

D.C. from 14 blocks to 4 based on the crowds 

potentially violent reaction to the Klan‘s message.

2. Content-Neutral Restrictions in Public Forums

The second reason the government may restrict 

expression has nothing to do with the speaker‘s message. 

Content-neutral restrictions seek to avoid some evil 

unconnected to the message. Because they are not aimed at 

controlling ideas, content-neutral restrictions receive less 

scrutiny and are much more likely to pass constitutional 

muster.

Content-neutral restrictions allow the government to 

control expression in public forums. There are three potential 

forums or places for expression – private property, non-public 

forums, and public forums. A speaker does not have a First 

Amendment right to express his views on another‘s private 

property. A grocery store owner, for example, can stop an antiwar activist‘s speech in his store. If the activist refuses to leave, 

the owner can sue or seek to prosecute for trespassing.

Non-public forums are under government control; but, 

are not open for public expression. Military bases are non-
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public forums. The Federal Law Enforcement Training Center is 

another. The government can prohibit demonstrations on 

FLETC for security reasons and to reduce student distractions.

Public forums are where the people have traditionally 

exercised First Amendment freedoms. They include public 

streets, sidewalks, and parks. The U.S. Park Service has 

jurisdiction over one of the nation‘s most-frequented public 

forums, the National Mall.

Nonetheless, people do not have unfettered access to 

public forums. Demonstrators cannot march down a public 

street anytime they wish. The government can require 

demonstrators to get a permit. Permits may restrict the time, 

place, and manner of expression. Time, place, and manner 

restrictions may have the incidental by-product of interfering 

with the speaker‘s message; however, they will be upheld if they 

serve a significant government purpose, are enforced in a 

content- neutral manner, and do not allow government agents 

to use their own discretion about when to issue a permit. 

Agents must strictly adhere to the guidelines in the permitting 

process. Some examples follow:

The U.S. Park Service may require an organization 

to obtain a permit that restricts the time of its 

demonstration in order to prevent one 

demonstration from interfering with another.

The Park Service‘s permitting process may restrict 

where the demonstration takes place in order to 

prevent demonstrations from blocking traffic.

The permit may require sound amplification devices 

(bull horns) to remain under a certain amplification

level in order to prevent the demonstration from 

unduly disturbing other people using the park.

E. Unprotected Conduct

Conduct receives less First Amendment protection than 

other types of expression for a couple of reasons. First, the 
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Supreme Court rejects the view that all conduct can be labeled 

First Amendment expression simply because the person 

engaging in it intends to express an idea. The Constitution 

protects the exposition of thoughts and ideas; violence and 

destruction of another‘s property is not by any stretch of the 

imagination protected expression. Moreover, in criminalizing 

such behavior, the government‘s intent is to stop destructive 

behavior, not ideas. Examples of unprotected conduct follow:

A defendant may be charged with 18 U.S.C. § 111, 

assaulting a U.S. Marine on account of his service 

in Iraq. The statute is content-neutral because it‘s 

intended to protect federal employees, not thoughts 

and ideas about the war.

A defendant may be charged with burning an 

American flag in violation of an ordinance 

prohibiting outdoor fires. The ordinance is 

intended to stop forest fires, not demonstrators 

from dishonoring the flag.

A state criminal statute may prohibit cross burning 

in a public place if done ―with the intent of 

intimidating any person or group of persons.‖ The 

statute distinguishes protected, albeit offensive 

expression (symbols identifying the Ku Klux Klan), 

from criminal conduct (intentional intimidation).

F. Unprotected Speech

While other forms of expression (speech, words, symbols, 

and pictures) receive higher protection than conduct, they, too, 

may fall outside the Constitutional umbrella. Unprotected 

speech resembles unprotected conduct. Like an assault, it‘s 

typically not part of any exposition of ideas. Even if the speech 

does convey some idea in a remote sense, it produces a clear 

and present danger of serious, substantive evil that rises far 

above just offending someone. Still, the Supreme Court keeps 

these unprotected categories of speech tightly circumscribed.
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1. Fighting Words

Fighting words are personally abusive epithets which, 

when addressed to the ordinary citizen, are reasonably likely to 

provoke a violent reaction. More than profanity, they are an 

invitation to fight. Profane words, alone, unaccompanied by 

any evidence of violent arousal, are not fighting words and are, 

therefore, protected.

Fighting words are often proscribed under disorderly 

conduct statutes. For instance, 36 C.F.R. 2.34 prohibits speech 

that is intentionally threatening or menacing. For example:

Sheriff Deputies had probable cause to arrest the 

defendant for fighting words. From a short 

distance, the defendant faced the victims, 

repeatedly yelled ―f--- you,‖ called one victim a ―fat 

son-of-a b----,‖ and made clucking sounds like a 

chicken, as if one of the victims was afraid to fight. 

The court also considered that the night before, the 

defendant had brandished a knife toward the 

victims, which increased the chance for violence. 

That the victims exercised restraint did not change 

the result. A reasonable onlooker could believe that 

the defendant‘s actions were a direct personal 

insult and an invitation to fight.

However, a Nazi demonstrator is not using fighting 

words when he says to a crowd, ―The Holocaust is a 

big lie, made up by the f ---ing Jews.‖ Standing 

alone, these words are not an invitation to fight.

The fighting words doctrine is at its narrowest, if it exists 

at all, with respect to by speech directed at public officials like 

police officers. Police officers are expected to exercise a higher 

degree of restraint than the average citizen. Moreover, 

Americans have a Constitutional right to criticize their 

government and government officials. In Lewis v. City of New 

Orleans, the Supreme Court found unconstitutional a 

municipal ordinance that made it a crime ―for any person 
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wantonly to curse or revile or to use obscene or opprobrious 

language toward or with reference to any member of the city 

police while engaged in the performance of duty.‖ Freedom to 

verbally oppose or challenge police action without thereby 

risking arrest is one of the principal characteristics by which we 

distinguish a free nation from a police state. In essence, 

―contempt of cop‖ is not a crime. For example:

A woman telling a police officer, ―You G—d---

mother f---ing police. I‘m going to the 

Superintendent of Police about this‖ is protected 

expression.

An Arkansas state trooper was denied qualified 

immunity for a Constitutional tort after arresting 

the plaintiff for ―flipping him off.‖ The trooper 

violated the plaintiff‘s right to be free from 

unreasonable seizures because the gesture 

(signifying ―f--- you‖) did not rise to probable cause 

that the plaintiff committed an offense.

But, distinguish mere criticism of police action 

(contempt of cop) from actual interference with law 

enforcement activities. A U.S. Park Service ranger 

was in the process of making an arrest, when the 

defendant (an onlooker) yelled statements of police 

brutality, ―f--- this, f--- that, and this is f---ked.‖ 

The ranger told the defendant to back up. Instead, 

the defendant clenched his fists, stuck out his 

chest, stepped forward, and yelled ―f--- you.‖ The 

court had no problem with the defendant‘s verbal

criticism, but sustained a conviction for violating 36 

C.F.R. 2.329(a)(2) – violating the lawful order of a 

government agent during law enforcement actions.

2. True Threats

While the people may criticize, they may not threaten. 

Federal statutes that proscribe true threats are:
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Title 18 U.S.C. § 115 states in part that ―Whoever -

...threatens to assault ... a Federal law enforcement 

officer (or a member of her immediate family) with 

intent to ... interfere with such official ... while 

engaged in the performance of official duties, or 

with intent to retaliate against such official.... It 

also prohibits a similar threat ―on account of‖ the 

officer‘s past service.

Title 18 U.S.C. § 844, regarding fire or explosives, 

states in part that ―Whoever, through the use of the 

mail ... or other instrument of interstate ... 

commerce, willfully makes any threat ... concerning 

an attempt to kill, injure, or intimidate any 

individual or to unlawfully damage or destroy any 

building....

Title 18 U.S.C. § 876(c), states in part that 

―Whoever knowingly ... deposits or causes to be 

delivered (through the use of the mail), any threat 

to injure the person of the addressee or of 

another... .

True threats have common characteristics. They express 

a present determination or intent to hurt someone, now or in 

the future. ―I will kill you‖ shows a present determination. 

Conditional threats, however, are not punishable when the 

condition negates the threat (e.g., ―I would kill you if I were 

younger.‖) On the other hand, conditions that are likely to 

become true may amount to true threats. For example, ―I will 

kill you when I get out of jail.‖ Finally, the speaker‘s words may 

amount to a true threat if he announces a condition he cannot 

lawfully make, e.g., ―If you say anything, I‘ll make sure you 

spend time in the hospital.‖

The crux of a true threat is this: would a reasonable 

person hearing the words believe the defendant was serious 

about carrying out the threat? Whether the defendant was 

serious, in fact, is not an element; however, an utterance in jest 

or conditioned on a variable that cannot occur (being younger) 
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is not a threat. Moreover, the defendant need not communicate 

the threat to the intended victim; communicating the threat to a 

third party is sufficient. And finally, the defendant does not 

have to spell out how he will hurt the victim. A reasonable 

person may believe that ―I will make sure you spend time in the 

hospital‖ is a true threat. The following might be true threats 

under 18 U.S.C. § 115 if made under circumstances that would 

lead a reasonable person to believe the speaker was serious:

The speaker tells a U.S. Park ranger during the 

execution of an arrest, ―I‘m going to kick your a--.‖ 

However, ―I would kick your ass if I were sober‖ is 

not a true threat.

The speaker sees a U.S. Park ranger at the mall and 

says, ―You‘re the stupid b---- that arrested me two 

years ago. I‘m going to kick your a--.‖

Defendant sees a U.S. Park ranger‘s husband at the 

mall and says, ―Your wife arrested me two years 

ago. I‘m going to kick your a--.‖

The speaker sees a U.S. Park ranger‘s husband at 

the mall and says, ―Your wife arrested me two years 

ago. Neither of you will live to see Christmas.‖

3. Advocating Imminent Lawless Action

Historically, people have not only criticized their country, 

but advocated that laws be ignored and the government 

overthrown. Government restrictions on speech that advocates 

lawlessness is tightly circumscribed when the advocacy occurs 

in public. Advocating lawlessness in public is punishable when 

two conditions are satisfied. First, the advocacy must be 

directed to inciting or producing imminent lawless action. 

Consequently, advocating lawlessness at some future time is 

protected. Secondly, the advocacy must be likely to incite or 

produce lawlessness. So even if the speaker advocates 

immediate lawlessness, the crowd must still be receptive to the 

idea. Brandenburg v. Ohio. Some examples follow:
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Advocating imminent lawlessness: During a public 

demonstration, a speaker yells at a crowd, ―If you‘re 

a Muslim, then you‘re responsible for 9/11.‖ At 

this, the non-Muslim crowd cheers in approval. 

The speaker continues, ―See that store over there‖ 

pointing to a grocery store. ―That‘s owned by 

Muslims. Let‘s give them a taste of their own 

medicine and bust out their windows.‖ At this the 

crowd cheers louder and even begins to pick up 

rocks as if they might throw them at the store 

windows.

Advocacy based on a contingency that does not 

incite imminent lawlessness: During a 

demonstration, a speaker yells, ―The war in Iraq 

violates international law. Unless U.S. troops are 

pulled out of Iraq, we are going to come back and 

give President Bush a taste of what war is like and 

torch government buildings.‖ The crowd cheers in 

agreement.

Advocacy that is not likely to incite lawlessness: 

During a demonstration about the war in Iraq, a 

demonstrator yells, ―There‘s no way you‘re going to 

make me go to Iraq. If they try to send me, the first 

guy I‘ll shoot will be George Bush.‖ The crowd 

laughs.

Advocating lawlessness is sometimes called political 

speech. Although advocating lawlessness in public speech is

generally protected; privately directing or soliciting that a crime 

be committed is not.

4. Creating a clear and present danger

Imagine someone telephoning security personnel at a 

federal building and saying, ―There‘s a bomb in the building.‖ 

Imagine a passenger on an airplane joking with a flight 

attendant and saying, ―I‘ve got a bomb.‖ Comments like those 

that place the public in fear of pending peril are punishable. 
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The bomb threat is punishable under 18 U.S.C. § 844, above. 

The joke (false information) about the bomb on the airplane is 

punishable under 18 U.S.C. § 32.

5. Obscenity

The Supreme Court defined obscenity this way: ―whether 

to the average person, applying contemporary community 

standards, the dominant theme of the material taken as a whole 

appeals to prurient interests.‖ ―Prurient‖ means material 

having a tendency to excite lustful thoughts, below normal or 

healthy sexual desires. Obscenity is grossly offensive to 

modesty, decency, or propriety. It shocks the moral sense, 

because of its vulgar, filthy, or disgusting nature, or its 

tendency to incite lustful thought. It must violate community 

standards. Child pornography violates community standards of 

decency, so long as it depicts actual children under the age of 

18 engaged in sexually explicit acts. Ashcroft v. Free Speech 

Coalition. Several federal statutes proscribe obscenity. Title 18 

U.S.C. § 2252A proscribes possession of child pornography that 

has been transported in interstate commerce. Title 18 U.S.C. § 

1460 prohibits possession with intent to sell or the sale of any 

obscene material on federal property.
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NOTES
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Chapter Four

Courtroom Evidence

I. INTRODUCTION...................................................................95

A. Forms of Evidence............................................................... 95

B. Admissibility ....................................................................... 96

C. Applicability of the Federal Rules of Evidence (FRE)............ 96

II. THE PROCEDURAL STAGES OF A CRIMINAL TRIAL.....................96

A. Suppression Hearings (Motions Hearings)........................... 96

B. Voir Dire ............................................................................. 97

C. Opening Statements by Counsel ......................................... 97

D. The Case in Chief................................................................ 97

E. The Defense Case................................................................ 97

F. The Rebuttal Case............................................................... 97

G. Closing Argument ............................................................... 98

H. The Charge to the Jury ....................................................... 98

I. Sentencing.......................................................................... 98

J. Post-Trial Proceedings......................................................... 98

III. RELEVANT EVIDENCE ..........................................................98

A. The Requirement for Evidence to be Relevant...................... 98

B. Other Crimes, Wrongs, and Acts of the Defendant .............. 99

IV. DIRECT AND CIRCUMSTANTIAL EVIDENCE .............................101

V. LAY (AND EXPERT) WITNESS TESTIMONY ..............................102

A. Handwriting...................................................................... 103

B. Voice................................................................................. 103

C. Emotional Condition ......................................................... 103

D. Not Requiring Scientific or Technical Knowledge ............... 103

VI. WITNESS CREDIBILITY AND IMPEACHMENT ...........................103

A. Impeachment.................................................................... 103

B. Factors that Affect a Witness‘ Credibility........................... 104

1. Bias ............................................................................. 104

2. Motive to Fabricate Testimony ..................................... 104

3. Inability to Observe or Accurately Remember............... 105

4. Contradiction............................................................... 105

5. Prior Inconsistent Statements...................................... 105

6. Specific Instances that Indicate Untruthfulness........... 105

7. Prior Convictions to Show Untruthfulness (FRE 609)... 106

VII. PRIVILEGES .....................................................................106

A. Holders of a Privilege......................................................... 107

B. Waiver of Privileges ........................................................... 107

C. Privileges and the Rules of Evidence ................................. 108
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D. The Federal Privileges ....................................................... 108

E. Non-Federally Recognized Privileges.................................. 108

F. The Attorney-Client Privilege ............................................. 109

G. The Husband-Wife Privileges............................................. 110

H. The Psychotherapist-Patient Privilege................................ 111

I. The Clergy-Communicant Privilege.................................... 111

J. The Government-Informant Privilege................................. 112

VIII. EVIDENTIARY FOUNDATIONS ...............................................113

A. Laying a Foundation ......................................................... 114

B. Marking/Tagging Evidence................................................ 114

C. Chain of Custody .............................................................. 114

D. Legal Admissibility and Preserving Trace Evidence 

Characteristics.................................................................. 115

E. Condition of the Evidence at the Time of Trial................... 115

IX. BUSINESS RECORDS AND PUBLIC DOCUMENTS .......................116

A. The Best Evidence Rule (FRE 1001; 1002) ........................ 116

1. An Original .................................................................. 117

2. Duplicates ................................................................... 117

B. Self-Authentication ........................................................... 117

1. Public Records and Documents ................................... 118

2. Business Records ........................................................ 118

C. Hearsay and Public Records and Business Records .......... 119

X. HEARSAY ........................................................................119

A. Hearsay Defined................................................................ 119

B. Hearsay Examples ............................................................ 119

C. Applicability of the Hearsay Rule....................................... 120

D. Reason for the Hearsay Rule ............................................. 120

E. What is a Statement?........................................................ 120

F. Truth of the Matter Asserted ............................................. 120

G. Non-Hearsay ..................................................................... 121

1. Statements of the Defendant........................................ 121

2. Other Statements......................................................... 121

XI. EXCEPTIONS TO THE HEARSAY RULE ...................................121

A. Excited Utterances............................................................ 121

B. Statements for Medical Diagnosis or Treatment ................ 122

XII. STATEMENTS, REPORTS AND COURTROOM TESTIMONY ...........122

XIII. AUTHENTICATING INFORMATION CONTAINED IN COMPUTERS ....123

A. Involving Computer Forensics Experts .............................. 123

B. Rules of Evidence Issues when Authenticating ―Digital (or 

Electronic) Evidence‖ ........................................................ 123

C. Admissibility of Digital Evidence ....................................... 124

D. The Best Evidence Rule Requirement for an ―Original‖ ...... 125

E. Hearsay Issues.................................................................. 125
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I. Introduction

Evidence is the backbone of every criminal prosecution. 

Unless evidence is properly collected, preserved, and presented, 

the evidence will not be admissible in court, and the jury cannot 

consider it no matter how important or powerful it may be. To 

ensure that evidence is collected and preserved in a way that it 

can be admitted, you must have a general appreciation of some 

fundamentals of the Federal Rules of Evidence.1

The jury decides what to do with the evidence that is 

admitted at trial and how much weight - consideration - to give 

it. The jury may consider the evidence as powerful proof or they 

might disregard it all together. Collecting evidence in a way 

that complies with the Federal Rules of Evidence makes the 

evidence more convincing to juries.

The law enforcement community uses the word ―evidence‖ 

in many ways. For purposes of this Chapter, evidence refers to 

anything that either side - the prosecution or the defense -

offers in court to prove or disprove something. 

A. Forms of Evidence

Evidence comes in several forms:

Testimonial. A witness takes the stand, is placed 

under oath, and answers questions.

Real. Real evidence is physical - it is something 

you can actually touch or see. Items that are 

found, collected, seized or otherwise obtained 

become exhibits and can be offered into 

evidence. Guns, drugs, or documents are 

common forms of real evidence. Real evidence will 

be given an exhibit number when offered into 

evidence (Prosecution Exhibit ______; Defense 

Exhibit_______).

 

1 All cited Federal Rules of Evidence can be found in the companion book, 

Legal Division Reference Book, in the segment entitled ―Selected Federal 

Rules of Evidence.‖
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Demonstrative. Demonstrative evidence consists 

of items that demonstrate or illustrate something to 

the jury such as models, charts, and graphic aids.

B. Admissibility

The judge decides the admissibility of the evidence. 

When evidence is offered, the other party may object. If the 

objection is overruled, the evidence is received and the jury may 

consider it in deciding the verdict. If the objection is sustained, 

the evidence is not admitted and the jury may not consider it. 

The judge applies the Federal Rules of Evidence (FRE) in 

deciding whether to admit evidence.

C. Applicability of the Federal Rules of Evidence 

The FRE apply only to trials, and with the exception of 

privileges, they do not apply at the initial appearance, detention 

and identity hearings, the preliminary hearing, arraignment, 

Grand Jury hearings, sentencing proceedings, and appeals. 

The FRE also do not apply to what information officers 

may consider when investigating a case. For example, officers 

may consider hearsay information when conducting an 

investigation or deciding whether there is reasonable suspicion 

or probable cause.

II. The Procedural Stages of a Criminal Trial

A. Suppression Hearings (Motion Hearings)

If there is evidence one side does not want the jury to 

hear or see, they will file a motion to suppress. Most often, it is 

the defense that files suppression motions and usually because 

they claim that evidence was unlawfully seized or a confession 

improperly obtained. Law enforcement officers frequently testify 

at suppression hearings. The jury is not present and the judge 

will decide whether the evidence will be received into evidence 

and go to the jury. 
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If the judge grants a motion to suppress, the jury will not 

know about the evidence. If the judge denies a motion to 

suppress, the evidence will go to the jury.

B. Voir Dire

During voir dire the lawyers question the potential jurors 

and the jury is selected.

C. Opening Statements by Counsel

At this stage lawyers tell the jury what they expect the 

evidence will show. The defense may reserve their opening 

statement until after conclusion of the prosecution‘s case. 

These statements by counsel are not evidence.

D. The Case-in-Chief

The prosecution‘s ―case-in-chief‖ is also known as the 

case on ―the merits.‖ The government presents its evidence by 

calling witnesses and offering exhibits. The defense may crossexamine any witness that is called and may challenge the 

admissibility of exhibits. If the witness is cross-examined, the 

prosecution may conduct a ―re-direct‖ examination. There can 

be further re-cross and re-direct. The prosecution always goes 

first because the burden is on the government to prove the 

defendant‘s guilt beyond reasonable doubt.

E. The Defense Case

The defense is NEVER required to present evidence 

because the burden is, and always remains on, the government 

to prove the defendant‘s guilt. Just as in the prosecution‘s 

case, defense witnesses can be cross-examined, their exhibits 

can be objected to, and there can be re-direct questioning of 

witnesses.

F. The Rebuttal Case

If the defense presents a case, the prosecution may offer 

rebuttal evidence. In the rebuttal case, the prosecution may 
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only present evidence that rebuts or challenges the evidence 

that the defense presented. If the prosecution presents a 

rebuttal case, the defense may then rebut what the prosecution 

just presented. The rebuttal cases continue until all rebuttal 

evidence has been presented.

G. Closing Argument

During closing arguments, the lawyers tell the jury what 

they think the evidence showed. The lawyers may argue only 

that which was admitted into evidence. Argument by counsel is 

not evidence.

H. The Charge to the Jury

During ―the charge‖ (instructions) to the jury, the judge 

will tell the jury what the law is so the jury may apply the law to 

the facts in reaching the verdict. After deliberation the jury will 

announce the verdict.

I. Sentencing

If the defendant is found guilty of any offense the judge 

will conduct a sentencing hearing. This does not involve the 

jury unless the case is a capital (death penalty) one in which 

the jury will be asked to make certain findings.

J. Post-Trial Proceedings

There are many different appeal procedures that the 

defendant may attempt to use.

III. Relevant Evidence

A. The Requirement for Evidence to be Relevant

Evidence must be relevant to be admissible. Evidence is 

relevant if it has any tendency to prove or disprove a fact that is 

in issue in the trial.
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Evidence which tends to: (a) prove (or disprove) an 

element of the crime charged, (b) prove or rebut a defense, or (c) 

concerns the credibility (believability) of a witness is always 

relevant. Evidence does not always have to be the smoking 

gun. If evidence has any tendency to prove a part of the case -

directly or indirectly - the evidence is relevant. You must find 

and collect all evidence because what might not appear relevant 

at first may become relevant later.

B. Other Crimes, Wrongs, and Acts of the Defendant 

(Uncharged Misconduct)

The government is entitled to prove the elements of the 

offenses with which the defendant is charged. Evidence of 

crimes or other acts that are not charged or relevant to prove a 

charged offense are inadmissible.

Specifically, the prosecution cannot offer evidence of the 

defendant‘s uncharged misconduct to prove he ―did it before, he 

did it again‖ or that the defendant is a bad person. This is 

―propensity evidence‖ and is not admissible. The prosecution, 

however, may offer other acts of the defendant - to include bad 

or criminal acts - if those acts help prove the charged crime, 

impeach a witness, or contradict a witness‘ testimony.

Examples:

Motive. Does a prior act tend to prove the 

defendant‘s motive to commit the charged crime? A 

prior altercation between the defendant and the 

victim is admissible to prove motive for a later 

assault. In a bank fraud case, evidence that the 

defendant had outstanding debts is admissible to 

prove the motive for using a false name on a bank 

loan.

Intent. Does a prior act tend to prove whether the 

defendant had a specific intent to commit the 

charged offense? One case held that a prior 

cocaine conviction to distribute drugs was 
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admissible to prove intent in a charge for 

conspiracy to distribute drugs.

Knowledge. Do the defendant‘s acts tend to prove 

the defendant knew a certain fact? Evidence of a 

large number of firearms found in the defendant‘s 

house would be admissible to prove the defendant 

knew he had firearms in his home, even if he was 

only charged with possessing one firearm in 

connection with drug trafficking.

Plan or preparation. Do the defendant‘s acts tend 

to prove how the defendant planned or prepared for 

the charged crime? In a trial for carnal knowledge 

(sex with a minor), evidence that the defendant gave 

marijuana to the victim before having sex is 

admissible to show the defendant‘s plan to lower 

the victim‘s resistance.

Opportunity to commit the crime. The 

prosecution was permitted to show a photo of the 

defendant holding a "large gun," taken before the 

charged crimes, to show defendant had access to 

guns. 

Modus Operandi. If the defendant has a particular 

way of committing an offense, evidence of prior 

offenses may be admitted to prove the defendant 

committed the offense being tried.

Identity of the perpetrator. Evidence that on a 

prior occasion the defendant, under ―signature-like‖ 

circumstances, committed an offense may be 

admissible to prove that the defendant was the 

person who committed the charged offense.

Impeachment by contradiction. If the defendant 

makes a factual claim while testifying, that fact can 

be contradicted. The contradiction might include 
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evidence the defendant engaged in prior crimes or 

misconduct if a defendant denies such past 

wrongdoing. Another example would be if the 

defendant claims she was never at a particular 

location, the prosecution could rebut that 

testimony with a prior conviction for an offense that 

occurred at that very location.

Predisposition to defeat entrapment. If a 

defendant raises an entrapment defense, prior 

criminal acts are admissible to prove that the 

defendant was predisposed to commit the crime.

IV. Direct and Circumstantial Evidence

Direct evidence tends to prove a fact directly and without 

the need to draw an inference or a conclusion. Direct evidence 

most often comes from what a witness sees, hears, smells, 

tastes, or touches. In contrast, circumstantial evidence (also 

known as ―indirect evidence‖) tends to prove a fact indirectly 

through an inference, deduction, or a conclusion. For example, 

testimony that ―The street was wet when I got up in the 

morning‖ is circumstantial evidence it rained during the 

evening.

Sometimes you hear, ―That is just circumstantial 

evidence‖ or ―The case was entirely circumstantial.‖ 

Circumstantial evidence can be very powerful, and more reliable 

and convincing, than eyewitness testimony. Most physical 

evidence is circumstantial because it proves something 

indirectly. For example, a ballistics test that proves a certain 

gun fired a certain bullet is circumstantial evidence that the 

defendant (who was found in possession of the gun) killed the 

victim. There is no rule that one type of evidence is more 

powerful than another. The weight of different types of evidence 

always depends on the case and the other evidence.
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V. Lay (And Expert) Witness Testimony

(Not all programs are responsible for the material in this 

section. Check your course syllabus.)

Generally, a witness may only testify from personal 

knowledge. Witnesses may offer their opinion only if they are 

an expert or if the matter is the proper subject of a ―lay witness 

opinion.‖

Criminal trials often involve expert witness testimony due 

to advances in forensic evidence such as fingerprint 

identification, DNA, ballistics, toxicology, blood splatter (or 

spatter), fiber comparison, tool and die marks, questioned 

documents and similar disciplines. To testify about a scientific 

or technical matter or other area of specialized knowledge, the 

witness must be qualified by their knowledge, skill, expertise, 

training, or education. (FRE 702).

Most law enforcement officers (LEOs) are not qualified to 

testify as an expert in forensic areas if they have only 

generalized police training. For example, while most LEOs have 

had training in collecting latent prints and fingerprint 

identification basics, they have insufficient qualifications to 

testify in court about a fingerprint comparison. LEOs who have 

had specialized training, education, knowledge or experience 

can be qualified as experts.

A person who is not an expert witness is called a lay 

witness. A lay witness may give an opinion only when: (a) the 

opinion is rationally based on the witness‘ perception and 

personal knowledge, (b) the opinion is helpful to a clear 

understanding of the witness‘ testimony or the determination of 

a fact in issue, and (c) the opinion is not one that is based on 

scientific, technical, or other specialized knowledge. In sum, a 

lay witness may offer an opinion about matters that are within 

the perception of an ordinary person that results, as one court 

said, ―from a process of reasoning familiar in everyday life.‖ 

Some examples of a proper lay witness opinion are:
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A. Handwriting

Identification of handwriting if the witness has sufficient 

familiarity with that handwriting. A secretary or co-worker, for 

example, might be sufficiently familiar with someone‘s 

handwriting to say, ―That‘s it.‖

B. Voice

Identification of a person‘s voice (whether hearing it first 

hand or from a recording) provided the witness has heard the 

voice before under circumstances where they knew who the 

speaker was.

C. Emotional Condition

―She looked nervous.‖ ―He was in pain.‖

D. Not Requiring Scientific or Technical Knowledge

A witness may testify ―it looked like blood‖ because most 

people know what blood looks like. 

VI. Witness Credibility and Impeachment

Witnesses are called ―credible‖ if they are believable. Each 

side in a trial wants their witnesses to be believed, and the jury 

(or the judge in a bench trial without a jury) decides whether a 

witness is credible and can elect to believe all, nothing, or part 

of what a witness says.

A. Impeachment

Impeachment is an attack on the credibility of a witness. 

Any witness who testifies can be impeached. The impeachment 

evidence can be offered during cross-examination or can be 

offered through the testimony of another witness. 
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Examples:

Impeachment through cross-examination. ―Isn‘t it 

true that you must wear glasses to see distances?‖

Impeachment by calling another witness. ―Mr. 

Smith, who testified earlier, wears thick glasses, 

doesn‘t he?‖

If a witness is impeached, the jury may find the witness‘ 

testimony less believable. The side that called the witness will 

then be allowed to ―rehabilitate‖ (to restore) the witness‘ 

credibility. For example, if a witness was impeached with 

questions about wearing glasses, the witness could be 

rehabilitated with evidence that the prescription was current 

and the witness was wearing clean glasses in a correct manner.

While impeachment or rehabilitation occurs in the 

courtroom, they are based upon facts, and it is often your duty 

to develop these facts. You must collect evidence that can be 

used: (1) by the AUSA to impeach defense witnesses; (2) by the 

defense to impeach government witnesses (so the AUSA can 

prepare for it); and (3) by the AUSA to rehabilitate prosecution 

witnesses who are impeached at trial.

B. Factors that Affect a Witness‘ Credibility

1. Bias

A biased witness may tend to color or slant testimony. 

Bias can arise when witnesses are related by blood or marriage 

to defendants or victims, or when they are members of similar 

groups (gangs, places of worship, college fraternities). Bias may 

also exist in other relationships such as fellow LEOs, former 

prison cellmates, or partners-in-crime.

2. Motive to Fabricate Testimony

A witness with a stake in the outcome of the trial or a 

vendetta against another witness or the other side may have a 
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motive to lie (motive and bias are similar). Motive is illustrated 

by witnesses who are financially or emotionally dependent on 

the defendant or witnesses who have a reason to help (or hurt) 

the defendant. Co-defendants and co-conspirators are easily 

attacked if they try to shift the blame toward the defendant.

3. Inability to Observe or Accurately Remember

A witness‘ inability to see or hear what happened or an 

impediment to the ability to remember or recall may be used to 

impeach. Examples include witnesses who have problems with 

vision or hearing, who were not in a positions to see or hear 

what occurred, who were under the influence of alcohol or 

drugs at the time of the event, or who have a mental 

impairment.

4. Contradiction

A common form of impeachment is to challenge the 

testimony of a witness to show what said is not true. A witness 

who says the car was green can be impeached with evidence 

that the car was in fact red.

5. Prior Inconsistent Statements

Perhaps the best possible impeachment is to contradict 

witnesses with their own words from prior testimony, reports, 

notes, or statements to others.

6. Specific Instances of Conduct that Indicate a 

Witness is Untruthful

A witness may be cross-examined about his past conduct 

if it would indicate he is untruthful. The conduct does not have 

to relate to the case being tried. Examples would include lying 

in an investigation, forging checks, or engaging in acts of deceit. 

LEOs who have engaged in such conduct, on or off duty, might 

have that conduct exposed in court.
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7. Prior Convictions to Show Untruthfulness (FRE 

609)

A prior conviction (NOT an arrest) can be used to impeach 

any witness (including the defendant) who testifies. The idea 

behind allowing prior convictions in as evidence is that one who 

has been convicted may be the type of person who is 

untruthful. A prior conviction is NOT admissible to show the 

defendant ―did it before so he did it again‖ or that he is a bad 

person, and therefore committed the charged crime. (This, 

remember, is propensity evidence which is inadmissible.) 

Convictions that are less than 10 years old that are either felony 

convictions for any offense, or misdemeanor convictions for 

perjury or false statement, may be used to impeach a witness 

who has testified.2 The 10 years is measured from the date of 

conviction or the date of release from confinement, whichever is 

later. If the conviction is under appeal it may still be used. 

Convictions that have been reversed or the subject of a pardon 

may not be used. Generally, a juvenile adjudication may not be

used but the AUSA should be informed about any juvenile 

adjudications. 

VII. Privileges

(Not all programs are responsible for the material in this 

section. Check your course syllabus.)

Privileges are protections given to information shared 

between people in specific relationships. When a privilege 

exists, it means that a person cannot be required to provide 

certain information and can prevent others from doing so. 

Ordinarily a witness can be required to testify at a Grand Jury 

or a trial under threat of being held in contempt. However, if the 

information is privileged, a person cannot be compelled to give 

the information no matter how relevant and important it may 

be. The courts developed the privileges used in federal criminal 

trials.

 

2 Convictions more than 10 years old are admissible if the judge determines, 

―in the interests of justice, that the probative value of the conviction 

supported by specific facts and circumstances substantially outweighs its 

prejudicial effect.‖
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Privileges reflect societal concerns that certain 

information - though relevant and important - will not be 

revealed in order to promote some other societal good. For 

example, in order to ensure that criminal defendants will 

candidly communicate with their defense attorneys, the law 

makes their communications privileged. Society has decided 

that it is better to have clients talk to their lawyers than to 

reveal attorney-client discussions.

A. Holders of a Privilege

The holder of a privilege is the person who can refuse to 

divulge the privileged information. In some cases, certain 

persons can exercise the privilege on behalf of the holder such 

as when attorneys refuse to reveal what clients tell them.

B. Waiver of Privileges

The existence of a privilege means a person cannot be

made (or compelled) to provide information, not that the 

information cannot be used. For example, if a person holds a 

valid privilege for which there is no exception, and the person is 

subpoenaed to testify at the Grand Jury or another proceedings, 

that person can lawfully refuse to divulge the information 

without being held in contempt of court. On the other hand, the 

person can waive the privilege and testify. In addition, if the 

same information is available through a non-privileged source, 

the information can be admitted at trial.

Unlike a waiver of Miranda rights, there is no special 

method to have a person waive a privilege. Even if you know 

that a person holds a privilege, you may still attempt to 

question the person. If the person answers the question, the 

privilege is waived. You should presume that the person may 

attempt to invoke the privilege at a later proceeding. To guard 

against this possibility, you should obtain independent 

information that proves or corroborates what the holder of the 

privilege told you.
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C. Privileges and the Rules of Evidence

The general rule is that FRE apply only during trials, and 

not to other proceedings such as the initial appearance, the 

preliminary hearing, arraignment, Grand Jury hearings, 

sentencing proceedings, detention and identity hearings, and 

appeals. An exception is that privileges apply to all 

proceedings.

D. The Federal Privileges

Not all federal privileges are discussed in this text but 

only those that you will commonly encounter. Federal 

privileges include:

The 5th Amendment privilege against selfincrimination. This is the subject of the SelfIncrimination chapter and will not be further 

discussed here.

The attorney-client privilege.

The husband-wife privileges.

The psychotherapist-patient privilege.

The government-informant privilege.

The clergy-communicant privilege.

E. Non-Federally Recognized Privileges

Some state courts may recognize other privileges that are 

not recognized in federal criminal trials such as the (1) doctorpatient (unless the doctor was a psychotherapist); (2) 

accountant-client; (3) journalist-source3; and (4) parent-child.

 

3 Some federal courts recognize there may be a qualified (limited) journalistsource privilege.
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F. The Attorney-Client Privilege

The privilege covers communications - written or oral -

between attorney and client made during professional 

consultation. It includes communications before payment for 

services, and the privilege remains even if the attorney-client 

relationship is severed such as when a client fires the lawyer. 

The privilege exists to encourage clients charged or under 

investigation with a crime to speak candidly with their attorney 

in order to obtain an adequate defense.

Elements of the privilege: (a) the attorney must be acting 

as an attorney in a professional capacity, (b) the communication 

must have been intended to be confidential, and (c) the 

communication must have been confidential in fact.

The client holds the privilege. The attorney may exercise 

the privilege for the client by refusing to divulge what the client 

told the attorney.

The privilege does not apply when the attorney is serving 

in some function other than a legal adviser such as a mere 

conduit for funds, real estate transactions, stock sales, or other

ordinary business transactions. Such dealings are not strictly 

attorney functions.

While the privilege applies to communications about past 

crimes, it does not apply to the commission of future crimes 

such as when the attorney and client are committing crimes 

together, or the attorney is advising the client how to commit a 

crime. Communications intended to facilitate or conceal 

criminal or fraudulent activity are also unprotected. 

Attorney-client communications when a third person is 

present or in a public place where people can overhear will 

usually destroy the confidentiality of the communication and, 

therefore, the privilege. The law recognizes, however, that if the 

presence of a third person is essential for the attorney to 

prepare a defense in a criminal case, then these third persons 
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HUSBAND-WIFE 

PRIVILEGES

Testimonial Privilege

Marital Communication 

Privilege

fall under the ―umbrella‖ of the privilege. Examples would be a 

legal secretary, paralegal, defense-employed investigator, or 

interpreter working for the attorney.

G. The Husband-Wife Privileges

There are two husbandwife privileges. The testimonial 

privilege provides that people 

have the right to refuse to 

testify against their spouses. 

This privilege extends to what 

the spouse saw, was told, or 

knows, including information discovered before the marriage. 

The testifying spouse holds this privilege, and the privilege is 

waived if the spouse elects to testify. The privilege ends with 

divorce.

The marital communication privilege, on the other hand, 

protects private communications between the spouses made 

during the marriage. The communication does not have to be of 

an intimate nature or even concern the marriage. A statement 

in private by a husband to his wife, ―I robbed a bank‖ is 

protected by this privilege. If the communication is made under 

conditions that are not private - such as in the presence of their 

children or friends - there is no private marital communication. 

This privilege protects only those private communications 

between spouses made during the marriage, and this privilege 

extends beyond divorce. The privilege is held by the spouse who 

made the communication. More and more courts are holding 

that this privilege belongs to both spouses.

The marital privileges exist to encourage husbands and 

wives to communicate with each and to preserve marriages. 

There are several exceptions to the privileges such as when the 

marriage is determined to be a sham, when a spouse or the 

child of either spouse is the victim of the crime charged, and in 

many circuits, when both spouses participated in the crime.
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H. The Psychotherapist-Patient Privilege

Confidential communications between licensed 

psychiatrists, psychotherapists or social workers and their 

patients in the course of psychotherapy diagnosis or treatment 

are privileged. Though there is not a general doctor-patient 

privilege, if the doctor is a psychiatrist or other mental health 

professional, the psychotherapist-patent privilege may exist. 

This privilege exists because effective psychotherapy depends 

upon an atmosphere of confidence and trust.

A party asserting the psychotherapist-patient privilege 

must show that the communications were made: (a) 

confidentially, (b) between a licensed psychotherapist and the 

patient, and (c) in the course of diagnosis or treatment. The 

patient holds the privilege. The person providing the 

psychotherapy may exercise the privilege on behalf of the 

patient.

The privilege does not apply if the communications were 

not confidential. Statements made during the course of a group 

therapy session or statements made by patients to others about 

what they said to the psychotherapist would not be confidential. 

Since this is a relatively new federal privilege, the Supreme 

Court may later recognize other exceptions that some states 

already observe. For example, the privilege might not be 

recognized if the patient communicates serious threats to 

himself or others, or the patient and therapist were engaged in 

a criminal enterprise.

I. The Clergy-Communicant Privilege

The Supreme Court has not specifically adopted the 

clergy-communicant privilege though most circuits have. 

A party asserting the clergy-communicant privilege must 

show that the communications were made: (a) to a member of 

the clergy, (b) in the clergy‘s spiritual and professional capacity, 

and (c) with a reasonable expectation of confidentiality. ―Clergy‖ 

includes minister, priest, pastor, rabbi, or other similar leader 
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of a religious organization, or an individual reasonably believed 

to be so by the person consulting him. The presence of others 

necessary to communicate the information does not defeat the 

privilege. The privilege exists to encourage people to 

communicate with members of the clergy on spiritual matters.

The communicant holds the privilege. The clergy may 

exercise the privilege for the client by refusing to divulge what 

the communicant said. If the communication was not on a 

spiritual matter - such as a joint criminal enterprise - the 

privilege will not apply.

J. The Government-Informant Privilege

In the other privileges discussed so far, the privileged 

information is what the person holding the privilege said. The 

government-informant privilege is different in two respects: (a) 

what is privileged is not the communication, but the identity of 

the informant and information that would reveal the informant‘s 

identity and (b) the holder of the privilege is not the person who 

made the communication, but to whom the communication was 

made (the government). The privilege exists to encourage 

people to report crime and cooperate with the police.

Not everyone who provides information to the government 

is an informant for the purposes of this privilege. For example, 

victims of crimes and LEOs provide information that does not 

fall within the privilege. All agencies have special rules and 

procedures to follow that bring informants under the umbrella 

of this privilege, and you must be sure that confidentiality is not 

promised contrary to agency policy.

The government holds the privilege. The AUSA will 

exercise the privilege on behalf of the government. You may 

NOT reveal the identity of the informant unless directed to do so 

by a judge or the AUSA.

A judge may order that the identity of a confidential 

informant be revealed. If the judge decides that the informant‘s 
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identity should be revealed, the AUSA must either do so or 

dismiss the case. The judge will not order the informant‘s 

identity to be revealed unless the informant‘s identity is relevant 

and helpful to the defense of an accused, and is essential to a 

fair determination of the case. The proper balance depends on 

the particular circumstances of each case taking into 

consideration the crime charged, the possible defenses, the 

possible significance of the informant‘s testimony, and other 

relevant factors.

If the informant is just a tipster or the source of 

probable cause, the informant‘s identity will not 

usually be revealed.

If the informant merely introduces the defendant to 

an undercover agent, this will not usually require 

the informant‘s identity to be revealed since what 

transpires between the undercover agent and the 

defendant is what is relevant.

If the informant witnessed activities that are part of 

either the government‘s or the defense‘s case, the 

judge will have to decide whether revealing the 

informant‘s identity is relevant and helpful to the 

defense and necessary to a fair trial. Here the 

chance that the informant‘s identity will be revealed 

becomes more likely.

If the informant is a co-defendant, conspirator, 

confederate, or a party to a charged offense, it is 

likely that the informant‘s identity will be revealed.

VIII. Evidentiary Foundations

Evidence must be authenticated to be admissible in 

court. Authentication shows that there are facts to prove that 

the item is what the person offering the evidence claims it to be. 

The process of authenticating evidence in court is called ―laying 

a foundation.‖ The AUSA is responsible for laying a foundation 

for evidence using facts collected by you.
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Even if the judge admits evidence, it does not mean the 

jury has to place any value on it. For example, though a judge 

may admit a gun into evidence, the jury does not have to believe 

that the gun was the one that was found at the scene or used in 

a murder.

A. Laying a Foundation

The attorney offering an item into evidence is required to 

lay a foundation for it. A proper foundation consists of evidence 

- usually in the form of testimony - that the item is what the 

party offering it claims it to be. In other words, the lawyer 

cannot simply claim, ―This is the gun that was found at the 

scene,‖ or ―The defendant prepared this fraudulent document.‖ 

A foundation is usually laid through the testimony of a witness 

who can say from personal knowledge that the exhibit being 

offered in court is the one they saw, seized, or collected.

B. Marking/Tagging Evidence

The evidence tag documents where and when the 

evidence was found and who found it. Proper marking, tagging 

and bagging will ensure you can identify that evidence as the 

same as that offered in court. The evidence should be marked, 

tagged, or bagged in such a way that you will recognize it in 

court.

C. Chain of Custody

An evidence tag documents where and when the evidence 

was found and who found it. A properly prepared chain of 

custody documents where the evidence has been and who has 

handled it from the time it was discovered until the time it is 

offered in court. It also documents any alterations to the 

evidence. The first entry on the chain of custody should be the 

person who found the evidence. A chain of custody does not 

eliminate the need to call a witness to lay a foundation and does 

not substitute for having the item in court. It can, however, 

reduce the number of witnesses required, better ensure a 

foundation, and protect the foundation from attack.
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D. Legal Admissibility and Preserving Trace Evidence 

Characteristics

Evidence collectors have two challenges: (1) ensuring that 

the evidence can be admitted in court; and (2) preserving the 

item‘s characteristics and associated trace evidence such as 

fingerprints, hair, and fiber evidence. Laying a foundation for 

the admissibility of evidence does not satisfy evidence-handling 

techniques designed to preserve trace evidence. Handling 

evidence in a way that preserves trace evidence may not always 

satisfy legal admissibility rules. You must collect and preserve 

evidence to ensure that both a foundation can be laid in court 

and trace evidence is preserved.

E. Condition of the Evidence at the Time of Trial

There is no established legal standard that requires 

evidence to be in a certain condition in court when compared to 

how it appeared when it was collected. Usually it is sufficient 

that the evidence is in the same or substantially the same 

condition as when collected, and if there have been alterations, 

that the alterations can be explained and are documented. For 

example, if 20 grams of cocaine are seized and the laboratory 

consumes .05 grams in laboratory analysis, there will only be 

19.95 grams of cocaine at the time of trial. This is not a problem 

because the chain of custody will document that the cocaine 

was sent to the laboratory, and the laboratory report will 

document that .05 grams of cocaine was consumed in analysis. 

Mishandling evidence or alterations that cannot be documented 

may mean being unable to lay a proper foundation. The 

evidence may then be inadmissible. There is no limit to the 

ways an evidentiary foundation can be challenged, but here are 

some examples:

The foundation witness cannot identify the exhibit 

at trial.

Unmarked, mis-marked or incomplete tags, bags, 

or chain of custody documents.
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Improperly recorded transfers of evidence on chain 

of custody documents (―broken‖ chain of custody).

Failure to wear gloves or other protective garb and 

obliterating trace evidence or contaminating the 

scene (use proper trace evidence handling 

techniques; bring in a specially trained evidence 

team when necessary).

Improper storage of evidence such as unrefrigerated biological materials or computer disks 

and magnetic tapes stored near excessive heat or a 

magnetic source (consult evidence handling 

experts).

Reuse of evidence tape, swabs, bags, or seals (these 

items are cheap; discard contaminated or used 

supplies).

Documents or evidence marked in such a way that 

the evidence is ―altered‖ (Did the LEO obliterate a 

fingerprint when the item was marked? Did page

numbering of documents alter the meaning or 

authenticity of the document?).

Work done on originals of computer disks, photos, 

documents, tape recordings or the like (make copies 

and work with copies).

IX. Foundations for Business Records and Public 

Documents

(Not all programs are responsible for the material in this 

section. Check your course syllabus.)

A. The Best Evidence Rule (FRE 1001; 1002)

This is best remembered as the ―Original Document or 

Writing Rule.‖ Before copy machines, carbon paper, and other 

duplicating processes, copies of documents were made by hand. 
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This process lent itself to errors in copying, and what was 

supposed to be an exact copy was not always so. Though many 

of the rule‘s concerns have been resolved by technology, the 

rule must be followed.

1. An “Original”

The original of a document is the actual document itself or 

counterparts intended to be the equivalent of the original such 

as identical documents executed by both parties at the same 

time. An original of a photograph is any print made from the 

negative. As to data stored on a computer or similar device, an 

original is any printout or other output readable by sight, 

shown to reflect the data accurately.

2. “Duplicates”

Duplicates include carbon copies, photocopies, or copies 

made from other techniques that accurately reproduce the 

original. A duplicate is admissible to the same extent as the 

original unless a genuine question is raised as to the 

authenticity of the original, or it would be unfair to use a 

duplicate instead of the original such as when a duplicate is of

poor quality or otherwise not legible. You must always, however, 

endeavor to find and safeguard originals.

The Best Evidence Rule states that to prove the contents 

of a writing, the original writing itself must be admitted into 

evidence; witnesses are not permitted to testify what a 

document says over objection by counsel. If the document or 

writing is available, it must be offered into evidence. There are 

exceptions such as when all originals have been lost or are 

unobtainable, or the other side has the original and will not 

produce it. 

B. Self-Authentication

A foundation is required to introduce a business record or 

public record. Ordinarily the foundation is laid by the 
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custodian of the record who can state how the record was 

created and maintained. Special rules, however, allow certain 

documents and records to be ―self-authenticating.‖ Selfauthenticating records and reports do not require a witness to 

testify and lay a foundation.

1. Public Records and Documents

The FRE permit documents that are public records to be 

self-authenticating if they are accompanied by a seal or certified 

as correct by the custodian. Federal agencies have established 

procedures and the necessary forms to provide public 

documents and records under seal or to certify them. The 

custodian does not have to lay a foundation for the document if 

the document or record is certified or under seal. You do not 

have to personally obtain these records by hand.

2. Business Records

The FRE permit business records to be selfauthenticating similar to public documents and reports. To 

make business records self-authenticating, and avoid calling 

the custodian to testify, the custodian must certify that:

The record was made at or near the time to which 

the record pertains by a person with knowledge of 

the matter,

The record was kept in the ordinary course of 

business,

and

The business made such a record as a regular 

practice (it was not specially generated just for the 

trial).
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C. Hearsay and Public Records and Documents and 

Business Records

Offering the contents of public records and documents 

and business records for the truth of their contents can be 

hearsay, but there is a specific hearsay exception for them. If 

there is a seal or certificate that complies with the selfauthentication rules, then not only will the business records or 

the public documents or records be self-authenticating, the 

contents will be admissible to prove the truth of the contents as 

an exception to the hearsay rule. This exception to the hearsay 

rule does not apply to matters observed by law enforcement. 

Even self-authenticated police reports are still subject to the 

hearsay rule.

X. Hearsay

(Not all programs are responsible for the material in this 

section. Check your course syllabus.)

A. Hearsay Defined

Hearsay occurs when: (a) a statement is made out of 

court, (b) the out of court statement is offered in court (trial), 

and (3) the out of court statement is offered for the truth of the 

matter asserted in the statement.

B. Hearsay Examples

In each case, the witness wants to offer the quoted 

statement in court.

(1) ―Susan said Bob stole her purse.‖ (To prove that Bob is a 

thief).

(2) ―John said he saw the green car that night.‖ (To prove there 

was a green car at the scene).
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C. Applicability of the Hearsay Rule

The hearsay rule applies only to trials. You can and often 

do rely on hearsay to develop probable cause, develop 

reasonable suspicion, guide your decisions, and develop leads. 

Hearsay may also be used in criminal complaints and search 

warrant affidavits. 

D. Reason for the Hearsay Rule

Hearsay is inadmissible at trial because it is not possible 

to confront and cross-examine the person who made the out-ofcourt statement, and the jury is unable to assess that person‘s 

demeanor and credibility. Hearsay is just not considered 

sufficiently trustworthy to let the jury consider it.

E. What is a Statement?

A ―statement‖ can be verbal, written (such as a written 

statement of a person) or an act intended to communicate 

information (nodding the head, pointing, gesturing). 

Memoranda, writings, statements, and reports – even under 

oath - are ―statements‖ within the meaning of hearsay.

F. ―Truth of the Matter Asserted‖

The third component of the hearsay rule is that the outof-court statement is being offered for the truth of the matter 

asserted in the statement being offered. If the jury is asked to 

believe the statement is true, the statement is hearsay. If the 

statement is being offered for a legitimate reason other than to 

prove that the statement is true, then the statement is not 

hearsay. For example, if the statement offered is ―Bill told me 

that Joe shot him‖ to prove Joe shot Bill, the statement is 

hearsay. If the statement is offered to show why an officer was 

looking for Joe, the statement is not hearsay because it is not 

offered to prove Joe shot Bill.
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G. Non-Hearsay

1. Statements of the Defendant

Because the prosecution cannot call the defendant to the 

stand to testify, statements made by the defendant and offered 

by the prosecution are specifically excluded from the definition 

of hearsay. It really does not matter whether the statement is 

classified as an admission, confession or just information.

2. Other Statements

Statements of the defendant‘s co-conspirators made 

during and in furtherance of the conspiracy are excluded from 

the definition of hearsay. Also, earlier statements made by trial 

witnesses can sometimes be admitted to attack or support their 

trial testimony. 

XI. Exceptions to the Hearsay Rule

(Not all programs are responsible for the material in this 

section. Check your course syllabus.)

If an exception to the hearsay rule applies, the statement 

is admissible. There are many hearsay exceptions, and this text 

will discuss only two of them. When taking a statement that 

might be hearsay, you must document the facts and 

circumstances under which the statement was made. This may 

later aid the AUSA in getting the statement admitted at trial 

under a hearsay exception.

A. ―Excited Utterances‖

The law recognizes that a ―non-testimonial‖ statement 

made under emotional stress is unlikely to be fabricated. The 

elements of the exception are: (a) the person making the 

statement experienced a startling event, (b) the statement was 

made while the person was under the stress or excitement 

(influence) caused by that event, and (c) the statement was 

about the startling event. For example, while yelling, holding 

their hand over a gunshot wound, and in a high emotional 

state, a victim blurts out, ―Joe shot me!‖ This statement would 

meet the exception for excited utterance.
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B. Statements for Purposes of Medical Diagnosis or 

Treatment

The law recognizes that when a person is speaking to 

health care providers about their illness or injury, they are 

unlikely to fabricate those facts. The elements of this exception 

are: (a) a statement is made for the purposes of medical 

diagnosis or treatment, (b) the statement concerns medical 

history, past or present symptoms, pain, sensations, or the 

cause of the medical problem, and (c) the statement is pertinent 

to diagnosis or treatment. The person who receives the 

statement does not have to be a physician. If the person 

making the statement believes that the person they are 

speaking to is someone who is going to help them medically, the 

statement can qualify under this exception. Such statements 

can be made to nurses, emergency medical technicians, or to 

those working in the medical field who are treating the person. 

XII. Statements, Reports and Courtroom Testimony

Except for some expert witnesses and other limited 

circumstances, witnesses cannot testify from their reports or 

notes. You should check with the AUSA about whether to bring 

reports or notes to trial.

Your reports, and notes, as well as written statements 

and notes of other witnesses, can be used to impeach a witness‘ 

in-court testimony. For example, if a witness testifies that the 

license plate of a certain car was ABC but the report or the onscene notes indicate otherwise, the defense can use the 

contradiction to impeach the witness.

Memory can be ―refreshed‖ if a witness forgets a fact 

while testifying. The rule is that ―anything can be used to 

refresh a witness‘ memory.‖ Sketches, photos, physical objects, 

reports, notes, and even documents prepared by other LEOs or 

non-LEOs can be used. Documents or statements used to 

refresh a witness‘ memory do not have to be made under oath. 

When a witness‘ memory is refreshed, the witness can then 
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testify from memory. The report or item that was used to 

refresh memory is neither read nor given to the jury.

Notes, reports, statements or other writings that are used 

to refresh a witness‘ testimony are available to the other side. 

These items can be used to cross-examine the witness and for 

other purposes.

Non-LEO witnesses may testify at trial, and they too may 

need their memories refreshed. If during an investigation you 

interview a witness and the witness needs to refresh their 

memory with an item, you should obtain the item so it will be 

available at trial to refresh the witness‘ memory if that becomes 

necessary. For example, if during an interview a witness must 

refer to a phone bill to remember when they spoke to someone, 

the officer should obtain a copy of the phone bill so it will be 

available in court should the AUSA need to refresh the witness‘ 

memory.

XIII. Authenticating Information Contained in Computers

(Not all programs are responsible for the material in this 

section. Check your course syllabus.)

A. Involving Computer Forensics Experts

Computer forensics experts should participate in all 

search warrant phases - determining whether probable cause 

exists to search computers, drafting the search warrant, and 

executing the search. Not having a computer expert can 

jeopardize the admissibility of the evidence seized. Title 18 

U.S.C. § 3105 provides that no person, except in the aid of the 

officer requiring it, may be present and acting in the execution 

of a search warrant. If a computer forensics expert is needed, 

make sure the warrant indicates one is needed to aid in the 

search. 

B. Rules of Evidence Issues when Authenticating

―Digital (or Electronic) Evidence‖

Digital evidence is nothing but an electronic series of 0s 
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and 1s that is interpreted by a computer program. Below are 

some of the special, significant issues in having digital evidence 

admitted into court.

Were the records altered, manipulated, or damaged 

after they were created?

Who was the author of the record?

Was the program that converted the digital evidence 

to words or graphics reliable?

Proving authorship is usually solved by collecting 

circumstantial and other evidence during the search such as 

where the storage device (drive, disk, or other medium) was 

found; who had access to the data; trace evidence (DNA, 

fingerprints); passwords and screen names and who had access 

to them; names on computer folders containing the data or 

passwords; and sources of e-mails that contain attachments.

C. Admissibility of Digital Evidence

To be admissible, there must be a showing that there is a 

reliable computer program that converted the digital evidence to

something that a human can read. Computer records can be 

easily altered, and opposing parties may allege that computer 

records lack authenticity because they have been tampered with 

or changed after they were created. A few things can be done to 

reduce this possibility. For example, Windows® based 

computers associate certain file types with the software 

designed to create and read them so it is important to seize the 

computer software to show computer generated ―associations‖ 

between particular file types and software. Having the program 

that creates the data goes a long way to prove the same 

program will accurately print it out. Many software applications 

embed data regarding when a document was created and 

modified that identifies the computer on which this was done. 

Forensic experts should look for this data.
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The government can overcome the claim that the 

programs are unreliable by providing sufficient facts to warrant 

a finding that the records are trustworthy, and the defense is 

afforded an opportunity to inquire into the accuracy of those 

records.

D. The Best Evidence Rule Requirement for an 

―Original‖

According to FRE 1001(3): ―[i]f data are stored in a 

computer or similar device, any printout or other output 

readable by sight, shown to reflect the data accurately, is an 

―original.‖ An accurate printout of computer data satisfies the 

Best Evidence Rule. Doe v. United States.

E. Hearsay Issues

Whether the hearsay rules apply depends on whether the 

document is one generated by a computer or contains 

statements of a human being. Documents created by humans 

that are stored on a computer are ―statements‖ if the document 

is offered into evidence for the ―truth of the matter asserted.‖ (If 

the document is a statement of the defendant, it is excluded 

from the definition of hearsay.) You must still provide facts to 

prove it was the defendant‘s statement.

Records that are generated by a computer are NOT 

hearsay. Hearsay rules apply only to statements of humans. 

Records generated by a computer from computer data (phone 

billings, bank statements and the like) are admissible if they are 

authenticated as business records.

Other ―statements‖ that are seized from a computer must 

meet a hearsay exception or the author, who can authenticate 

and testify to the statement, must be located. So, a letter found 

on the computer from someone other than the defendant must 

meet hearsay exceptions before the contents of the letter can be 

admitted for the truth of the matter asserted.
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NOTES
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Chapter Five

Courtroom Testimony

I. INTRODUCTION.................................................................128

II. STAGES OF A CRIMINAL TRIAL ............................................128

III. EFFECTIVE WITNESS CHARACTERISTICS ...............................129

A. Meeting the Jury‘s Expectations........................................ 129

B. Characteristics that Jurors Expect of Witnesses ............... 129

1. Tell the Truth............................................................... 129

2. Be Impartial and Objective........................................... 129

3. Treat the Jury, Judge, and Counsel with Respect ........ 129

4. Be Prepared ................................................................. 129

5. Be Properly Attired....................................................... 130

6. Demeanor Counts........................................................ 131

7. Stay Serious ................................................................ 131

8. Avoid Having a ―Bad Attitude‖...................................... 131

9. Admit Mistakes............................................................ 131

V. ESSENTIAL LAW ENFORCEMENT TESTIMONIAL SKILLS ............132

A. Manner of Answers ........................................................... 132

B. Testimonial Skills that make LEO Testimony Convincing.. 132

1. Listen and Answer ....................................................... 132

2. Give Audible Responses ............................................... 132

3. Do not Volunteer Information ...................................... 132

4. Wait for Rulings on Objections..................................... 133

5. Prosecutorial Assistance .............................................. 133

6. Speaking to the Judge ................................................. 133

7. Avoid Cop Talk............................................................. 133

8. Just the Facts.............................................................. 133

9. ―I Don‘t Know‖ ......................................................134

10. ―I Don‘t Recall‖............................................................. 134

11. Positive and Definitive Answers.................................... 134

12. Memorized Testimony .................................................. 134

13. Speak to the Audience ................................................. 134

V. STATEMENTS AND REPORTS FOR COURTROOM TESTIMONY ......134

VI. IMPEACHMENT DURING CROSS-EXAMINATION ........................135

A. Direct, Cross-Examination, and Impeachment.................. 135

1. Direct Examination...................................................... 135

2. Cross-examination....................................................... 135

3. Impeachment............................................................... 135

4. Redirect Examination .................................................. 135

B. LEOs and the Frustration of Cross-Examination............... 136
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C. Common Cross-Examination Techniques.......................... 136

1. Yes or No Questions..................................................... 136

2. Putting Words in the Witness‘ Mouth........................... 136

3. The Badgered Witness.................................................. 137

4. Do Not Volunteer Information ...................................... 137

5. Pretrial Discussions with the Prosecutor...................... 137

6. Repetitive Questions .................................................... 137

7. Compound Questions .................................................. 138

8. Rapid-fire Questions .................................................... 138

9. Admission of Mistakes ................................................. 138

10. Possibilities.................................................................. 139

11. Friendly Defense Counsel ............................................ 139

12. Twisting Prior Testimony.............................................. 139

13. Conflicting Testimony Among Witnesses ...................... 139

14. Impeachment by Prior Statements ............................... 140

15. Corrected Statements .................................................. 140

16. Previous Lies................................................................ 140

VII. SUBJECTS NOT TO BE VOLUNTEERED WHEN TESTIFYING ..........140

A. Prior Criminal History ....................................................... 140

B. Advisement of Constitutional Rights ................................. 140

C. Suppressed Evidence ........................................................ 141

*****

I. Introduction

No matter how well law enforcement officers (LEOs) 

perform their duties, justice ultimately depends on how the 

facts are presented in court. Law enforcement officers are often 

the centerpieces of the prosecution‘s case. If the government‘s 

witnesses are not believed or cannot convince the judge or jury 

of the truth, the government cannot win. The principles in this 

course apply to any situation when an officer testifies.

II. Stages of a Criminal Trial

In some programs, Courtroom Testimony includes an 

EPO on stages of a criminal trial. (Check your syllabus.) If 

your program has this EPO, the student handout material is in 

Section II of the Courtroom Evidence chapter of this Handbook.
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III. Effective Witness Characteristics

A. Meeting the Jury‘s Expectations

Witnesses want to be believed by the jury. Witnesses who 

tell the truth serve justice. The jury is more likely to believe a 

witness, and justice is better served, if the witness has certain 

characteristics.

B. Characteristics that Jurors Expect of Witnesses

1. Tell the Truth

Telling the truth is the most important characteristic for 

any witness. Most jurors will believe LEOs until given some 

reason to doubt their testimony. Lying in a trial is a crime. It

destroys the ability of the defendant to receive a fair trial and

the ability of the government to secure a conviction of a guilty 

defendant.

2. Be Impartial and Objective

The jury wants to believe you are fair to all, including the 

defendant. Witnesses who are impartial and objective are more

likely to be believed.

3. Treat the Jury, Judge, and Counsel With 

Respect

Always address the counsel as ―Sir‖ or ―Ma‘am‖ and the 

judge as ―Your Honor.‖ Maintain eye contact with the people 

you are talking to - it is a sign of respect.

4. Be Prepared

Unprepared witnesses are not effective. Because there is 

often a delay between the conclusion of the investigation and 

the trial or hearing, you will need to refresh your memory prior 

to testifying. This process should include a thorough review of

notes, reports, and other documents associated with the case. 
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Ensure everything reviewed is known to the prosecutor –

everyone should be on the ―same sheet of music.‖

Review any physical evidence to help you identify it in 

court. It may be beneficial for you to revisit the crime scene

because the scene might have changed after the crime.

LEOs frequently go over their testimony with the 

prosecutor before trial. Rehearsing trial testimony in advance is 

an acceptable practice.

5. Be Properly Attired

Clothing, grooming and jewelry can make an unfavorable 

―statement‖ about the witness and his or her believability. If 

you normally wear a uniform on the job, jurors expect you to be 

in uniform in court. Leave behind extra accouterments and 

equipment, such as whistles, pagers, and shoulder 

microphones. Having extra equipment can make a long period 

in the witness chair uncomfortable. [Cellular phones and other 

electronic devices, if allowed at all, must be turned off or set to 

a silent setting prior to entering the courtroom.]

Your attire should always be clean, neat, and 

conservative. Always check the local Rules of Court to 

determine if firearms are permitted in court. Often they are not, 

even for LEOs.

LEOs who are not uniformed officers, should wear the 

type of clothing they would wear to an important job interview. 

Clothing suitable for an evening engagement is inappropriate. 

Men should wear a coat and tie. Women should wear the type 

of clothing suitable for a business setting.

Avoid excessive jewelry or accessories that ―make a 

statement‖ such as tie tacks in the shape of handcuffs, smoking

guns, or hangman‘s nooses, or pins of social, fraternal, political, 

or religious organizations.
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6. Demeanor Counts

Juries and judges consider your demeanor in evaluating

you‘re your credibility (believability). How you approach the 

witness stand, how you look while taking the oath, and your

posture in the witness chair can all have an effect on whether 

the jury or judge will believe you. A convincing ―Yes, I do‖ in 

response to the oath makes a positive first impression. Make a 

conscious effort to avoid sending unwanted messages through 

nonverbal communications. For example, rolling your eyes can 

be seen as an attempt to ridicule.

7. Stay Serious

Trials are serious occasions. When you testify, be serious 

and avoid laughing or smiling. Defense attorneys will 

commonly draw attention to an officer who smiles or laughs by 

asking, ―Do you think this is funny?‖ An individual‘s life and 

liberty may be at stake. Do not allow the defense attorney to 

imply that you believe the matter to be less than serious.

8. Avoid Having a “Bad Attitude”

A clever, superior, or cocky attitude turns people off. 

Answering clearly, succinctly, accurately, and professionally 

makes the testimony more convincing. A witness may be 

truthful in their testimony, but the judge or jury may not give 

the witness credence because of a ―bad attitude.‖

9. Admit Mistakes

Witnesses often will make mistakes in their testimony. A 

mistake must be corrected as soon as possible, even if it means 

bringing it up in the middle of a different line of questioning. If 

still being examined in the general area of the mistake, correct 

the mistake immediately. If the subject matter of the mistake 

comes up during cross-examination or redirect examination, the 

mistake should be admitted and corrected. If not given the 

opportunity to correct the mistake during your testimony, 
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inform the AUSA at the earliest opportunity. In this case, the 

AUSA will decide what action is appropriate.

IV. Essential Law Enforcement Testimonial Skills

A. Manner of Answers

The demeanor and manner in which you answer 

questions is important to ensure the jury or judge is convinced 

of the truth of the officer‘s testimony. These skills apply equally 

to direct and cross-examination.

B. Testimonial Skills that make LEO Testimony 

Convincing

1. Listen, think, and then Answer

Listen carefully to the questions asked and think about 

your response before speaking. While answers should not be 

rushed, long delays before answering simple questions will 

seem suspect to jurors.

2. Give Audible Responses

Never just nod your head to give a ―yes‖ or ―no‖ answer. 

Speak so that the court reporter can record the response. 

Similarly, if you gesture and say, ―It was this big,‖ or ―It 

happened here on the diagram,‖ the record will not reflect the 

information you hope to convey. Therefore, describe their 

gestures or actions such as, ―the knife was this big – about 14 

inches long.‖ Speak clearly, intelligibly, and loudly enough so 

that you will be heard and understood throughout the 

courtroom. Monotone presentations are far less effective than

presentations that contain variations in volume, speed of 

delivery, and tone.

3. Do Not Volunteer Information

Answer the question and then wait for the next.
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4. Wait for Rulings on Objections

Stop immediately when an attorney objects to a question 

and do not speak unless and until the judge has ruled. If an 

objection has been overruled, and you have forgotten the 

question, ask to have the question repeated. If the judge 

sustains the objection, say nothing further on that subject, and 

instead await the next question. Continuing to testify after an 

objection and before a ruling is unprofessional.

5. Prosecutorial Assistance

Do not look to the prosecutor or others for an answer. Do 

not look to others for help in answering a question. If a defense 

question is improper, the prosecutor will object. If you do not 

understand the question or it is unclear, ask that the question 

be repeated. 

6. Speaking to the Judge

Unless spoken to by the judge, you should not ordinarily 

address their questions or concerns to the judge. Address

requests to repeat, clarify, or rephrase questions to the counsel 

who asked the question. Address requests to refer to your 

notes or reports while testifying to the examining counsel.

7. Avoid Cop Talk

Avoid using legalese or police jargon such as, ―I proned

him out,‖ ―I did a protective sweep,‖ or ―I frisked him.‖ To be an 

effective communicator, talk to jurors in a language they will 

understand. 

8. Just the Facts

Testify only about matters within your personal 

knowledge, such as what you personally did, saw, smelled, 

touched, or, consistent with hearsay rules, heard. Let the other 

witnesses be responsible for testifying to their observations and 

actions. Do not offer their opinions unless specifically asked.
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9. “I Don’t Know”

If the correct answer to the question is ―I do not know,‖ 

say so in the same voice and manner used to answer other 

questions.

10. “I Don’t Recall”

This answer implies you once knew the information but at 

the moment, cannot recall it. This answer is not a truthful one 

if you remember, but just do not want to answer.

11. Positive and Definitive Answers

Give positive, definite answers when at all possible. Avoid 

saying, ―I think,‖ or ―I believe.‖ If you do not know, say so. If 

you cannot offer a precise answer but just an estimate, be sure 

to state that it is only an estimate.

12. Memorized Testimony

Don‘t testify from a report verbatim or memorize 

testimony. Prepare for trial and review the case, but do not 

memorize what you are going to say. Memorized testimony 

sounds unconvincing.

13. Speak to the Audience

People are accustomed to being ―looked in the eye‖ when 

someone is talking to them. On brief exchanges between you 

and counsel (yes or no answers, and quick replies), the jury 

does not expect you to turn back and forth between the counsel 

and the jury. On longer answers, turn to the jury (or the judge 

if there is no jury present) to give your reply.

V. Using Statements and Reports to Aid and Prepare for 

Courtroom Testimony

This topic is taught in some versions of Courtroom 
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Testimony. (Check your syllabus.) If this topic is taught in 

your course, refer to section II of the Courtroom Evidence 

Chapter of this Handbook.

VI. Impeachment of Witnesses during Cross-Examination

A. Direct Examination, Cross-Examination, and 

Impeachment

1. Direct Examination

When one side calls a witness, it is called ―testifying on 

direct examination.‖ Direct examination questions may not be 

leading; that is, they may not suggest the answer. Direct 

examination questions will ordinarily begin with who, what, 

why, where, when, or how.

2. Cross-examination

Every witness who testifies on direct examination may be 

cross-examined by the opposing counsel. On crossexamination, counsel is permitted to ask leading questions. So, 

instead of having to ask a question like, ―What did you do 

next?‖ on cross, counsel can ask a question like, ―Isn‘t it true 

that you then searched my client?‖

3. Impeachment

On cross-examination, the defense counsel is permitted to 

impeach the witness. Impeachment is destroying or minimizing 

the believability of the witness‘ testimony. Because counsel is 

permitted to ask leading questions on cross-examination, you 

must be especially careful when answering questions on crossexamination.

4. Redirect Examination

It is hard for witnesses to limit themselves to a yes or no 

answer and be denied the opportunity to explain it. Resist the 

temptation to be the government‘s advocate; that is the 
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136

prosecutor‘s job. Your opportunity to explain answers or 

expand on a yes or no answer comes during redirect 

examination. At that stage, you will be asked if you wish to 

explain your answer or to expand on your testimony during 

cross-examination.

B. LEOs and the Frustration of Cross-Examination

You are trained on, and survive by, being in control of the 

scene and the situation. Testifying in court, and especially on 

cross-examination, is frustrating for you because you are in an 

environment where the lawyers are in control. There is nothing 

that can be done about this except to learn how crossexamination works, being prepared for common crossexamination scenarios, and to trust that the prosecutor will 

clear up confusion caused by the defense during crossexamination.

C. Common Cross-Examination Techniques

Below are some common cross-examination techniques. 

This list is provided to help you recognize these techniques and 

how to avoid being unfairly trapped by them. The suggested 

counter-measures are not to suggest a witness should ever give 

an answer that is less than truthful.

1. Yes or No Questions

Generally, a party is entitled to a yes or no answer if one 

is possible. Such an answer is not possible if you do not know

the answer, do not recall the answer, or the answer is a 

compound question - two questions rolled up into one and 

asking for a single response. Attempts to fully explain an 

answer can be cut-off, but the prosecutor is entitled to have the 

explanation provided on re-direct examination. 

2. Putting Words in the Witness’ Mouth

Trial advocates are trained to ―testify for the witness‖ on 
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cross-examination and then get the witness to agree with what 

the lawyer said. That is the essence of leading questions that 

begin (or end) with, ―Wouldn‘t you agree that....?‖, ―Isn‘t it true 

....?‖, or ―You did X, didn‘t you?‖ To properly answer a leading 

question that suggests the answer, carefully listen to what the 

defense counsel is asking. If what the defense suggests is true, 

then answer yes. If not, answer no or attempt to provide the 

correct answer.

3. The Badgered Witness

Defense counsel knows that if a witness - especially a law 

enforcement officer - becomes angry, two things happen. First, 

you appear biased or not objective because you look like you are 

taking sides. Next, you focus on the anger and not the facts of 

the case, thereby becoming distracted. Do not become angry or 

antagonistic even when the defense counsel is clearly doing 

their best to bait you. An officer who is angry often exaggerates 

or appears to be less than objective.

4. Do Not Volunteer Information

Do not volunteer extraneous information. If a question 

cannot be truthfully answered with a ―yes‖ or ―no,‖ request 

permission to expand upon or explain the answer. Sometimes 

defense counsel will not say anything after the witness has 

answered suggesting to the witness they should keep talking. 

Remain silent in the face of this tactic.

5. Pretrial Discussions with the Prosecutor

There is nothing improper with having discussed or even 

rehearsed testimony before the trial. That is part of normal trial 

preparation. If asked by the defense counsel, ―Isn‘t it a fact you 

rehearsed your testimony with the prosecutor?‖ do not hesitate 

to say, ―Yes, Ma‘am,‖ if that is the correct answer. 

6. Repetitive Questions

The defense attorney may rephrase questions and ask the 
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same thing again. This is done to either emphasize a defensefavorable point, or to see if the answer will change. When a 

defense attorney starts asking the same question in a slightly 

different manner, respond ―As I stated earlier...‖ and then 

provide the same answer.

7. Compound Questions

The defense attorney may ask compound questions, that 

is, two or more questions presented as a single question. In 

such instances, if the prosecutor has not objected to the 

improper form of the question, address only one question at a 

time. For example, if asked ―Is it true that you arrested my 

client and searched him?‖ when you did arrest but did not 

search, examine these possibilities: 

A ―yes‖ or a ―no‖ is untruthful

The officer should answer, ―I arrested the defendant 

but did not search him.‖

If forced to answer yes or no, respond, ―I can‘t 

answer that question with a yes or a no.‖

8. Rapid-fire Questions

This technique is meant to rush the testimony,

disallowing the witness the time to understand the question 

and provide a correct answer. Resist the temptation to keep up 

with the defense counsel, but instead speak at your own pace in 

providing a truthful and accurate answer.

9. Admission of Mistakes

―Have you ever made a mistake?‖ The answer should be 

―yes.‖ Do not be afraid to admit a mistake. Jurors find officers 

who honestly admit mistakes to be credible. 
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10. Possibilities

―Isn‘t it possible that...‖ Anything is possible, but in 

many cases not probable. Testifying that ―anything would be 

possible; however, based upon the facts in this case, it does not 

appear probable,‖ is responsive while remaining believable. If 

not allowed to provide a complete answer, a simple, ―Anything is 

possible‖ will do.

11. Friendly Defense Counsel

The defense attorney may appear friendly to you during 

cross. This may lull you in to becoming overly familiar with 

defense counsel or appear to be less than professional. 

Additionally, if the defense attorney speaks softly or in a 

friendly tone and manner, often you will do the same. This 

technique is called mirroring. As a result, you may not speak 

up, the jurors may not hear your testimony, and your testimony 

will be less effective.

12. Twisting Prior Testimony

The defense attorney may attempt to restate your

testimony, and in doing so, misstate it. In such cases, listen 

very carefully when the defense attorney starts with the 

question ―You stated earlier....‖ Do not presume that the 

defense counsel will accurately portray the prior testimony 

accurately and in many cases, may intentionally misstate the 

testimony.

13. Conflicting Testimony Among Witnesses

If two or more officers have participated in the same 

investigation, the defense attorney may question both officers 

about each officer‘s observations in an attempt to find conflicts. 

Do not be bullied into admitting an error, declaring another 

officer ―wrong,‖ or losing confidence in your own command of 

the facts. Only testify to your actions and knowledge.
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14. Impeachment by Prior Statements

Showing a conflict between an earlier statement or report 

and the witness‘s in court testimony is powerful impeachment.

Listen carefully to all prior statements attributed to you and 

decide whether the current testimony is truly different.

15. Corrected Statements

―So, you lied (in your report) (in your testimony)?‖ This 

question arises when there is a mistake in testimony that is 

corrected or there is an irreconcilable difference between 

testimony and a prior statement. Distinguish between a lie or 

being untruthful on one hand, and a mistake on the other. A 

lie or being untruthful is an intentional act. Mistakes are not 

lies.

16. Previous Lies

―Have you ever lied before?‖ The answer is probably yes. 

Leave it to the prosecutor to conduct a redirect that any lie was 

never under oath, not in a report or official matter, and not 

related to anything that was important.

VII. Subjects that should not be Volunteered by a Witness 

when Testifying at Trial

A. Prior Criminal History

Unless specifically directed by the Court (or by the 

prosecutor based upon the judge‘s ruling), do not volunteer or 

offer the defendant‘s prior criminal history during a trial. The 

admissibility of a defendant‘s criminal history is subject to strict 

admissibility rules best left to the prosecutor.

B. Issues Surrounding the Advisement of

Constitutional Rights

Commenting in front of a jury about a defendant‘s choice 

to exercise his Constitutional right to remain silent is grounds 

for a mistrial. A person questioned by law enforcement in a 
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custodial setting has the Constitutional right to remain silent 

and/or have counsel present during questioning. Commenting 

on the fact that a defendant exercised either or both of these 

constitutional rights is inherently prejudicial, and is a 

recognized basis for a mistrial or reversal of a conviction.

If you are asked at trial about what happened when the 

defendant was arrested or booked, talk about what you did (i.e., 

―I processed the defendant and turned them over to the jail‖) 

without mentioning the Miranda warnings. Because this is a 

very tricky area, when in doubt, do not mention Miranda

warnings, the defendant‘s invocation of the right to silence, or 

invocation of the right to counsel.

In the limited instances where it is permissible for you to 

testify about the Miranda process or the defendant‘s Miranda

choices, counsel will ask specific questions calling for exactly 

that information.

C. Evidence that has been Suppressed or Declared 

Inadmissible

If the judge grants a motion to suppress evidence, such

evidence is not admissible in trial. For example, if a confession 

is obtained in violation of Miranda, the judge will suppress the 

confession. In other cases, evidence may be suppressed 

because it was obtained in violation of the Fourth Amendment.

While there are exceptions that might allow suppressed 

evidence to be admitted, during the trial do not mention or 

allude to evidence that has been suppressed unless specifically 

asked. Under the Fruit of the Poisonous Tree Doctrine, evidence 

that is derived from evidence that has been suppressed must

also not be referred to, unless you are specifically asked about 

that evidence.

The FLETC would like to thank Mr. Ron Smith, Associate Director of the 

Mississippi Crime Laboratory, Meridian, Mississippi for his contribution to this 

chapter. Mr. Smith is both a certified Latent Print Examiner and Certified 

Senior Crime Scene Analyst. Mr. Smith has graciously given the FLETC 

permission to use his text.
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NOTES
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Criminal Law Introduction

143

Chapter Six

Introduction to Criminal Law

I. INTRODUCTION TO CRIMINAL LAW .......................................143

A. What is a Crime? .............................................................. 143

B. Elements of Criminal Statutes .......................................... 144

C. Felonies and Misdemeanors .............................................. 145

D. Jurisdiction and the Assimilative Crimes Act .................... 145

*****

I. Introduction to Criminal Law

The subject of Criminal Law is very broad. All law 

enforcement officers continuously study criminal law 

throughout their career. By studying the selected federal laws 

presented in this course, you will gain an understanding of how 

to analyze and apply criminal statutes. Following this 

introduction, the course is divided into numerous independent 

sections. Read the appropriate section prior to attending the 

class on that subject. Separate chapters have been created in 

the text for the largest criminal law topics.

Certain concepts of criminal law apply to all federal 

crimes. These concepts include: the elements of an offense, the 

difference between a felony and misdemeanor, and jurisdiction. 

Additionally, the Assimilative Crimes Act outlines when state 

statutes are assimilated into federal law and become federal 

violations.

A. What is a Crime?

A crime is an act, or failure to act, prohibited by law and 

punishable by the government. Typical crimes include robbery, 
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144

rape, burglary, and murder. Crimes are different from torts in 

that criminal actions are brought by the government for the 

purpose of punishing the wrongdoer and deterring others from 

similar conduct. A tort is a civil action for compensation. For 

example, if a criminal committed a burglary, the government 

could prosecute him and place him in jail. In a tort action, the 

victim could sue the wrongdoer for an intentional tort to recover 

the stolen items or their equivalent value.

B. Elements of Criminal Statutes

On a few occasions this text refers to the ―common law.‖ 

You might also hear this term on the job. Common law was the 

unwritten law that existed before written statutes. There are no 

common law crimes in the United States today.

All criminal laws in the United States are in written 

statutes (statutory law). Each statute contains elements. Each 

of these elements must be proven beyond a reasonable doubt to 

obtain a conviction. Most crimes require both a criminal intent

and a criminal act. In other words, an individual must both 

intend to commit a prohibited act and then act in furtherance of 

that intent. However, that is not true in all cases. For example, 

a parent could be criminally charged with child abuse for not 

acting to care for their child.

Motive is a very important fact for the investigator and 

prosecutor. It can be used to solve crimes by identifying 

potential perpetrators and to prove criminal intent. However, 

motive is generally not an element of a crime.

The elements of crimes are best explained by example. 

The federal crime of murder, 18 U.S.C. § 1111, requires ―the 

unlawful killing of a human being with malice aforethought.‖ 

Murder requires a criminal intent, malice aforethought. Murder 

also requires a criminal act, the unlawful killing of a human 

being. This statutory construction is typical of criminal 

statutes in the United States.
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145

The federal crime of possession of a controlled substance, 

21 U.S.C. § 844, makes it unlawful to knowingly possess a 

controlled substance without a valid prescription or order. 

Therefore, to secure a conviction, the government must prove 

that the defendant ―knowingly‖ possessed a controlled 

substance. If the defendant agreed to hold his girlfriend‘s purse 

for her, he would in fact ―possess‖ the cocaine hidden inside. 

However, the defendant would not be guilty of a crime unless 

the state could prove the defendant ―knew‖ the purse contained 

a controlled substance.

Additionally, all criminal statutes require a penalty. 

Without penalties, our criminal system would have no meaning. 

These penalties can include fines, probation, incarceration and 

death. 

C. Felonies and Misdemeanors

Crimes are classified by the maximum penalty

authorized. Title 18 U.S.C. § 3559 specifically classifies a 

federal felony as an offense for which the maximum term of 

imprisonment authorized is more than one year and a 

misdemeanor as an offense for which the maximum term of

imprisonment is one year or less. An infraction is a type of 

misdemeanor where the term of imprisonment, if any, is no 

more than five days.

D. Jurisdiction and the Assimilative Crimes Act

Jurisdiction is the power to act when an offense has been 

committed. In many cases, the federal government can act 

when certain federal offenses are committed, regardless of the 

location of the offense. For other violations however, the federal 

government, and its law enforcement officers, are only 

empowered to act when the offense is committed on federal 

property. In such cases, the government of the state in which 

the federal property is located may also have jurisdiction. 

Determining whether the federal or state government, or both, 

can take jurisdiction depends on whether the federal 
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146

government has exclusive, concurrent, or proprietary

jurisdiction over the federal property where the offense 

occurred.

Exclusive jurisdiction means that only the United States 

government has criminal justice authority over the area. State 

or local law enforcement has no authority. All policing is done 

by the federal government.

Concurrent jurisdiction means that both the United 

States government and the state government have criminal 

justice authority over the area. Either, or both, the United 

States and the state authorities can investigate and prosecute 

crimes committed within areas of concurrent jurisdiction.

Proprietary jurisdiction means that the United States has 

no more authority over the area than any other owner of private 

property. The federal government has no particular right to 

execute any law enforcement activities in these areas.

Many State offenses are not included in the United States 

Criminal Code. However, this does not mean that people can 

simply go onto federal property and violate State laws. The 

Assimilative Crimes Act, 18 U.S.C. § 13, incorporates the laws 

of the State where the federal property is located. Therefore, in 

an area of exclusive or concurrent jurisdiction, the federal 

government can prosecute, under federal law, any acts which 

are violations of the laws of the State where the offense 

occurred. This only applies when there is no federal law 

covering the offense.
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Assault

147

Subpart A

Assault on Federal Employees

I. THE LAW OF ASSAULT AND BATTERY....................................147

I. ASSAULTING FEDERAL OFFICERS OR EMPLOYEES...................148

III. WHO IS COVERED? ...........................................................149

IV. “FORCIBLY” ....................................................................149

V. “ENGAGED IN OR ON ACCOUNT OF OFFICIAL DUTIES”..............150

VI. PENALTY .........................................................................150

*****

I. The Law of Assault and Battery

At common law and under the law of most state criminal 

codes, an assault is any willful attempt or threat to inflict injury 

upon another person with the apparent present ability to do so, 

and any intentional display of force that would give the victim 

reason to fear or expect immediate bodily harm. For example, if 

John attempts to punch Bob, but Bob evades the swing by 

ducking, John has committed an assault. John also commits 

an assault if he approaches Bob while holding a baseball bat, 

and tells Bob that he is going to smash his head in with it. It is 

reasonable for Bob to fear immediate bodily harm based on 

John‘s actions.

A battery is an intentional touching of another person, 

without consent, that is either harmful or offensive. If John 

gets angry at Bob and punches him in the face he has 

committed a battery. If John pokes Bob in the chest with his 

finger he has also committed a battery. A person does not need 

to actually touch another with his own body to commit a 

battery. Objects that are held by a person are considered 

extensions of the body. If John hits Bob in the head with a 

baseball bat he has committed a battery. Similarly, items 

thrown at another are extensions of the person who threw
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Assault

148

them. If John throws a rock at Bob and hits him in the head, 

he has committed a battery.

Title 18 U.S.C. § 1111 entitled, ―Assaulting, resisting, or 

impeding certain officers or employees,‖ does not distinguish 

between the separate offenses of assault and battery. Federal 

courts have determined that both types of conduct constitute 

an ―assault‖ prosecutable under § 111.

II. Assaulting Federal Officers or Employees

Title 18 U.S.C. § 111 has two sections. The first section 

covers a broad range of conduct, making it a crime to forcibly 

assault, resist, oppose, impede, intimidate or interfere with any 

person designated in 18 U.S.C. § 1114, while that person is 

engaged in his official duties, or on account of something that 

person did while performing his official duties. While § 1114 

will be discussed later, this portion of § 111 protects current 

federal officers, employees, and those who assist them while 

they are performing their official duties. These individuals are 

afforded protection under § 111 when they are either, assaulted 

while performing their jobs, or if not currently performing their 

jobs, are assaulted because of something they did while 

performing their jobs. For example, while on duty, a federal law 

enforcement officer is punched by a suspect while effecting an 

arrest. The suspect may be charged with assault under § 111. 

If the suspect‘s brother sees the same officer later that day, 

when he is off duty, and punches him because the officer 

arrested his brother earlier, he too may be charged with assault 

under § 111.

The second part of § 111 provides protection for those 

who formerly served as persons designated in § 1114. While 

not as broad as the coverage afforded in the first part of § 111,

a person can be prosecuted under this section if he forcibly 

assaults or intimidates a former federal officer, employee, or one 

who assisted them, on account of something that officer, 

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Assault

149

employee, or assistant did while performing his job. For 

example, a federal law enforcement officer arrests a suspect 

who is convicted and sent to prison. The officer leaves 

government employment and is assaulted by the suspect, after 

his release from prison, because the suspect is still angry at 

having been arrested by the former officer. The suspect may be 

charged with assault under § 111 because he assaulted the 

former federal officer on account of something the officer did 

while performing his official duties.

III. Who is Covered?

As mentioned before, § 111 provides protection for any 

person designated in 18 U.S.C. § 1114, or any person who 

formerly served as a person designated in § 1114. Therefore, in 

order to determine who is covered by § 111, it is necessary to 

examine § 1114. This statute provides for the protection of 

officers and employees of the United States, and reads, in part, 

as follows:

. . . any officer or employee of the United States or 

of any agency in any branch of the United States 

Government (including any member of the 

uniformed services) . . . or any person assisting 

such an officer or employee in the performance of 

such duties or on account of that assistance . . .

This means that every federal employee and every person 

who assists a federal employee in the performance of his official

duties is afforded protection under § 111. 

IV. “Forcibly”

For there to be a violation of § 111, the force element 

must be satisfied. In non-contact (threat) assault cases, there 

must be, at the very least, a present apparent ability to inflict 

bodily harm upon the government employee, accompanied by a 

threat or attempt to inflict such harm. An implied threat of the

use of force some time in the indefinite future does not 

constitute a violation.
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Assault

150

In a contact (battery) type assault, minimal physical 

contact qualifies as a violation. This includes such acts as 

pushing an officer with a finger, bumping an officer, hitting an 

officer with an object that has been thrown, or spitting on an 

officer.

V. “Engaged in or on Account of the Performance of 

Official Duties”

Current federal officers and employees are covered by 

§ 111 if they are assaulted while they are ―engaged in‖ the 

performance of their official duties. The Supreme Court has 

held that when a federal officer is assaulted while engaged in 

the performance of his official duties, it is not necessary for the 

government to prove that the defendant knew that the person 

he assaulted was a federal officer. Therefore, if an undercover 

officer is assaulted while performing undercover duties, the 

suspect may be charged under § 111 even if he was unaware 

that the person he assaulted was a federal officer.

VI. Penalty

The penalty for violating § 111 when the defendant‘s 

conduct amounts to only simple assault (no touching) is up to 

one year in prison. In all other cases, meaning an assault that 

does involve contact, but does not result in bodily injury, or 

involve a deadly or dangerous weapon, the penalty is up to eight 

years in prison. Assaults resulting in bodily injury or involving 

a deadly or dangerous weapon are punishable by up to twenty 

years in prison. Almost any object has the potential for being a 

deadly or dangerous weapon. Examples of violations of § 111 

which resulted in enhanced penalty for using a deadly or 

dangerous weapon include: hitting an officer over the head with 

a phone, throwing a water pitcher at an Assistant United States 

Attorney, hitting a federal officer with a stick, and attempting to 

run over a federal agent with an automobile.
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Bribery

151

Subpart B

Bribery

I. INTRODUCTION - TITLE 18 U.S.C. § 201..............................151

II. PUBLIC OFFICIALS ............................................................151

III. WITNESSES......................................................................152

IV. DIRECTLY OR INDIRECTLY ..................................................153

V. ANYTHING OF VALUE .........................................................153

VI. TO INFLUENCE AN OFFICIAL ACT .........................................153

VII. GRATUITIES.....................................................................154

*****

I. Introduction - Title 18 U.S.C. § 2011

Title 18 U.S.C. § 201 entitled, bribery of public officials

and witnesses, was enacted to protect government agents and 

witnesses from corrupting influences while they are performing 

their official duties. It covers any situation in which the 

judgment of a government agent or witness might be influenced 

because of payments or gifts made to him, while performing his 

official duties.

II. Public Officials

Two sections of 18 U.S.C. § 201 cover ―public officials.‖ It 

is a crime to give, offer or promise, a public official, directly or 

indirectly, anything of value, with the intent to influence any

official act by that public official. Conversely, it is a crime for a 

public official to either, directly or indirectly, corruptly demand, 

seek, receive, accept, or agree to accept anything of value, in 

return for influencing any official act by that public official. The 

term ―public official‖ includes any officer or employee or person

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Bribery

152

acting for or on behalf of the United States, or any department 

or branch of the United States government, or a juror.

It would be a violation for a person to offer a federal agent 

five thousand dollars to destroy a piece of evidence that was 

going to be used in a criminal case. It would also be a violation 

for the agent to accept the five thousand dollars in exchange for 

destroying the piece of evidence.

III. Witnesses

Two sections of 18 U.S.C. § 201 cover witnesses. It is a 

crime to, directly or indirectly, corruptly give, offer or promise, 

anything of value, to any witness, with the intent to influence

that witness‘ testimony under oath, at any trial, hearing, or 

other proceeding before any court, or before either of the 

Houses of Congress. It is also a crime to, directly or indirectly, 

corruptly give, offer or promise, anything of value, to any 

witness, with the intent to influence the witness to be absent 

from any trial, hearing or other proceeding as described above.

It a crime under § 201 for a witness to, directly or 

indirectly, corruptly demand, seek, receive or accept or agree to 

accept, anything of value, in return for being influenced in 

testimony as a witness or in return for being absent from any 

trial, hearing or other proceeding as described above.

Under this provision it is a crime to offer Bob the witness 

five hundred dollars to testify that the defendant was at his 

house watching television, when the robbery occurred, when 

this was not true. It would also be a crime for Bob to accept the 

five hundred dollars in exchange for his fabricated testimony. 

Also, it would be a crime for a person to pay Bob the witness 

five hundred dollars so Bob would intentionally not appear in 

court to give testimony. Bob could be charged under § 201 if he 

received the five hundred dollars in exchange for intentionally 

being absent from court.
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153

IV. Directly or Indirectly

In the previous examples the item of value, the currency, 

was given directly to either the ―public official‖ or witness. It is 

also a crime under § 201 if the item of value is given ―indirectly‖ 

to someone selected or designated by the ―public official‖ or 

witness. For example, if a person agreed to give five thousand 

dollars to the federal agent‘s spouse, in exchange for the agent 

destroying a piece of evidence in a case, this would qualify as a 

violation of § 201. Using the same example it would also be a 

violation if the person gave the five thousand dollars to a private 

school to cover the cost of tuition for the agent‘s children.

V. Anything of Value

To charge a defendant with bribery under § 201, it must 

be proven that ―a thing of value‖ was given, offered, promised, 

demanded, sought or accepted. A ―thing of value‖ is broadly 

construed with the focus being on the subjective value the 

defendant places on the item. Examples of ―things of value‖ 

include U.S. currency, automobiles, jewelry, promises of future 

employment, and all expense paid trips or vacations. It would 

be a crime under § 201 for a person to give a federal agent an 

all expense paid trip to Hawaii in exchange for the agent 

destroying a piece of evidence in a criminal case. 

VI. To Influence Any Official Act

In order to have a violation of § 201 a connection must be 

made between the ―thing of value‖ and an official act to be 

performed by the public official. The ―thing of value‖ must be 

given, offered, promised, demanded, sought or accepted with 

the corrupt intent to influence an official act. For example, as 

part of his official duties an IRS Revenue Agent conducts a tax 

audit and determines that an individual owes the government a 

sum of money. If that individual offers the IRS agent one 

thousand dollars to alter the results of the audit to show that 

no taxes are owed, he may be charged with violation of § 201. 

The individual offered a ―thing of value‖ to corruptly influence 
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the IRS agent to violate his official duty to perform accurate 

audits.

VII. Gratuities

Gratuities are also covered by 18 U.S.C. § 201. A gratuity 

is when a person gives, offers, promises, demands, seeks, 

receives or accepts anything of value for, or because of any 

official act performed, or to be performed by the ―public official.‖ 

A gratuity is similar to a bribe in that a ―thing of value‖ is 

involved; however, there is no corrupt intent to influence an 

official act by the ―public official.‖ It is sufficient to demonstrate 

that a gratuity was offered or requested, given or accepted for 

the performance of an official act. It is no defense that the 

gratuity had no effect upon the actions taken by the public 

official.

Government employees may also be prohibited from 

receiving or taking gifts of all types and value by their agency‘s 

administrative policies. Though some acts may not be worthy of 

criminal prosecution, the employee could be disciplined for 

violations of the agency policy.
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Subpart C

Federal Firearms Violations

I. INTRODUCTION.................................................................156

II. PROHIBITED PERSONS .......................................................157

A. Definition of Firearm......................................................... 157

B. Prohibited Persons ............................................................ 157

1. Convicted felon ............................................................ 157

2. Fugitive from justice .................................................... 158

3. Drug user/addict......................................................... 158

4. Adjudicated mentally defective..................................... 158

5. Non-permanent resident alien...................................... 158

6. Dishonorably discharged ............................................. 158

7. Renounced U.S. citizenship ......................................... 158

8. Domestic relations restraining order ............................ 158

9. Domestic violence misdemeanor conviction.................. 159

C. Pardon or Expungement ................................................... 159

III. ENHANCED MANDATORY PENALTIES.....................................160

A. Introduction...................................................................... 160

B. Definitions ........................................................................ 160

1. Crime of Violence......................................................... 160

2. Drug Trafficking Crime ................................................ 160

C. Enhanced Penalties........................................................... 161

1. Firearm Possessed ....................................................... 161

2. Firearm Brandished..................................................... 161

3. Firearm Discharged ..................................................... 161

IV. POSSESSION IN FEDERAL FACILITIES....................................161

V. WEAPONS REQUIRING REGISTRATION...................................162

A. Introduction...................................................................... 162

B. Procedure.......................................................................... 162

1. Is Registration Required? ............................................. 162

2. Is Weapon Registered? ................................................ 162

C. Weapons Requiring Registration ....................................... 162

1. Short-Barrel Shotgun .................................................. 162

2. Short-Barrel Rifle......................................................... 163

3. Machine Guns ............................................................. 163

4. Silencer/Muffler........................................................... 163

5. Destructive Devices...................................................... 163
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III. TRACING A FIREARM .........................................................164

A. Introduction...................................................................... 164

B. What Information is required? .......................................... 164

C. Trace Information ............................................................. 165

*****

I. Introduction

All law enforcement officers face the possibility of 

encountering firearms on the job. This course introduces 

selected federal firearms laws. There are many federal firearms 

laws which this course does not address. Likewise, this course 

does not address agency-specific officer concerns, such as the 

ability to carry off-duty, the ability to carry personal weapons, 

etc.

Many states and municipalities have firearms laws which 

are more restrictive than federal law. You should acquaint 

yourself with state and local firearms laws in your jurisdiction. 

This knowledge can be invaluable. For example, in a state with 

less restrictive firearms laws, it is not uncommon to spot a 

citizen carrying a concealed weapon. However, in a state that

prohibits citizens from carrying concealed weapons, your 

observation of such a weapon could create reasonable suspicion 

to justify an investigative stop and often a frisk for weapons.

Some dangerous weapons such as machine guns and 

sawed-off (―short-barrel‖) shotguns can be legally possessed if 

those in possession have met strict legal requirements. 

However, as in all cases involving armed suspects, officer safety 

is a paramount concern. You should always take steps to 

insure your safety and the safety of others before investigating 

to see if a weapon is legally possessed.
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II. Title 18 U.S.C. § 922(g) - Prohibited Persons

A. Definition of ―Firearm‖

Firearms are generally described as any weapon that will 

expel a projectile by explosive, including the frame or receiver of 

such weapon. The definition of ―firearm‖ also includes silencers 

and destructive devices such as bombs. However, the definition 

of ―firearm‖ does not include ―antique firearms‖ (those 

manufactured prior to 1899), air-powered weapons like BB and 

pellet guns, black powder weapons and authentic replicas of 

antique firearms.

B. Prohibited Persons

Federal law prohibits certain persons from possessing a 

firearm or ammunition. At trial, the government must prove a 

connection (―nexus‖) between the firearm and interstate 

commerce.

Federal law prohibits the following persons from 

knowingly possessing firearms or ammunition:

1. Convicted felon

A ―convicted felon‖ is anyone ―who has been convicted in 

any court of a crime punishable by imprisonment for a term 

exceeding one year.‖ The Supreme Court determined in 2005 

that convictions by foreign courts do not bar an individual from 

possessing a firearm even if the conviction was for a felony-level 

offense. The term ―any court‖ does include federal convictions, 

state convictions, and military courts-martial convictions.

This is called the ―convicted felon‖ prohibition. There are 

a few felony-level convictions that do not bar an individual from 

possessing a firearm. These exceptions include: (1) individuals 

convicted of ―a federal or state offense pertaining to antitrust 

violations, unfair trade practices or similar offenses relating to 

the regulation of business practices;‖ or (2) ―any State offense 

classified by the laws of the State as a misdemeanor and 
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punishable by a term of imprisonment of two years or less.‖ 18 

U.S.C. § 921(a)(20).

2. Fugitive from justice

The term ―fugitive from justice‖ means ―any person who 

has fled from any State to avoid prosecution for a crime or to 

avoid giving testimony in any criminal proceeding.‖ 18 U.S.C. § 

921(a)(15).

3. Unlawful user or addict of a controlled 

substance

4. An individual who has been adjudicated a 

mental defective or who has been committed to 

a mental institution

Note that the individual must have been ―adjudicated‖ 

mentally defective or ―committed‖ to a mental institution. Legal 

advice is sometimes helpful in deciding whether a specific case 

falls within this category. Voluntary outpatient treatment or 

counseling does not make an individual a prohibited person. 

5. An illegal alien or non-permanent resident 

alien, unless given special permission to carry 

a firearm

6. An individual who has been dishonorably 

discharged from the Armed Forces

7. Anyone who has renounced United States 

citizenship

8. Anyone subject to a court order restraining him 

from harassing, stalking or threatening an 

intimate partner, or child of such intimate 

partner

This prohibition applies only after the prohibited person 

has had a chance to participate in a hearing before the court. 
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Additionally, the restraining order must find the person a 

credible threat or explicitly restrain the prohibited person from 

the use of force against the protected person. 

9. Anyone who has been convicted of a 

misdemeanor crime of domestic violence

This means a conviction for a crime that is a 

misdemeanor under federal or state law and that

has, as an element, the use or attempted use of 

physical force, or the threatened use of a deadly 

weapon, committed by a current or former spouse, 

parent, or guardian of the victim, by a person with 

whom the victim shares a child in common, by a 

person who is cohabiting with or has cohabited

with the victim as a spouse, parent, or guardian, or 

by a person similarly situated to a spouse, parent, 

or guardian of the victim. 18 U.S.C. § 921(a)(33)(A).

For a domestic violence conviction to forbid lawful 

possession of a firearm, it must meet two qualifications: the 

defendant (1) must have been represented by counsel, or 

knowingly and intelligently waived the right to counsel; and (2) 

if right to trial by jury existed, either waived that right or been 

convicted by jury. 18 U.S.C. § 921 (a)(33)(B)(i).

C. Pardon or Expungement

A person who receives a complete pardon or expungement

of a felony or misdemeanor crime of domestic violence 

conviction is no longer considered convicted, and is, therefore, 

no longer disqualified from possessing a firearm. However, 

possessing firearms remains a crime under federal law if the 

pardon or expungement states that the person may not possess 

firearms. 18 U.S.C. § 921 (a)(20) and 18 U.S.C. § 921 

(a)(33)(B)(ii).
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III. Title 18 U.S.C. § 924(c)(1) - Use or Carrying of Firearm 

during Crime of Violence or Drug Trafficking Crime

A. Introduction

Title 18 U.S.C. § 924(c)(1) provides enhanced mandatory 

penalties for any person who possesses, brandishes or 

discharges a firearm during the commission of a crime of 

violence or drug trafficking crime. The term ―brandish‖ means 

to display the weapon or make possession of the weapon 

known. Any person subject to these enhanced penalties is not 

eligible for parole, probation or a suspended sentence. Further, 

the law requires that the enhanced penalty run consecutively to 

the term of imprisonment imposed for the crime of violence or 

drug trafficking crime.

B. Definitions

1. “Crime of Violence”

The term ―crime of violence‖ means

an offense that is a felony and –

(A) has as an element the use, attempted use, or 

threatened use of physical force against the person 

or property of another, or 

(B) that by its nature, involves a substantial risk 

that physical force against the person or property of 

another may be used in the course of committing 

the offense. 

2. “Drug Trafficking Crime”

The term ―drug trafficking crime‖ means ―any felony 

punishable under the Controlled Substances Act (21 U.S.C. § 

801 et seq.), the Controlled Substances Import and Export Act 

(21 U.S.C. § 951 et seq.), or the Maritime Drug Law
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Enforcement Act (46 U.S.C. App. 1901 et seq.).‖ This is a very 

broad definition. 

C. Enhanced Penalties

1. Firearm Possessed

If the firearm is possessed during the commission of a 

crime of violence or a drug trafficking crime, the mandatory 

penalty is imprisonment for not less than five years.

2. Firearm Brandished

If the firearm is brandished during the commission of a 

crime of violence or drug trafficking crime, the mandatory 

penalty is imprisonment for not less than seven years.

3. Firearm Discharged

If the firearm is discharged during the commission of a 

crime of violence or drug trafficking crime, the mandatory 

penalty is imprisonment for not less than 10 years.

IV. 18 U.S.C. § 930 - Possession of Firearms and 

Dangerous Weapons in Federal Facilities

It is unlawful to knowingly bring or possess a ―dangerous 

weapon‖ into a ―federal facility.‖ The term ―federal facility‖ is 

defined broadly to include any building (or parts of buildings) 

owned or leased by the federal government where federal 

employees are regularly present for performing their duties.

The term ―dangerous weapon‖ is also broadly defined. It 

includes any weapon or substance capable of causing death or 

serious bodily injury. However, a pocket knife with a blade less 

than 21⁄2 inches in length is listed by statute as not being a 

dangerous weapon.

State, local and federal law enforcement officers are 

exempt from this law while performing their official duties. 
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However, this does not give you an automatic right to carry

weapons into federal facilities. For example, most federal courts

require you to check your weapons and not bring them into the 

court.

V. Weapons listed in 18 U.S.C. § 922(a)(4) which require

registration with the Bureau of Alcohol, Tobacco,

Firearms and Explosives [“ATF” or “BATF”]

A. Introduction

Certain weapons are under strict scrutiny. They are not 

illegal to possess per se, but must be registered with ATF for 

their possession to be legal. 26 U.S.C. § 5861 prohibits 

possession of such unregistered weapons. These weapons 

include short-barrel shotguns, short-barrel rifles, machine 

guns, silencers/mufflers and destructive devices.

B. Procedure

If you encounter or reasonably suspect that a weapon 

must be registered, the following procedures are recommended:

1. Determine if Registration Required

Determine whether the weapon is required to be 

registered by examining the weapon or measuring the weapon.

2. Determine if Weapon Is Registered

If registration is required, determine if the weapon is 

properly registered to the current possessor of the weapon.

C. Weapons Requiring Registration

1. Short-Barrel Shotgun or Weapon Made From a 

Shotgun

Any short-barrel shotgun or weapon made from a 

shotgun must be registered if the barrel of the weapon is less 
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than 18 inches in length and/or the overall length of the 

weapon is less than 26 inches. To check the weapon for 

compliance, measure from the tip of the muzzle to a point 

perpendicular to the end of the stock of the weapon.

2. Short-Barrel Rifle or Weapon Made From a 

Rifle

Any short-barrel rifle or weapon made from a rifle must

be registered if the barrel of the weapon is less than 16 inches 

in length and/or the overall length of the weapon is less than 

26 inches. Again, to check the weapon for compliance, measure 

from the tip of the muzzle to a point perpendicular to the end of 

the stock of the weapon.

3. Machine Gun

All machine guns must be registered. A machine gun is 

any weapon which shoots, is designed to shoot, or can be 

readily restored to shoot, automatically more than one shot, 

without manual reloading, by a single pull of the trigger. This 

term includes the frame or receiver of any such weapon, any 

combination of parts from which a machine gun can be 

assembled, and parts which convert an ordinary firearm into a 

machine gun. Generally, there are two types of machine guns 

encountered by law enforcement officers: Originally 

manufactured machine guns and those converted from 

semiautomatic weapons.

4. Silencer/Muffler

Any device for silencing, muffling, or diminishing the 

explosive noise of a firearm must be registered.

5. Destructive Device

All destructive devices must be registered. The term 

destructive device means any explosive, incendiary, or poison 

gas, bomb, grenade, rocket (with more than 4 oz. of propellant), 

missile (with more than .25 oz. of explosive), mine, or similar 

device. The term also includes any type of weapon (regardless 
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of name) which will, or which may be readily converted to, expel 

a projectile by the action of an explosive or other propellant, the 

barrel or barrels of which have a bore of more than 1⁄2 inch in 

diameter, except a shotgun or shotgun shell which is generally 

recognized as particularly suitable for sporting purposes. 

Common examples of destructive devices include: rocket 

launchers, mortars, land mines, and hand grenades.

VI. Tracing a Firearm through the National Tracing

Center, Bureau of Alcohol, Tobacco, Firearms and 

Explosives

A. Introduction

The ATF National Tracing Center handles about 250,000 

firearm trace requests annually. Tracing a firearm may assist

your investigation in any number of ways. The main reason 

you trace firearms is to link weapons used criminally to a 

specific person. Additionally, the trace may assist in 

identifying: (1) stolen property; (2) associates of suspects; and 

(3) sources and suppliers of firearms for criminal suspects.

Finally, tracing firearms helps to prove the connection (―nexus‖) 

between the firearm and interstate commerce-- a connection 

that must be proved for some federal firearms violations.

B. What Information is Required to Trace a Firearm?

In order to trace a firearm, the following information must 

be provided to ATF.

Make: For example, a ―Colt.‖

Model: For example, a ―Detective Special.‖

Caliber/Gauge: For example, ―.38 Caliber.‖

Serial Number: For example, ―33419.‖
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C. Information Gained from Successful Trace

Tracing the weapon should reveal the following 

information: the manufacturer, the importer if the weapon is 

foreign-made, the wholesale distributor, the retail gun dealer 

and the first lawful retail purchaser from the dealer. 

Subsequent transactions (like sales between private citizens) 

might also be noted.
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NOTES
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167

Subpart D

Federal Drug Offenses

I. INTRODUCTION.................................................................167

II. CONTROLLED SUBSTANCES.................................................167

A. Defined ............................................................................. 167

B. Possession ........................................................................ 168

C. Distribution ...................................................................... 169

D. Penalties and Charging ..................................................... 170

*****

I. Introduction

Due to pervasive substance abuse in our society, it is 

imperative that law enforcement officers have a working 

knowledge of controlled substance offenses. At various times 

during their careers, law enforcement officers, regardless of 

agency assignment, are likely to face a variety of controlled 

substance offenses.

II. Controlled Substances

Unlawful and knowing possession and possession with 

the intent to distribute (transfer) controlled substances are 

criminal offenses. These substances would be legal to possess 

and distribute, but for the statutes which ―control‖ them. 

Alcohol and tobacco are not listed as controlled substances.

A. Defined

A controlled substance is defined by federal statute as a 

―drug or other substance...‖ identified in schedules I, II, III, IV, 

and V of Part B of [21 U.S.C. § 812] . Schedule I substances are 

considered the most dangerous, as they have no currently 

accepted medical use and have a very high potential for abuse. 

The remaining schedules list drugs based on their accepted

medical use and their potential for abuse. The schedules list 
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drugs by their scientific names. They also list finished drugs 

like cocaine, and the raw material, such as cocoa leaves, from 

which it is created. Controlled substance analogs are 

substances which have substantially similar chemical 

structures to controlled substances. Analogs are criminalized, 

as are immediate precursor chemicals necessary to create the 

drugs. When charging these offenses, the controlled substance 

must be listed in one of the five schedules and must be proven 

beyond a reasonable doubt. 

B. Possession

Pursuant to 21 U.S.C. § 8441, it is ―unlawful for any 

person knowingly or intentionally to possess a controlled 

substance...‖ unless such substance was obtained directly from 

a medical practitioner pursuant to a valid prescription or as 

otherwise authorized by law. Thus, a person with a valid 

prescription from his physician or who has received the drug 

from his physician for use in treating an ailment would be in 

lawful possession of the drug. Knowingly means that a person 

realizes what he is doing and is aware of the nature of the 

conduct and does not act through ignorance, mistake, or 

accident. A person‘s words, acts, or omissions can be used to 

determine if they acted ―knowingly.‖ Mere presence at the scene 

of a controlled substance offense is not, by itself, sufficient 

evidence to convict a defendant. However, if a suspect has a 

suspicion a crime was being committed and shut his eyes for 

fear of what he may learn, a jury may conclude the defendant

had sufficient knowledge to establish criminal culpability. It is 

the law enforcement officer‘s responsibility to develop facts to 

prove all the elements of the offense.

Possession is the ability to control the substance. 

Knowing possession means that the person has knowledge of 

the nature of the possessed substance. It is not necessary that 

the person knows the exact nature of the substance (that it is 

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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cocaine for example). It is sufficient the person knows it is 

prohibited. Similarly, if the person believes the substance to be 

cocaine when in fact it is heroin, the person has sufficient 

knowledge it is prohibited. However, a person who possesses 

cocaine, but actually believes it to be powdered sugar, does not 

knowingly possess a controlled substance.

Possession of a controlled substance can be actual or 

constructive. Actual possession occurs when the substance is 

physically controlled by the person (in their hand for example). 

Constructive possession occurs when the person is not in 

actual physical contact with the substance, but has the power 

and intention to exercise direction and control over it. If the 

controlled substance is in the trunk of their car, on their 

dresser, or in their desk drawer, they have constructive 

possession. Joint possession occurs when more than one 

person possesses the same controlled substance. For example, 

if two people knowingly transport cocaine, a controlled 

substance, in the trunk of a car, they jointly possess the 

cocaine through constructive possession.

Any amount of a controlled substance can support a 

conviction for a properly charged offense. A trace amount of 

cocaine, a marijuana seed, residue on a roach clip, or a dried 

solution on a syringe is all that is needed to support a 

conviction when the offense is properly charged. The amount 

and type of the controlled substance to include the statutes 

used to charge the offense will have a direct impact on the 

sentence, but not the conviction itself.

C. Distribution

Title 21 U.S.C. § 841(a)2 makes it unlawful for any person 

knowingly or intentionally: ―(1) to manufacture, distribute, or 

dispense, or possess with intent to manufacture, distribute, or 

dispense, a controlled substance...‖ Possession with intent to 

 

2 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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manufacture, distribute, or dispense is usually proved through 

circumstantial evidence. Words, acts, omissions, packaging 

materials, method of packaging, scales, quantity, value, purity, 

presence of cash, distribution paraphernalia and transportation 

arrangements can all be used to circumstantially prove 

possession with intent to distribute. No commercial transaction 

(exchange of drugs for money) is required. All that is necessary 

is evidence to support the knowing distribution (transfer) or 

possession with intent to distribute (transfer) the controlled 

substance. It is the law enforcement officer‘s responsibility to 

develop facts to prove elements of the offense.

D. Penalties and Charging

Penalties are dependent upon the amount and type of 

drug (which schedule is affected) and how the offense is 

charged. Distributing controlled substances within 1,000 feet 

of a school or playground, or at a public transportation highway 

rest stop or truck stop, or by using or employing a minor, are 

chargeable offenses with enhanced punishments. Attempts, 

conspiracies (no overt act is required for a drug conspiracy –

only the agreement is required), and importation are other 

examples of ways in which controlled substances can be 

charged and penalized. Simple possession of ―user amounts‖ is 

a misdemeanor offense. Offenses can result in criminal 

forfeitures and civil penalties as well.
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Subpart E

The Entrapment Defense

I. INTRODUCTION AND OVERVIEW ...........................................171

II. HOW THE ENTRAPMENT DEFENSE WORKS.............................172

III. ANALYSIS OF THE ENTRAPMENT DEFENSE.............................172

A. Government Inducement................................................... 172

1. Permitted Inducements................................................ 173

2. Prohibited Inducements............................................... 173

B. Predisposition ................................................................... 173

C. Examples of Predisposition ............................................... 174

1. An Existing Course of Similar Conduct........................ 174

2. Previously Formed Intent............................................. 174

3. A Ready Response to a Criminal Offer.......................... 175

D. Examples of NO Predisposition ......................................... 175

1. Extreme Appeals to Emotion........................................ 175

2. Threats ........................................................................ 175

3. Excessive Amounts of Money ....................................... 175

IV. CONCLUSION....................................................................176

*****

I. Introduction and Overview

Entrapment is the act of government officers or their 

agents (e.g., informants) inducing a person to commit a crime 

not contemplated by that person, for the purpose of prosecuting 

that individual. It is the conception and planning of an offense 

by officers or their agents and their procurement of its 

commission by one who would not have perpetrated it except for 

the trickery, persuasion or fraud of the officer/agent. 

Government agents may not originate a criminal design, 

implant in an innocent person‘s mind the disposition to commit 

the criminal act, and then induce commission of the crime so 

that the government may prosecute.

Entrapment occurs only when the criminal conduct was 

the product of the activity of law enforcement officials. This
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means that entrapment cannot result from the inducements of 

a purely private citizen, but must be the product of government 

conduct initiated by its officers or their agents.

II. Overview of How the Entrapment Defense Works

Entrapment is an affirmative defense. The defendant 

must establish sufficient evidence from which a reasonable jury 

could find entrapment. This is typically done during the 

government‘s case-in-chief through the cross-examination of 

the government‘s witnesses. It can also be a part of the defense 

case if one is presented. The question of entrapment is one for 

the jury to decide unless the right to jury trial is waived and the 

case is submitted to the judge.

The critical factor in the entrapment defense is the state 

of mind of the defendant. At issue is the defendant‘s 

predisposition to commit the offense charged. The question is 

whether the defendant, before contact with law enforcement 

officers or their agents, already possessed the state of mind to 

commit the offense charged. Once the defendant has raised 

the entrapment defense, the government must negate it by 

establishing predisposition beyond a reasonable doubt. If 

defendant‘s predisposition is established, there is no 

entrapment.

III. Analysis of the Entrapment Defense

A valid entrapment defense consists of two components:

Government inducement of the crime, and

Lack of predisposition by the defendant to commit 

the crime.

A. Government Inducement

Entrapment occurs when the criminal activity is induced 

by government officers or agents. Inducement by law 

enforcement officers may take many forms including 
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persuasion, fraudulent representations, threats, coercive 

tactics, harassment, promises of reward, or pleas based upon 

need, sympathy, or friendship.

1. Permitted inducements

Some inducements are unlikely to tempt a law-abiding 

person to commit a crime. Some inducements are so innocuous 

that courts generally condone their use. Examples include: use 

of decoys ( ̳robo‘ deer – metal decoys to catch poachers), 

payments of reasonable amounts of money, assistance in 

facilitating the commission of the crime by providing equipment 

or supplies (e.g., paper for counterfeiting or chemicals for drug 

manufacture).

2. Prohibited inducements

Some inducements are so coercive that their use 

jeopardizes any chance of successful prosecution. These may 

create the appearance, and sometimes the reality, of outright 

duress. Examples are:

a threat against the well-being of the target‘s family

extreme appeals to the sympathy or emotions of the 

person solicited

offers of unreasonable amounts of money to an 

impoverished or financially desperate target

continual pressure such as repeated phone calls, 

visits or requests; repeated insistence, badgering

violent demonstrations or threats.

B. Predisposition

Predisposition does not mean that the defendant on his 

own, under some conceivable set of circumstances, might 
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commit the crime. Predisposition means that the defendant is 

presently ready and willing to commit the crime. Predisposition 

is a state of mind that readily responds to the opportunity 

furnished by the government or its agent to commit the offense.

Predisposition can be shown in many ways such as:

statements made by the defendant before, during,

and even after the inducement 

character and reputation 

motive for committing the crime

eagerness or ready acceptance of the government‘s 

suggestion

possession of contraband for sale on his premises

prior convictions or criminal activity of the same or 

similar nature evidencing intent, motive or 

knowledge

acceptance of an offer to supply the last essential 

ingredient to manufacture drugs.

C. Examples of Fact Situations Establishing 

Predisposition

1. An Existing Course of Similar Conduct

The defendants have been selling cocaine for some time 

when an undercover agent makes a purchase from them. The 

criminal intent or design did not originate from the government.

2. Previously Formed Intent

The defendant had purchased paper and ink and was 

trying to get a counterfeit operation underway when government
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agents heard of her intent and provided additional materials 

and expertise. The criminal intent in this instance was not the 

creation of the government.

3. A Ready Response to a Criminal Offer

An undercover agent asks a bootlegger, ―How much for a 

bottle?‖ The bootlegger promptly replies, ―$5.00.‖ Here, it was 

obviously not necessary for the agent to ―lure, inspire, or 

persuade‖ the bootlegger, who was clearly ready and willing to 

commit the crime as soon as an opportunity arose.

D. Examples of Fact Situations Suggesting NO 

Predisposition

1. Extreme Appeals to Emotion

An undercover government agent approaches a nurse in a 

hospital and asks for a prescription pain-killing drug. The 

nurse is reluctant to provide it. The agent persists, telling the 

nurse that his daughter is dying of cancer and he can‘t stand to 

see his daughter suffer. After numerous requests, the nurse 

finally relents and provides a small amount of the drug.

2. Threats

A government informant advises a government agent that 

Bob might be interested in drug smuggling. The informant then 

kidnaps Bob‘s wife and tells Bob he had better smuggle a load 

of cocaine for the informant to sell or the informant will kill his 

wife. Bob agrees to smuggle the cocaine.

3. Excessive Amounts of Money

An ATF agent knows that a middle class businessman is 

having serious money problems. The agent offers the 

businessman $75 million to smuggle some illegal weapons into 

the country. After a few requests, the businessman agrees to 

smuggle the weapons.
_______________

Entrapment

176

IV. Conclusion

Whenever you induce a person to commit a crime, you 

should be prepared to refute an entrapment defense with facts 

that demonstrate the defendant‘s predisposition. Thorough 

reports detailing statements and actions of the defendant can 

greatly enhance the government‘s ability to negate the defense. 

Be aware however, the Supreme Court has clearly indicated 

that outrageous government conduct, which orchestrates a 

criminal offense, can be as a matter of law, an absolute bar to a 

prosecution even if the defendant is predisposed. Thus, proper 

investigation planning, to include monitoring and controlling 

informants to ensure even-handed treatment, is essential.
_______________

False Statements

177

Subpart F

False Statements

I. ELEMENTS.......................................................................177

A. Regarding Certain Federal Matters.................................... 177

1. Judicial Proceedings .................................................... 178

2. Legislative Branch Matters........................................... 178

B. Knowingly and Willfully - Intent........................................ 179

C. False Material Statement or Concealing a Material Fact.... 179

*****

I. Elements

In order to successfully prosecute a defendant for 

violating 18 U.S.C. § 10011, the following elements must be 

met:

The defendant

Regarding certain federal matters

knowingly and willfully

made a false material statement, or

concealed or covered up a material fact.

A. Regarding Certain Federal Matters

Section 1001 applies to false statements made in a matter 

within the criminal jurisdiction of the executive, legislative, or 

judicial branches. The statute applies to statements made 

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________

False Statements

178

during administrative, civil, or criminal investigations, or during 

regulatory or rule-making activities, with the following 

limitations:

1. Judicial Proceedings

Section (a) of the Act does not apply to a party or that 

party‘s counsel for any statements, representations, writings or 

documents submitted by them to a judge or magistrate during a 

judicial proceeding. Thus, non-parties could be prosecuted for 

any false statements made during a judicial proceeding, while a 

party could only be prosecuted for false submissions made to a 

judicial entity during administrative housekeeping matters. 

Such entities include, for example, the Office of Probation and 

the Clerk of the Court.

2. Legislative Branch Matters

Section (a) of the Act applies to matters within the 

jurisdiction of the legislative branch only if they relate to 

administrative matters or Congressional investigations 

conducted consistent with applicable Congressional rules. 

Administrative matters include such things as financial 

disclosure filings, claims to the House Finance Office, and 

submissions to legislative entities, such as the General 

Accounting Office, the Government Printing Office, the Library 

of Congress, the Office of the Inspector General of the House, 

and the Capitol Police.

Duly authorized investigations or reviews are those that 

are initiated through a formal action of a House or Senate 

committee, or the whole House or Senate. Inquiries by 

members of Congress or their staff are not a duly authorized 

investigation under § 1001.

The statute covers false statements made to a federal 

agency by a witness/informant about alleged criminal acts 

within the jurisdiction of the agency, even when no such 

criminal acts actually occurred. False statements made to an 

agency regarding the regulatory functions of a federal 

department or agency fall under § 1001. Courts have upheld 
_______________

False Statements

179

convictions under this section where individuals have made 

false statements to state agencies which are recipients of federal 

funds.

B. Knowingly and Willfully - Intent

In order to be a violation of § 1001, a statement must be 

capable of affecting the exercise of a government function. The 

intent must be to deceive or mislead. Intent to defraud is not 

required for a successful § 1001 prosecution.

C. Makes a False Material Statement or Conceals or 

Covers Up a Material Fact

The false statement must be material for a person to be 

convicted of making a false statement under § 1001. The 

Supreme Court has held that a material statement ... must have 

a natural tendency to influence, or be capable of influencing, 

the decision of the decision making body to which it was 

addressed. Materiality is a mixed question of law and fact for 

the jury.

A false statement, under § 1001, is not required to be 

made under oath or affirmation. The false statement can be 

oral (a statement made during an interview) or can be written 

(part of a document submitted to an agency). Case law has 

shown that false statements made on federal tax documents, in 

interviews related to a tax investigation, on an application for

federal employment, and during an interview with a Customs 

official at a secondary inspection site were all violations of § 

1001.

At one time, some circuits held that false ―exculpatory no‖ 

statements made by a suspect to agents in a criminal 

investigation did not violate § 1001. An ―exculpatory no‖ 

statement is a statement in which a suspect merely denies that 

he is guilty of the crime which he committed. However, the 

Supreme Court has now ruled that § 1001 covers any false

statement, of whatever kind, including the use of the word ―no‖

in response to a question. A suspect has the right to remain 

silent but no right to lie.
_______________

False Statements

180

NOTES
_______________

Theft

181

Subpart G

Theft, Embezzlement, and Conversion

I. INTRODUCTION.................................................................181

II. TERMS OF THE STATUTE....................................................181

III. THEFT ............................................................................182

A. Elements........................................................................... 182

B. Example............................................................................ 182

IV. EMBEZZLEMENT ...............................................................183

A. Elements........................................................................... 183

B. Example............................................................................ 184

V. CONVERSION....................................................................185

A. Elements........................................................................... 185

B. Example............................................................................ 185

VI. RECEIPT OF STOLEN PROPERTY ..........................................186

A. Elements........................................................................... 186

B. Example............................................................................ 186

*****

I. Introduction

Title 18 U.S.C. § 6411, titled ―Public Money, Property or 

Records,‖ is a comprehensive statute designed to address four 

crimes which, at common law, were separate and distinct 

offenses. The statute applies to theft, embezzlement, conversion, 

and receiving stolen property of the United States government 

or any department or agency thereof.

II. Terms of the Statute

For purposes of the statute and this text, ―property‖ refers 

to any records, vouchers, money, or things of value of (or any 

property made or being made under contract for) the United 

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________

Theft

182

States or any department or agency thereof. If the value of the 

property stolen, embezzled, converted, or received is more than 

$1,000, the offense is a felony and could result in ten years 

confinement and a maximum fine of $250,000. If the value of 

the property stolen, embezzled, converted, or received is $1,000 

or less, the offense is a misdemeanor and could result in 

confinement of up to one year and, pursuant to 18 U.S.C. § 

3571, a maximum fine of $100,000.

III. Theft

Section 641 codifies the common law crime of larceny. 

―Theft‖ is defined as the wrongful taking and carrying away of 

property belonging to the United States government or any 

agency thereof with the intent to deprive the United States 

government of the use or benefit of the property so taken.

A. Elements

Three elements must be proven to convict a defendant of 

―theft‖ under § 641. These elements are:

That the defendant voluntarily, intentionally, and 

knowingly

Stole property belonging to the United States or any 

department or agency thereof

With the intent to deprive the United States of the 

use or benefit of the property so taken.

B. Example

A defendant takes a vehicle that belongs to the United 

States government, intending to keep it for his own use and 

enjoyment. The defendant is guilty of theft of government 

property. He knowingly stole property belonging to the United 

States with the intent to deprive the United States of the use of 

the property.
_______________

Theft

183

A defendant ―steals‖ property when he or she takes and 

carries away property belonging to another with the intent to 

deprive the owner of the property. To successfully prosecute a 

defendant for theft under § 641, the government must prove 

that the defendant had, at the time of the taking, the specific 

intent to deprive the United States of the use or benefit of the 

property. The defendant is not required to know that the item 

he stole belonged to the United States or one of its departments 

or agencies. Rather, all that needs to be proven is that the 

defendant knew he was taking something that did not belong to

him. The fact that the item belonged to the United States 

government is something the government must show in order to 

furnish a basis for federal jurisdiction over the crime. The 

defendant‘s knowledge of this jurisdictional fact is irrelevant. In 

order to prove that an item belongs to the United States, the 

government must prove that it had ―title to, possession of, or 

control over‖ that item. If the defendant takes the property 

believing that it was abandoned, that is a defense to a 

prosecution brought under § 641. In cases where the crime is 

alleged to have been a felony, the government must prove one 

additional element: That the value of the item stolen is greater 

than $1,000.

IV. Embezzlement

―Embezzlement‖ is defined as the wrongful, intentional 

taking of property of another by an individual to whom the 

property had been lawfully given by reason of some office, 

employment, or position of trust (such as a bank manager). In 

other words, the original taking of the property is lawful or done 

with the express or implied consent of the owner. However, 

once the property is lawfully acquired by reason of the 

defendant‘s position of trust (sometimes referred to as a 

―fiduciary‖ relationship), the defendant intentionally takes the 

property and applies it for his personal use.

A. Elements

In order to prove the crime of embezzlement, the 

government must again prove three elements. With the 
_______________

Theft

184

exception of the second element, the elements of embezzlement 

are the same as those for theft. These elements are:

That the defendant voluntarily, intentionally, and 

knowingly

Embezzled property belonging to the United States 

or any department or agency thereof

With the intent to deprive the United States of the 

use or benefit of the property so taken.

B. Example

A federal employee is responsible for selling stamps to the 

public. Instead of depositing the money received into a 

government account, the employee keeps the money for his 

personal use. The employee has committed the crime of 

embezzlement. The money was property of the United States; 

the employee was entrusted with the money legally; he deprived 

the United States of the use of the money taken; and 

intentionally appropriated the money to his own personal use.

While the elements are virtually identical for both crimes, 

embezzlement and theft are separate and distinct offenses. 

With the crime of embezzlement, the original acquisition of the 

property is lawful; there is no fraud or crime committed in the 

original obtaining of the property. It is only after the property 

has been entrusted to him or her that the defendant forms the 

intent to deprive the owner of the use of the property taken. 

This is the primary difference between embezzlement and theft 

of government property. In embezzlement, the original taking 

was lawful or with the consent of the owner, and the intent to 

deprive the United States of the property originated later. In 

theft, the intent to deprive the United States of the property 

must exist at the time of the taking. Again, if the crime is 

alleged to have been a felony, the government must also prove 

that the value of the property embezzled was over $1,000.
_______________

Theft

185

V. Conversion

―Conversion‖ is defined as wrongfully depriving the United 

States or any department or agency thereof of its property. In 

its most basic form, ―conversion‖ simply means that an 

individual lawfully comes into possession of United States 

property and wrongfully converts it to his or her own use. 

Conversion does not require that the defendant intend to keep 

the property permanently, nor does it require an unlawful 

taking by the defendant. Under § 641, conversion may include 

misuse or abuse of government property, as well as use of the 

property in an unauthorized manner or to an unauthorized 

extent.

A. Elements

Like theft and embezzlement, there are three elements 

necessary to convict a defendant of conversion under § 641. 

Again, with the exception of the second element, the elements of 

conversion are identical to those of theft and embezzlement. 

These elements are:

That the defendant voluntarily, intentionally, and 

knowingly;

Converted property belonging to the United States 

or any department or agency thereof;

With the intent to deprive the United States of the 

use or benefit of the property so taken.

B. Example

A federal agency has a government vehicle for its 

employees to use for official purposes. At lunch one afternoon, 

one of the employees uses the government vehicle to go 

shopping for a couple of hours at a local mall. The employee is 

guilty of conversion under § 641. The employee wrongfully 

deprived the United States government of its property during 

the unauthorized use of the government vehicle.
_______________

Theft

186

VI. Receipt of Stolen Property

The statute also prohibits knowingly receiving stolen, 

embezzled, or converted United States government property. 

Because the individual receiving the stolen property knows that 

it has been stolen, he or she does not have any legal interest in 

the property, which continues to belong to the party from which 

it was stolen (i.e., the United States).

A. Elements

In order to convict a defendant of receiving stolen 

property, the government must prove these four elements:

That the defendant voluntarily, intentionally, and 

knowingly received

Stolen, embezzled, or converted property belonging 

to the United States government or any department 

or agency thereof

Knowing that the property had been stolen, 

embezzled, or converted

With the intent to deprive the United States of the 

use or benefit of the property by using it for his or 

her own gain or purposes.

B. Example

A federal employee steals a computer belonging to the 

United States government. The employee takes it to a friend 

and asks him if he would like to buy it at a discount. When 

asked about the origin of the computer, the employee admits to 

the friend that it was stolen. The friend decides to purchase the 

computer anyway for his own use. While the federal employee 

is responsible for theft of government property, the friend is 

responsible for receiving stolen property. The friend knowingly 

received the computer; the computer had been stolen from the 

United States government or any agency or department thereof; 
_______________

Theft

187

the friend had knowledge that the computer had been stolen; 

and the friend received the property with the intent to deprive 

the United States of the use of the property by converting it to 

his own use.

As with theft, a defendant accused of receiving stolen 

property under § 641 need not have knowledge that the stolen 

property belonged to the United States government or any 

agency or department thereof, although he does need to know 

that the property was stolen. Knowledge of who actually owned 

the property is a jurisdictional issue, not an element of the 

offense. If the value of the property is over $1,000, the crime is 

a felony.
_______________

Theft

188

NOTES
_______________

Obstruction of Justice

189

Subpart H

Obstruction of Justice

I. INTRODUCTION.................................................................189

II. TITLE 18 U.S.C. § 1503...................................................190

III. TITLE 18 U.S.C. § 1510...................................................191

IV. TITLE 18 U.S.C. § 1512...................................................192

V. TITLE 18 U.S.C. § 1513...................................................195

VI. § 1503 OMNIBUS CLAUSE AND § 1512 ................................196

VII. THE VICTIM AND WITNESS PROTECTION ACT OF 1982............197

*****

I. Introduction

The part of the federal criminal code dealing with 

obstruction of justice covers those statutes that protect the 

integrity of proceedings before the federal judiciary, federal 

executive departments and agencies, and Congress, as well as 

the individuals connected with those proceedings. This area of 

the law saw major revisions as a result of the passage of the 

Victim and Witness Protection Act in 1982. Prior to these 

revisions, the primary focus of the statutes was protection of 

witnesses and parties in ongoing proceedings. Now, the focus is 

on the intent of the defendants.

The statutes provide protection for victims of crime, 

witnesses and informants. Also, there is protection for any 

person who is injured, threatened, intimidated, harassed, or 

retaliated against, on account of his relationship to a victim, 

witness or informant. Property is also protected in many 

situations.
_______________

Obstruction of Justice

190

II. Title 18 U.S.C. § 15031 - Influencing or Injuring 

Officers or Jurors Generally

Congress enacted § 1503 to ensure that judicial 

proceedings would take place in an atmosphere conducive to 

seeking and finding the truth, without fear of intimidation, 

coercion or corruption.

The first part of § 1503 covers tampering with, and

retaliation against jurors and officers of the court. Officers of 

the court include judges, prosecutors, and defense counsel. 

Law enforcement officers are not considered officers of the court 

under § 1503. Specifically, § 1503 is designed to protect grand 

or petit jurors, and officers of the court from being intimidated, 

influenced or impeded, by threat or force, while discharging 

their official duties. It also protects grand or petit jurors from 

retaliation if they are injured on account of any indictment 

passed, or verdict rendered. Officers of the court are protected 

from retaliation if they are injured on account of something they 

did while performing their official duties. The statute protects 

these individuals as well as their property.

Section 1503 also contains an omnibus clause prohibiting 

obstruction of the ―due administration of justice.‖ This clause 

protects persons who participate in federal criminal 

investigations, (e.g., grand juries) or judicial proceedings. The 

omnibus clause is interpreted very broadly and covers a wide 

range of activities that may affect the operation of the federal 

courts. For example, trying to destroy the government‘s 

evidence would obstruct the ―due administration of justice.‖ 

The ―due administration of justice‖ would also be obstructed by 

an attempt to kill a government witness or by an attempt to get 

a witness to retract his testimony while the defendant‘s 

conviction is on appeal. In the event the person obtained a new

trial, the death of a witness or the issue of perjured testimony 

would affect the due administration of justice.

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________

Obstruction of Justice

191

In a prosecution for tampering with a juror or officer of 

the court under § 1503, the government is required to prove (1) 

the existence of a pending judicial proceeding, such as a grand 

jury investigation, a pending criminal case, or an open criminal 

appeal, and (2) that the defendant acted with the specific intent 

to obstruct justice; that is, the defendant was aware of the 

existence of a pending federal judicial proceeding and his 

conduct was intended to obstruct that proceeding.

In a prosecution for retaliating against a juror under § 

1503, the government must prove that the defendant injured 

the juror because of a verdict or indictment assented to by the 

juror, or on account of the person having been a juror. In a 

prosecution for retaliating against an officer of the court under § 

1503, the government must prove that the defendant injured 

the officer of the court because of something he did while in the 

performance of his official duties.

III. Title 18 U.S.C. § 15102 - Obstruction of Criminal 

Investigations

Section 1510 (a) makes it a criminal offense to obstruct, 

delay or prevent the communication of information regarding a 

federal crime to a law enforcement officer (LEO) through 

bribery.

The objective of § 1510 is to protect the flow of 

information to federal criminal investigators before the initiation 

of formal federal judicial proceedings. It is aimed at those who 

try to buy the silence of actual or potential witnesses by bribing 

them.

In any prosecution under § 1510, the government must 

prove that the defendant knew that the intended recipient of the 

information was a federal LEO, and that the defendant acted 

with the specific intent to obstruct, delay or prevent the 

communication of that information.

 

2 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________

Obstruction of Justice

192

The defendant does not need to know that the 

information has already been, or is about to be supplied to a 

federal LEO. Rather, the government is only required to prove 

that the defendant believed that information might be supplied 

to a federal LEO. For example, when an airline captain offers 

money to his crew if they will not reveal to a United States 

Customs search team that there are drugs hidden on board the 

aircraft, a violation of § 1510 has occurred.

The government is not required to show that the person 

with the information actually intended to give it to a federal 

LEO, but only that the defendant believed the person might do 

so in the future. It is not necessary that the defendant know 

the precise content of the information that he is trying to 

prevent from being communicated to a federal LEO. Finally, the 

government does not have to prove that the person with the 

information felt threatened by the defendant‘s attempt to buy 

his silence. The government only has to show that the 

defendant, by bribing the person, tried to prevent the disclosure 

of information to a federal LEO.

There is no requirement that an investigation be 

underway or ongoing at the time when the defendant tries to 

prevent the communication of information to the federal law 

enforcement officer. Actions taken by the defendant, prior to 

the commencement of a formal investigation come within the 

statute if the government can prove the defendant believed that 

the person he sought to bribe had relevant information and 

might give it to a federal LEO.

IV. Title 18 U.S.C. § 15123 - Tampering with a Witness, 

Victim, or an Informant

Section 1512 is designed to protect witnesses, victims, 

and informants before they testify or communicate information 

to a law enforcement officer or federal judge. It prohibits 

conduct that is intended to influence the presentation of 

 

3 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________

Obstruction of Justice

193

evidence in federal proceedings, (e.g. grand jury or criminal 

trials) or the communication of information to federal law 

enforcement officers or federal judges. It applies to all federal 

civil and criminal proceedings as well as to all proceedings 

before Congress, executive departments, and administrative 

agencies. Unlike § 1503 there is no requirement that the 

government prove the existence of a ―pending proceeding‖ at the 

time of the offense. Section 1512 applies to witnesses, victims, 

and informants and includes third parties such as spouses and 

family members. For example, if a person threatens to kill a 

witness‘ child, with the intent to prevent the witness from 

testifying, a violation of § 1512 has occurred.

Section 1512 covers four kinds of prohibited conduct, or 

tampering:

A. Killing, attempting to kill, or using physical force 

against another person with the intent to:

prevent their attendance or testimony in an 

official proceeding, or

prevent the production of documents, or 

other objects in an official proceeding, or

prevent the communication of a federal 

criminal violation to a federal law 

enforcement officer or judge.

B. Intimidating, threatening or misleading another 

person with the intent to:

prevent their attendance or testimony in an 

official proceeding, or

prevent the production of documents or other 

objects in an official proceeding, or

prevent the communication of a federal 

criminal violation to a federal law 

enforcement officer or judge.
_______________

Obstruction of Justice

194

C. Harassing another person that results in hindering, 

delaying, preventing, or dissuading:

their attendance or testimony in an official 

proceeding, or

the communication of a federal criminal 

violation to a federal law enforcement officer 

or judge.

D. Altering, destroying, mutilating or concealing a 

record, document or other object with the intent to 

impair the object‘s integrity or availability for use in 

an official proceeding.

Section 1512 provides protection against a wide variety of 

conduct. It protects against violent tampering such as killing, 

assaulting, or threatening a witness, victim or informant. It 

also protects against more subtle forms of tampering such as 

deliberately using false or misleading statements to cause a 

witness, victim or informant to fail to appear at a proceeding, or 

to destroy or alter evidence. Whenever a defendant makes 

contact with a witness, victim or informant it is important to 

establish the defendant‘s intent. Not all contact made by a 

defendant with a witness, victim or informant is going to 

automatically be considered tampering. If the defendant‘s 

intent is to injure, threaten, mislead or harass the witness, 

victim or informant in regard to his attendance or participation 

in an investigation or proceeding, a violation of § 1512 has 

occurred. However, if a defendant contacts a victim to apologize 

for his actions or to offer restitution without intending to affect 

the victim‘s attendance or testimony in a proceeding, a violation 

of § 1512 has not occurred.

The statute provides for extraterritorial jurisdiction. This 

means that a person can be prosecuted for tampering with a

witness, victim or informant even if the conduct constituting the 

tampering occurs outside the United States.
_______________

Obstruction of Justice

195

V. Title 18 U.S.C. § 15134 - Retaliating Against a 

Witness, Victim or an Informant

Section 1513 is designed to provide protection to 

witnesses, victims and informants, and their property, after 

they have testified in a federal proceeding, or reported 

information to a federal law enforcement officer. Like § 1512 it 

protects not only witnesses, victims and informants, but it also 

covers third parties as well. For example if a person injures a 

witness‘ friend in an effort to retaliate against the witness for 

having testified in a federal proceeding, a violation of § 1513 has 

occurred.

Section 1513 covers three types of prohibited conduct 

that constitute retaliation. 

A. Killing or attempting to kill a witness, victim or 

informant with the intent to retaliate against them 

for:

their attendance or testimony in an official 

federal proceeding, or

the production of a document or other object 

in a federal proceeding, or

the communication of a federal violation to a 

federal law enforcement officer.

B. Causing bodily injury to a witness, victim or 

informant, or damage to their property with the 

intent to retaliate against them for:

their attendance or testimony in an official 

federal proceeding, or

 

4

 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________

Obstruction of Justice

196

the production of a document or other object 

in a federal proceeding, or

the communication of a federal violation to a 

federal law enforcement officer.

C. Taking any action harmful against a witness, victim 

or informant, to include interference with their 

lawful employment or livelihood, with the intent to 

retaliate against them for providing information, 

relating to a federal criminal violation, to a federal 

law enforcement officer.

Section 1513 covers retaliation, attempts to retaliate and 

threats of retaliation against witnesses, victims and informants. 

The government must first prove that either the retaliation, 

attempt to retaliate or threat to retaliate was made against a 

witness, victim or informant who had testified or reported 

information to a federal law enforcement officer. Second the 

government must prove that the defendant acted with the 

specific intent to retaliate against the individual because of his 

testimony, or reporting of information. The defendant need not 

intend to carry out the threat; simply making the threat is 

sufficient.

Like § 1512, § 1513 provides for extraterritorial 

jurisdiction.

VI. § 1503 Omnibus Clause and § 1512

Prior to 1982 a defendant could be charged under the 

omnibus clause of § 1503 for obstructing the due 

administration of justice if he tampered with a witness in 

pending judicial proceedings. The VWPA of 1982 was enacted 

to give victims of crimes and witnesses more protection than 

was presently being afforded to them under the Omnibus 

Clause of § 1503. Specifically, it did not require a pending 

judicial proceeding before a defendant could be charged with 

obstruction of justice for tampering. The VWPA of 1982 created

§ 1512 ―Tampering With A Witness, Victim or Informant.‖ While 
_______________

Obstruction of Justice

197

the VWPA created § 1512 to prosecute those who tampered with 

witnesses, the Omnibus Clause of § 1503 was still available to 

prosecute defendants who obstructed the ―due administration 

of justice‖ by tampering with a witness in a pending judicial 

proceeding. Therefore, a person who tampered with a witness 

in a pending judicial proceeding could potentially be charged 

with obstruction of justice under both § 1512 and § 1503 

(Omnibus Clause).

With the enactment of § 1512 some prosecutors elected to 

use it exclusively for witness tampering prosecutions, while 

some continued to use §1503 only, while some used both § 

1503 and §1512 to charge the person with two criminal offenses 

for the same conduct.

The appellate courts were eventually faced with the 

prospect of determining whether § 1512 was the exclusive 

charge to bring against a defendant for witness tampering, or 

whether §1503 could be used, or if both § 1512 and § 1503 

could be used. A majority of the circuits have held that in 

prosecuting witness tampering cases the government may 

charge the defendant under § 1503, or § 1512, or both. A

minority of the circuits have held that § 1512 is the exclusive 

statute to use when prosecuting a defendant for witness 

tampering.

VII. Victims’ Rights and Justice for All Acts of 2004

Congress enacted The Victim and Witness Protection Act 

of 1982 (VWPA). In the VWPA Congress established a list of 

victims‘ rights and directed the Department of Justice, along 

with other agencies, to make their best efforts to see that crime 

victims were afforded these rights. Congress enacted the VWPA 

as a response to the statistical problem that one of every three 

households in the United States was a victim of crime in some 

manner. Its purpose was to enhance and protect the necessary 

role of victims and witnesses in the federal criminal justice 

process. Congress wanted to ensure that the federal government 

did all that was possible, within the limits of available
_______________

Obstruction of Justice

198

resources, to assist victims and witnesses of crime without 

infringing on the constitutional rights of a defendant.

The VWPA authorized the imposition of restitution to a 

victim in addition to any other sentence imposed on a 

defendant. The government has the burden of proving the 

amount of the victim‘s loss. Every Pre-sentence Investigative 

Report prepared by the U.S. Probation Officer for the judge‘s 

consideration before sentence is imposed must include a Victim 

Impact Statement. While the provision of such information is 

the responsibility of the U.S. Attorney‘s Office, law enforcement 

officers should be expected to be involved in gathering facts for 

inclusion in this report. Although each U.S. Attorney‘s Office 

employs a Victim-Witness Coordinator, it cannot be expected 

that one person can attend to the details of every criminal case 

in the office. Further, the Crime Control Act of 1994 created 

four classes of crimes in which restitution is mandatory as part 

of the sentence. These four classes are for victims of sexual 

abuse, sexual exploitation and other abuses of children, 

telemarketing fraud, and domestic violence.

To give effect to the VWPA, the Attorney General was 

required to develop and implement guidelines consistent with 

the purposes of the Act. All other federal agencies having law 

enforcement functions were required to adopt similar 

guidelines. The Act also required that all law enforcement 

personnel receive training on their responsibilities in carrying 

out the guidelines developed by the Attorney General.

The guidelines required that every office of every 

investigative agency designate one or more persons specifically 

for the purpose of carrying out the requirements of the VWPA. 

All offices are required to keep on file a written description of 

the procedures and materials used to provide assistance to 

victims and witnesses. Although many of the following services 

are the responsibility of the U.S. Attorney, law enforcement 

officers should anticipate being asked to assist in providing this 

information to victims and witnesses.
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In 2004 Congress enacted Victims‘ Rights and Justice for 

All Act (18 U.S.C. § 37715) which expanded and re-codified the 

victims‘ bill of rights, and gave victims standing to enforce those 

rights. The Justice For All Act established a list of victims‘ 

rights and directed the Department of Justice and other 

departments and agencies of the federal government engaged in 

the detection, investigation, or prosecution of crime to make 

their best efforts to see that crime victims were afforded these 

rights.

Pursuant to § 3771(a) crime victims have the following 

rights:

The right to be reasonably protected from the 

accused. This is a pre-existing right in which the 

threat level, risk and resources available are 

analyzed in order to establish a reasonable plan to 

protect the victim.

The right to reasonable, accurate and timely notice 

of any public court proceeding, or any parole 

proceeding, involving the crime or of any release or 

escape of the accused. The Department of Justice 

shall make their best efforts to see that crime 

victims are notified of, and accorded these rights.

The right not to be excluded from any such public 

court proceeding, unless the court, after receiving 

clear and convincing evidence, determines that 

testimony by the victim would be materially altered 

if the victim heard other testimony at the 

proceeding.

The right to be reasonably heard at any public 

proceeding in the district court involving release, 

plea, sentencing, or any parole proceeding.

 

5

 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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The reasonable right to confer with the attorney for 

the Government in the case.

The right to full and timely restitution as provided 

in law.

The right to proceedings free from unreasonable 

delay.

The right to be treated with fairness and with 

respect for the victim‘s dignity and privacy.

Congress also enacted 42 U.S.C. § 106076, which defined 

a list of services that federal agencies have the responsibility to 

provide to crime victims.

 

6 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Subpart I

Federal Fraud Statutes

I. INTRODUCTION.................................................................201

II. MAIL FRAUD - 18 U.S.C. § 1341........................................203

A. The Elements .................................................................... 203

B. Definition of Fraud............................................................ 203

C. Application of the Mail Fraud Statute................................ 203

1. In General.................................................................... 203

2. ―In Furtherance of the Scheme‖ ................................... 204

D. A Sampler of Common Schemes........................................ 205

1. Bribes and Kickbacks – Public Corruption................... 205

2. Bribes and Kickbacks – Private Corruption.................. 205

3. Fraud Against Consumers ........................................... 206

4. Fraud Against Business............................................... 206

5. Fraud Against Government.......................................... 206

6. Private Fraud............................................................... 207

III. WIRE FRAUD - 18 U.S.C. § 1343........................................207

A. The Elements .................................................................... 207

B. Application of the Wire Fraud Statute ............................... 207

IV. THE NATIONAL STOLEN PROPERTY ACT - 18 U.S.C. § 2314....209

A. Paragraph One.................................................................. 209

1. The Elements............................................................... 209

2. Proving the Elements ................................................... 210

B. Paragraph Two.................................................................. 212

1. The Elements............................................................... 212

2. Proving the Elements ................................................... 212

C. Paragraph Three ............................................................... 213

1. The Elements............................................................... 213

2. Proving the Elements ................................................... 213

V. VENUE ............................................................................215

*****

I. Introduction

The concept of ―federalism‖ embodied in our U.S. 

Constitution - independent states relinquishing certain of their
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rights, while maintaining others to form a more workable union 

- helped create the world‘s greatest democracy, but also posed 

significant challenges. In the realm of law enforcement, issues 

arose regarding how to prevent and prosecute crimes spanning 

more than one state. When con artists used the mail, 

transported by pony express, to defraud victims in distant 

states, which state‘s law did they violate and where were they 

properly prosecuted once apprehended? If personal items 

stolen in one state were transported across boundaries for sale 

in another state, which sovereign‘s laws applied and which state 

officials were responsible for the investigation, arrest and 

prosecution of the thieves? As a result, early in our history, a 

suspect‘s flight across state lines for all but the most heinous 

crimes was the most effective means of eluding capture and 

conviction.

As the nation‘s borders expanded and its population 

grew, Congress recognized the increasing need to combat these 

interstate crimes and responded by enacting legislation based 

primarily on its authority under Article I, Section 8 of the 

Constitution to regulate commerce among the several States. 

Consequently, federal investigators and prosecutors now have a 

vast array of federal statutes to combat crimes that cross states 

lines by employing means of interstate transportation and 

communication. In the fraud area, those statutes include 18 

U.S.C. § 1343, Fraud by Wire, Radio, or Television (more 

commonly referred to as the Wire Fraud Statute), and 18 U.S.C. 

§ 2314, Transportation of Stolen Goods, Securities, Moneys, 

Fraudulent State Tax Stamps, or Articles Used in Counterfeiting 

(more commonly known as the Interstate Transport of Stolen 

Property or ―ITSP‖). Congress also looked to its Constitutional 

authority to establish post offices and post roads to enact 18 

U.S.C. § 1341, Frauds and Swindles (the Mail Fraud Statute). 

Together, these three statutes constitute the federal 

government‘s primary weapons in prosecuting fraud schemes 

touching interstate commerce or using the mails.
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II. Mail Fraud - 18 U.S.C. § 13411

A. The Elements

The statute requires proof of the following elements:

Any person who 

Intentionally

Devises a fraudulent scheme and

Uses or causes the mails to be used (postal service 

or private/commercial interstate carrier) 

In furtherance or in support of the scheme

B. Definition of Fraud

Fraud is the intentional presentation of falsehoods as 

truth with the goal of causing someone to part with something 

of value under false pretenses. The words ―to defraud‖ 

commonly refer to wronging one in his property rights by 

dishonest methods or schemes, and usually signify deprivation 

of something of value by trick, deceit, chicane or overreaching. 

C. Application of the Mail Fraud Statute

1. In General

Several essential features of the mail fraud statute are 

worthy of mention. First, each use of the mail or an interstate 

carrier (such as United Parcel Service or Federal Express) in 

furtherance of a fraud scheme constitutes a chargeable count of 

mail fraud. A simple example would be a defendant who used 

the mail to order goods for which he had no intention of paying. 

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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His mailing of the order form would be chargeable as one count 

of mail fraud and the mailing of the goods he ordered by the 

victimized vendor would constitute a second count of mail fraud 

under § 1341. It is well-established that the defendant need not 

intend, nor even know, that the mail was or will be used. In 

fact, he or she may take deliberate actions to avoid using the 

mail and still violate the statute. It is sufficient that the use of 

the mail was reasonably foreseeable. Thus, a defendant who 

hand-delivers his fraudulent claim for insurance proceeds can 

be still be prosecuted under the mail fraud statute if his 

insurance agent then sends the claim by mail to the home office 

for processing. Though the defendant sought to avoid the mail, 

the mailing of his claim by the agent was reasonably 

foreseeable. In addition, a defendant can be charged with a 

mailing which he or she did not personally place in the mail and 

which does not itself contain any false representations. It is 

sufficient that the defendant caused the mail to be used and 

that the mailing was in furtherance of the scheme. Finally, 

unlike the Wire Fraud statute (§ 1343) discussed below, the 

mailings charged in a mail fraud prosecution can be intrastate 

(solely with in one state) as long as the U.S. Mail or an 

interstate carrier is used. Thus, a victim‘s check mailed from 

Manhattan to the defendant in Brooklyn, N.Y., can be charged 

as a mail fraud count.

2. “In Furtherance of the Scheme”

A mailing is chargeable under the mail fraud statute if it 

is made in furtherance of the scheme to defraud. To meet this 

requirement, a use of the mail or an interstate carrier does not 

need to be an ―essential‖ part of the scheme; it need only be 

incident to an essential part of the scheme or a step in the plot. 

Mailings made after the fraudulent scheme has reached fruition 

are not chargeable. Thus, where the defendant used a stolen 

credit card to purchase products and services, the invoices 

mailed to the authorized holder of the credit card seeking 

payment for these items and checks mailed in payment of the 

invoices by the victim occurred after the fraud was completed, 

and could not be charged as mail fraud counts. However, the 

courts have distinguished between mailings after the 
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completion of the fraud, which are not chargeable under 

§ 1341, and ―lulling letters.‖ Lulling letters are mailings 

designed to lull the victims into a false sense of security, 

postpone their ultimate complaint to the authorities, and 

therefore make the apprehension of the defendants less likely 

than if no mailings had taken place. As an example, if an 

investment adviser sold bogus stocks to his clients and 

converted their funds to his own use, he could still be charged 

with subsequent mailings of false statements which indicated 

their accounts had risen in value. Though these mailings are 

made after the victims have already lost their money, they 

effectively deceive the investors as to the true condition of their 

accounts, and allow the scheme to go undetected. The ability to 

charge lulling letters as mail fraud counts enables prosecutors 

to indict cases which otherwise would have been precluded by 

the expiration of the five-year statute of limitations.

D. A Sampler of Common Schemes

Fraud schemes come in all shapes and sizes, limited only 

by the perpetrator‘s creativity. The great benefit of the mail 

fraud statute is its easy adaptability to any type of scheme in 

which the defendant has obtained something of value by 

―conning‖ his or her victim. Described below are a few of the 

―garden variety‖ schemes that have been successfully 

prosecuted utilizing the mail fraud statute. The investigator 

should keep in mind, however, that these are only a sampling of 

the many schemes to which the mail fraud statute can be 

applied.

1. Bribes and Kickbacks – Public Corruption

Where a public official solicits or receives a kickback in 

exchange for official action benefiting certain persons or groups, 

the government may prosecute that public official for mail fraud 

if the mails were used in furtherance of the scheme.

2. Bribes and Kickbacks – Private Corruption

An employee of a business entity who solicits or receives a 
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kickback from entities doing business with the employer 

commits a breach of trust by depriving the employer of an 

honest employee. Any mailing to execute the kickback scheme 

constitutes mail fraud.

3. Fraud Against Consumers

A business is allowed to ―puff‖ or exaggerate the virtues of 

its product, but is not permitted to fabricate non-existent 

qualities; nor may a business offer an item and fail to deliver it 

or substitute another of materially different quality or 

characteristics. Any mailing which assists in the execution or 

completion of such a scheme is chargeable as mail fraud. 

Examples include odometer roll-back schemes (the mailing 

occurs when the false odometer certification is sent in to the 

state); telemarketing fraud (the mailing occurs when the victims 

send the money to obtain the non-existent product); and 

sweepstakes that require people to send money to win or receive 

their prize.

4. Fraud Against Business

Anyone who files a false claim with a business by using 

the mail violates the mail fraud statute. Such schemes include 

false claims for insurance benefits, bad faith refusals to pay for 

goods and services rendered, sales of supplies and equipment of 

inferior quality or not conforming to agreed-upon specifications, 

and false applications for financing.

5. Fraud Against Government

Anyone who files a false claim with the federal, state or 

local government by using the mail violates the mail fraud 

statute. Examples include state or local tax fraud, false claims 

for Veterans Administration, social security, workers 

compensation and other government benefits; false education 

certifications; or false college loan applications.
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6. Private Fraud

Any person who commits a fraud against another person 

and either uses the mail or causes the mail to be used in 

furtherance of the scheme has committed mail fraud. For 

example, a defendant who married a recently-widowed person 

and used the mail in furtherance of a scheme to deplete the 

assets left to that person by the deceased spouse has violated 

the mail fraud statute.

III. Wire Fraud - 18 U.S.C. § 13432

A. The Elements

The statute requires proof of the following elements:

Any person who

Intentionally

Devises a fraudulent scheme and

Uses or causes an interstate wire transmission to 

be used 

In furtherance or in support of the scheme

B. Application of the Wire Fraud Statute

The wire fraud statute prohibits the telephone, television, 

telegraph, and more recently, the internet, from being used in 

interstate commerce to promote a fraud scheme. In applying 

§ 1343, the courts have stated consistently that its elements are 

the same as those of the mail fraud statute. The major 

differences between the wire fraud and mail fraud statutes are 

 

2

 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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the nature of the communication method and that the wire 

fraud statute requires that the signal or wire transmission 

forming the basis of the charge must have crossed state lines. 

Thus, a telephone call placed by the defendant to his next-door 

neighbor which is otherwise in furtherance of his fraud scheme 

will not be chargeable under § 1343 because it was not an 

interstate call. However, that same call made to an out-of-state 

victim would serve as an indictable wire fraud charge. However, 

a cell phone call that connects through a tower in another state, 

would be sufficient to establish the interstate connection, even 

if the phone call was made to a person living next door to the 

person making the call.

As with the mail fraud statute, there is no requirement 

under the wire fraud statute for the defendant himself to place 

the telephone call or send the facsimile message. It is sufficient 

if the use of the telephone, facsimile, computer, television or 

radio was reasonably foreseeable. Federal investigators have 

commonly relied on the wire fraud statute in cases involving the 

wiring of funds through the banking system by fraud victims; 

schemes in which defendants have used the internet to order 

products for which they had no intention of paying; ―pump and 

dump‖ schemes in which defendants have sold stocks for huge 

profits after using the internet to fraudulently tout their value; 

and most popular of all, the ever-present fraudulent 

telemarketing schemes. Like the mail fraud statute, § 1343 is 

extremely versatile and remains a favorite weapon of federal 

prosecutors. In one case, the government successfully 

prosecuted a fertility specialist under the wire fraud statute 

whose fraud victims made interstate telephone calls to schedule 

appointments at his office.

As technology changes and our interstate 

communications system evolves from ―wire‖ to ―broadband‖ and 

other yet to be developed hardware, federal investigators can 

expect to see innovative applications of the wire fraud statute, 

as well as new legislation aimed specifically at combating these 

new mechanisms of fraud. It should be noted that, despite its 

short title as the ―wire fraud‖ statute, § 1343 has already been 

applied to interstate communications effected by telephones 
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other than ―land lines,‖ based on its application to radio 

transmissions.

IV. The National Stolen Property Act - 18 U.S.C. § 23143

The National Stolen Property Act, codified at 18 U.S.C. § 

2314, is commonly referred to as the Interstate Transport of 

Stolen Property or ―ITSP‖. It was originally enacted in 1934 to 

―federalize‖ thefts and frauds that crossed state lines. In 1990, 

ITSP was amended to encompass the transportation of stolen 

goods through foreign commerce.

Section 2314 is comprised of five distinct provisions 

which together proscribe activities involving the transportation 

of certain specified items and persons across state lines and in 

interstate commerce. Each such provision requires its own 

elements of proof and will be considered in order of appearance. 

This course will address only the first three provisions of the 

statute.

A. Paragraph One

1. The Elements

The first paragraph of ITSP prohibits the interstate 

transportation of stolen, converted or fraudulently obtained 

goods. It requires proof of the following elements:

Transportation in interstate or foreign commerce

Of any goods, wares, merchandise, securities or 

money valued at $5,000 or more 

Knowing the same to have been stolen, converted or 

taken by fraud

 

3 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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2. Proving the Elements

(a) Interstate or Foreign Commerce

The property or monies obtained by theft or fraud must 

have been transported or transferred across state lines or in 

foreign commerce. Transportation or transfer of such items 

within a single state does not satisfy the requirements of the 

statute. It is the transport or transfer of the stolen or 

fraudulently obtained property or moneys from one state to 

another or between the United States and a foreign country that 

violates the statute and confers federal jurisdiction over the 

crime. Thus, a thief who steals property in Georgia and then 

transports it to Florida commits a violation of the first 

paragraph of ITSP. If instead he remains in Georgia with the 

proceeds of his theft, the suspect has violated state law, not 

federal law.

(b) Transport, transfer or transmit

The means by which the stolen or fraudulently obtained 

property or money is transported, transferred or transmitted 

across state lines is not material. It is sufficient that the 

defendant transported the item personally or caused the item to 

be transported, transferred or transmitted in interstate or 

foreign commerce. Thus, reliance on a private or commercial 

courier, or use of the U.S. mail, thereby causing the interstate 

transport of the stolen merchandise, satisfies this element of 

the statute. Interstate wire transfers of funds obtained through 

theft or fraud constitute violations of ITSP. The courts have 

consistently held that ITSP can be charged concurrently with 

the mail fraud and wire fraud statutes because they demand 

proof of at least one different element. With regard to foreign 

commerce, ITSP makes it a crime to transport to the United 

States goods stolen in a foreign country, even if they do not 

subsequently travel in interstate commerce once they arrive in 

the United States. Likewise, the transportation or transmission 

to a foreign country of property or moneys obtained by fraud or 

theft in the United States violates ITSP.
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(c) Value of $5,000 or more

The stolen or fraudulently obtained property transported 

in interstate or foreign commerce must be valued at $5,000 or 

more. This requirement prevents the over-extension of federal 

law enforcement resources by restricting their application to 

more substantial frauds and thefts. To determine the 

appropriate measure of value, the courts refer initially to 18 

U.S.C. § 2311, which defines value as face, par, or market 

value, whichever is the greatest. For items with no face or par 

value, the courts have generally defined market value as the 

price a willing buyer would pay a willing seller either at the time 

and the place that the property was stolen or at any time during 

the receipt or concealment of the property. In applying this 

standard, the courts look to the particular facts of each case 

and pose the question: in what type of transaction would the 

person from whom the property was stolen have engaged? If 

the victim was a wholesale merchant, the value for purposes of 

ITSP is the wholesale market price; if the victim was a retail 

merchant, the value of the stolen property is the retail market 

price. Where there is no established market for the stolen item, 

courts have relied on the prices paid among those dealing in the 

stolen property, referring to this as the ―thieves market.‖ Each 

interstate or foreign transport or transfer of an item valued at 

$5,000 or more can be charged as a separate count of ITSP. 

Further, where the shipments [of stolen goods] have enough 

relationship so that they may properly be charged as a single 

offense, their value may be aggregated. The aggregated value 

can be based upon a series of shipments to a particular 

defendant.

(d) Knowledge

To obtain a conviction under ITSP, the government must 

show that the defendant knew that the items he transported or 

caused to be transported in interstate or foreign commerce were 

stolen, embezzled, or obtained by fraud. The government is not 

required to prove that the defendant knew, foresaw, or intended 

that the stolen items were or would be transported in interstate 

or foreign commerce. The courts have generally held that the 
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jury may infer that a person in possession of recently stolen 

property knew the property was stolen, unless such possession 

is satisfactorily explained.

B. Paragraph Two

1. The Elements

The second paragraph of ITSP prohibits ―travel fraud‖ -

causing potential victims of a fraudulent scheme to travel in 

interstate or foreign commerce in furtherance of or to conceal 

the scheme. Thus, a con artist who misleads his victim in a 

face-to-face encounter can still be charged with ITSP if the 

victim crossed state lines or traveled into or out of the United 

States to investigate or learn of the fraudulent offer. The 

elements of this second paragraph are:

Transportation of or inducement of a person to 

travel in interstate or foreign commerce

For the purpose of defrauding that person of money 

or property valued at $5000 or more.

2. Proving the Elements

(a) Transport or induce to travel in interstate or 

foreign commerce

This element of the second paragraph of ITSP is met if a 

potential or actual victim of a fraud scheme travels in interstate 

or foreign commerce in connection with the scheme. It is not 

necessary to prove the victim actually parted with their money 

or property; instead it is sufficient if the defendant induced 

them to travel in an effort to defraud them. Likewise, the 

government need not prove that the money or property lost by 

the victim to the defendant traveled in interstate or foreign 

commerce. Thus, where a con artist induces his next-door 

neighbor to travel out of state to view certain real estate parcels 

offered in a fraudulent scheme, he can be charged with ITSP 

whether or not the neighbor invests. Further, he can be 
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charged with ITSP based on the interstate travel of the neighbor 

even if the neighbor does not invest until he returns home and 

hands his funds to the con artist.

(b) To Defraud a person of $5000 or More

As with the Mail Fraud and Wire Fraud statutes, the 

government must prove the defendant‘s intent to defraud. See 

the prior discussion concerning that element under the Mail 

Fraud statute above. As with the first paragraph of ITSP, travel 

fraud under the second paragraph of ITSP requires that the 

suspect defrauded or endeavored to defraud the victim of 

$5000 or more.

C. Paragraph Three

1. The Elements

The third paragraph of ITSP prohibits the transportation 

of falsely made, forged, altered or counterfeited securities or tax 

stamps in interstate and foreign commerce. It requires proof of 

the following elements:

Transport in interstate or foreign commerce

Falsely made, forged, altered or counterfeited 

securities or tax stamps

With unlawful or fraudulent intent

Knowing the securities or tax stamps to be forged, 

altered or counterfeited.

2. Proving the Elements

(a) Securities

Securities include stock certificates, bonds, money 

orders, motor vehicle titles, and checks. While the courts have 

included checks within the definition, they have found the 
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language ―falsely made, forged, altered or counterfeited 

securities‖ does not include checks with forged endorsements. 

It does include checks signed by a maker using a fictitious 

name, checks drawn on an account opened with a fictitious 

name, checks bearing a forged signature of an authorized 

signatory to the account, checks drawn on closed accounts, and 

checks bearing the actual signature of a person not authorized 

to act as a signatory on the account. (Note that checks with 

forged endorsements that are stolen or obtained by fraud and 

transported across state lines could be charged under 

paragraph one of ITSP if they meet the $5000 valuation 

requirement).

Airline tickets, credit cards, credit card slips, and leases 

do not fall within the definition of ―securities‖ under this third 

paragraph. In addition, the final paragraph of Section 2314 

states that the statute‘s provisions do not apply to counterfeit 

obligations and securities of the United States or any foreign 

government, nor falsely made or counterfeit foreign currency. 

The primary reason for this exclusion of United States 

obligations and securities lies in the fact that ―trafficking in 

counterfeits, forgeries and spurious representations of [these 

instruments] is made criminal elsewhere in the United States 

Code by anti-counterfeiting statutes‖, such as 18 U.S.C. § 471.

(b) Interstate or Foreign Commerce

Each act of transporting falsely made, forged or 

counterfeited securities in interstate or foreign commerce 

constitutes a single offense under ITSP. Thus, a defendant who 

transports several forged checks or securities at one time may 

be charged with only one count of ITSP. Alternatively, the 

government may charge as separate counts of ITSP each 

negotiated check that enters interstate commerce to be 

processed through the banking system. Thus, a defendant who 

makes payment with falsely made or forged checks drawn on an 

out-of-state bank can be charged with ITSP based on each 

negotiation and subsequent interstate transfer of the check in 

the bank collection process.
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(c) Fraudulent Intent

The government must establish that the defendant 

transported the forged or counterfeit check or security with 

unlawful or fraudulent intent. The requisite intent may be 

established through the defendant‘s own statements and/or his 

participation in the scheme to transport or negotiate the 

securities.

(d) Knowledge of Forgery or Counterfeit

To sustain a conviction under this paragraph of ITSP, the 

government must prove the defendant knew the security 

transported in interstate or foreign commerce was forged or 

counterfeited at the time of its transportation. It is not 

necessary to prove in the case of a forged security that the 

defendant forged the signature himself; the government need 

only show that he knew the instruments he cashed had been 

forged.

V. Venue

Venue for violations of the Mail Fraud statute, Wire Fraud 

statute and ITSP is governed by 18 U.S.C. § 3237, which 

provides in pertinent part: ―Any offense involving the use of the 

mails, transportation in interstate or foreign commerce, or the 

importation of an object or person into the United States is a 

continuing offense and, . . . may be inquired of and prosecuted 

in any district from, through, or into which such commerce, 

mail matter, or imported object or person moves.‖

Consequently, mail fraud cases may be indicted in the district 

where the subject mail matter is placed in the mail, any district 

through which it travels, or the district in which it is received by 

the addressee; wire fraud cases may be brought in the districts 

from which the transmission was sent, through which it passed, 

and in which it was received; and ITSP may be charged in the 

districts from which the stolen items or victims originated, 

through which they traveled, and in which they completed their 

journey. Generally, however, it is the policy of the Department 

of Justice to bring charges under these three statutes at their 
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beginning or ending points, rather than in the districts through 

which the mail, transmission, victims or property merely 

passed.
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Chapter Seven

Electronic Law and Evidence

I. INTRODUCTION.................................................................218

II. HISTORY OF TITLE III .......................................................219

III. WHEN A TITLE III COURT ORDER IS REQUIRED......................220

IV. HOW TO OBTAIN A TITLE III COURT ORDER ..........................222

A. Who Can Apply? ............................................................... 222

B. Enumerated Crimes Only.................................................. 222

1. Wire or Oral Communications...................................... 223

2. Electronic Communications ......................................... 223

C. Authorization to Apply ...................................................... 223

1. Wire or Oral Communications...................................... 223

2. Electronic Communications ......................................... 223

D. Contents of the Application............................................... 224

1. Identity ........................................................................ 224

2. Statement of Facts and Circumstances........................ 224

3. Necessity Statement..................................................... 225

4. Time Period.................................................................. 225

5. Statement Regarding Previous Applications ................. 226

6. Minimization Statement............................................... 226

7. Request for Covert Entry.............................................. 227

E. Who may Issue?................................................................ 227

V. INTERCEPTIONS EXEMPTED FROM TITLE III ..........................228

A. No Reasonable Expectation of Privacy ............................... 228

B. Consensual Monitoring ..................................................... 229

1. Written Approval Required........................................... 230

2. Prior AUSA Advice........................................................ 230

C. Special Limitations on Consensual Monitoring.................. 230

1. Device Located on the Person....................................... 231

2. Device in a Fixed Location ........................................... 231

D. Electronic Communications Exempted from Title III.......... 231

VI. ELECTRONIC TRACKING DEVICES ........................................232

A. Installation ....................................................................... 232

1. Vehicles ....................................................................... 233

2. Government Property................................................... 233

B. Monitoring of an Electronic Tracking Device ..................... 234

1. In Areas with No REP................................................... 234

2. In Areas with REP........................................................ 234

C. Warrants to Install and Monitor – Rule 41 ....................... 235
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VII. PEN REGISTERS AND TRAP AND TRACE DEVICES ....................236

A. Definitions ........................................................................ 236

1. Pen Registers ............................................................... 236

2. Trap and Trace Devices................................................ 237

B. Regulations....................................................................... 237

C. Obtaining a Court Order ................................................... 237

VIII. VIDEO-ONLY SURVEILLANCE WHERE REP EXISTS...................238

IX. STORED ELECTRONIC COMMUNICATIONS ..............................240

A. Classifying the Information Sought ................................... 240

1. Basic Subscriber Information ...................................... 240

2. Transactional Records ................................................. 241

3. Contents...................................................................... 241

B. Methods for Obtaining ...................................................... 242

1. Basic Subscriber Information ...................................... 242

2. Transactional Records ................................................. 242

3. Contents...................................................................... 243

C. Preservation Orders .......................................................... 245

D. Multi-Jurisdiction Warrants.............................................. 246

*****

I. Introduction

Electronic surveillance methods have taken on an 

increased importance because criminals are making more use 

of technology. This chapter gives you a basic overview of federal 

laws to (1) intercept wire, oral and electronic communications; 

(2) track the movements of vehicles and other objects; and (3) 

trace telephone calls and electronic communications. This 

chapter will also address using video-only surveillance, and the 

federal requirements governing access to stored electronic 

communications held by network service providers.

This chapter will not cover state law regarding electronic 

surveillance. While state and local law enforcement must 

follow, at a minimum, the federal laws regarding electronic 

surveillance, each state is free to make its laws more restrictive 

than federal law. This chapter will also not cover the Foreign 

Intelligence Surveillance Act (FISA) which addresses national 

security investigations.
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The statutes pertaining to the laws of electronic 

surveillance are codified at 18 U.S.C. § 2510, et seq. In 1968 

when Congress passed the ―Omnibus Crime Control and Safe 

Streets Act,‖ these provisions were in Title III, and this body of 

law is still referred to as ―Title III‖ (even though they are 

currently located in another Title.)

II. A Little History on Title III

Before 1934, no federal statute regulated wiretapping. In 

1928, the Supreme Court decided in Olmstead v. U.S., 277 U.S. 

438 (1928), that agents who tapped a suspect‘s telephone lines 

from a location off the suspect‘s premises, without his consent 

and without a search warrant, did not violate the Fourth 

Amendment because the Fourth Amendment protected property 

rights, not privacy rights. Because the agents did not intrude 

onto the suspect‘s property when tapping the telephone line, 

there was no Fourth Amendment ―search.‖ The Court noted 

that Congress could regulate wiretapping if it so desired.

Six years after Olmstead, Congress passed the Federal 

Communications Act of 1934 which prohibited wiretapping by 

any person, including federal law enforcement officers.

Almost 40 years after Olmstead the Supreme Court 

decided the landmark case of Katz v. U.S.1 The Fourth 

Amendment still protects property rights, but Katz changed the 

Fourth Amendment analysis by adding a focus on individual 

―privacy‖ rights. In Katz, the defendant used a public telephone 

located in a booth on a public street to transmit wagering 

information across state lines. To monitor these conversations, 

federal law enforcement officers placed a sensitive microphone 

on top of the telephone booth. Because they had not intruded 

onto the defendant‘s property in installing and utilizing this 

device, the officers had complied with Olmstead. But, the 

Supreme Court held that whenever the government intrudes 

 

1 Cases named in this chapter without a case cite are briefed in the 

companion book, Legal Division Reference Book.
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upon an individual‘s reasonable expectation of privacy, the 

Fourth Amendment applies.

In response to the Supreme Court‘s decision in Katz, 

Congress passed Title III to regulate the manner in which law 

enforcement officers may lawfully conduct real-time 

interceptions of wire and oral communications. The purpose of 

Title III was twofold: first, to protect the privacy of wire and oral 

communications; and second, to set forth, on a uniform basis, 

the circumstances and conditions under which the interception 

of wire and oral communications may be authorized. Under 

Title III, you may use evidence obtained through electronic 

surveillance if you first obtain a court order authorized under 

the statute.

When Congress enacted Title III in 1968, it did not 

consider many of the technologies that are now commonplace. 

To update Title III and extend privacy protections to modern, 

more advanced technologies, Congress passed the Electronic 

Communications Privacy Act of 1986 (ECPA). With passage of 

the ECPA, Congress added a third category of communications, 

―electronic communications,‖ whose interception would now 

also be regulated by Title III. Where Title III had been limited to 

voice communications, whether face-to-face or over a wire, the 

ECPA extended Title III to include non-oral or wire 

communications that occur over computers, digital-display 

pagers, facsimile machines, and other electronic devices. 

(United States Attorney‘s Manual, Chapter 9-7.100.)

III. When is a Title III Court Order Required? 

You must meet stringent requirements to obtain a Title III 

court order to conduct non-consensual intercepts of wire, oral, 

and electronic communications. In a nutshell, it is unlawful to 

intercept wire or electronic communications without a Title III 

order. It is unlawful to use a device to intercept oral 

communications in which a person has a reasonable 

expectation of privacy. To apply these principles, you must 

correctly understand the definitions.
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Title III defines oral communications as those spoken by a 

person who exhibits an expectation of privacy when speaking.

A wire communication is the transfer of the human voice 

by aid of wire, cable, or ―other like connection‖ even if there is 

no reasonable expectation of privacy.

An electronic communication is the transfer of data other 

than that which would be a wire or oral communication even if 

there is no expectation of privacy. An email or the data that 

composes a facsimile transmission is an electronic 

communication. If the transmission is the digitized human voice 

sent over a network or phone line, it is a wire – and not 

electronic – communication.

Unlike oral communications, the definitions of electronic 

and wire communications do not require that someone have an 

expectation of privacy in the communication. The omission of 

this component from the definitions was intentional as 

Congress realized that by their nature, wire and electronic 

communications had to be revealed to third parties to transmit 

them, yet Congress still intended to afford these 

communications some protection from unwarranted intrusions.

The term ―interception‖ has been interpreted to mean a 

real time interception. Loosely speaking, there is no interception 

unless the data, electrons, or sound waves are moving at the 

time of interception. As to oral communications, there is no 

interception unless it is done with a ―device.‖ A device is 

anything other than the human ear. A good general rule is that 

if you have the right to be where you are and can hear 

something with your unaided ear,2 there is no Title III violation.

If there is consent of one or more parties to the 

communication, then a Title III Court order is not required.

 

2 The statute excludes, from the definition of ―device,‖ hearing aids set to 

correct subnormal hearing to normal.
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When is a T III Order Required ?

Oral communications

Real time interception.

Of an REP communication

With a device

(No REP, not Title III)

Wire and electronic 

communications

Real time interception.

Of a communication.

(Doesn‘t matter whether there 

is REP)

A device is other than the human ear.

Consent of one party, no Title III required.

IV. How to Obtain a Title III Court Order

This section addresses the requirements to obtain a Title 

III court order if one is required.

A. Who Can Apply for a Title III Court Order?

Any ―investigative or law enforcement officer‖ may apply 

for a Title III court order. This phrase is defined as ―any officer 

of the United States ... who is empowered by law to conduct 

investigations of, or to make arrests for, offenses enumerated in 

this chapter, and any attorney authorized by law to prosecute 

or participate in the prosecution of such offenses.‖ 18 U.S.C. § 

2510(7).

B. Enumerated Crimes Only

You may submit an application for a Title III court order 

only when investigating certain crimes that are specifically 

listed in 18 U.S.C. § 2516. The type of interception being 

requested (e.g., wire, oral, or electronic) will play a role in this 

analysis.
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1. Wire or Oral Communications

To intercept wire or oral communications, you must have 

probable cause to believe that one of the predicate offenses 

specifically listed in 18 U.S.C. § 2516(1) is being committed. As 

a practical matter most significant felony crimes are listed.

2. Electronic Communications

When you seek to intercept electronic communications, 

you must have probable cause to believe that any federal felony 

is being committed. 18 U.S.C. § 2516(3).

C. Authorization to Apply for a Title III Court Order

Before you may submit an application for a Title III court 

order to the appropriate judge, the application must first be 

reviewed and approved by an appropriate Department of Justice 

official. Who must first review the application depends, again, 

on the type of communication being intercepted.

1. Wire or Oral Communications

Under 18 U.S.C. § 2516(1), a high-ranking member of the 

Department of Justice must first review and authorize any 

application requesting permission to intercept wire or oral 

communications without the consent of one or more parties to 

the conversation. This requirement is to ensure that this 

powerful investigative tool is used with restraint and only where 

the circumstances warrant it.

2. Electronic Communications

Under 18 U.S.C. § 2516(3), any government attorney may 

authorize a Title III application to intercept electronic 

communications in the investigation of a federal felony. 

However, the Department of Justice has imposed limitations on 

this authority. Under DOJ policy, AUSAs may approve 

applications to seek a Title III for digital display pagers, but the 

policy requires Department of Justice approval before officers 
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can apply to a judge to intercept other electronic 

communications over any other device, such as computers and 

facsimile machines.

D. Contents of the Application

Under 18 U.S.C. § 2518, each application for a Title III 

court order must contain specific information before a court can 

authorize the interception. In addition to being in writing, 

under oath, and signed by either the United States Attorney or 

an Assistant United States Attorney, the application must 

contain the following:

1. Identity

The application must contain the identity of the 

investigative or law enforcement officer making the application, 

as well as the DOJ official who authorized it. 18 U.S.C. § 

2518(1)(a).

2. Statement of Facts and Circumstances

Title 18 U.S.C. § 2518(1)(b) requires a full and complete 

statement of the facts and circumstances relied upon to justify 

the belief that a Title III court order should be issued. This 

statement must include the following information:

Details about the particular offense that has been, 

is being, or is about to be committed;

A particular description of the nature and location 

of the facilities from which or the place where the 

communication is to be intercepted;

A particular description of the type of 

communications sought to be intercepted; and

The identity of the individuals, if known, 

committing the offense and whose communications 

are to be intercepted. The Supreme Court requires 
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that a Title III application name all individuals who 

the government has probable cause to believe are 

engaged in the criminal activity under investigation 

and whose conversations the government expects to 

intercept. Additionally, it is the policy of the 

Department of Justice to ―name as potential 

subjects all persons whose involvement in the 

alleged offenses is indicated.‖ (United States 

Attorney‘s Manual, Chapter 9, Criminal Resources 

Manual at 28.)

3. Necessity Statement

Under 18 U.S.C. § 2518(1)(c) , a Title III application must 

contain a full and complete statement as to whether other 

investigative procedures have been tried and failed or why they 

reasonably appear to be unlikely to succeed if tried or would be 

too dangerous. This section is sometimes referred to as the 

―necessity‖ requirement, and simply means that the 

interception must be shown to be necessary to the investigation 

of the case. This section was ―designed to assure wiretapping is 

not resorted to in situations where traditional investigative 

techniques would suffice to expose the crime.‖ U.S. v. Kahn.

4. Time Period

The application must contain a statement of the period of 

time for which the interception is to be maintained. 18 U.S.C. § 

2518(1)(d). Under 18 U.S.C. § 2518(5), Title III court orders are 

valid only for the period necessary to achieve the objective of the 

authorization, but in no event longer than 30 days. This 30-day 

period begins on the earlier of either (1) the day on which the 

investigative or law enforcement officer begins to conduct an 

interception under the order, or (2) ten days after the order is 

issued. This 10-day period is intended primarily for the 

installation of whatever device will be used to conduct the 

interceptions. Extensions of the 30-day period are permissible, 

but only after again meeting the requirements of the initial Title 

III application. Further, where the Title III application is for an 

extension of a previously approved order, the application ―must 
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include a statement setting forth the results thus far obtained 

from the interception, or a reasonable explanation of the failure 

to obtain such results.‖ 18 U.S.C. § 2518(1)(f).

5. Statement Regarding Previous Applications

Under 18 U.S.C. § 2518(1)(e), a Title III application must 

also contain a full and complete statement of the facts 

surrounding all previous Title III applications known to the 

individual authorizing and making the application that involved 

any of the same persons, facilities, or places specified in the 

application, and the action taken by the judge on each of these 

previous applications.

6. Minimization Statement

A Title III application should also contain a statement 

that the surveillance, if approved, will be ―conducted in such a 

way as to minimize the interception of communications not 

otherwise subject to interception.‖ 18 U.S.C. § 2518(5). In 

determining compliance with this requirement, courts look to 

the ―totality of the circumstances‖ to see if the minimization 

effort was reasonable. Among the factors the courts have 

considered in making this judgment are: (1) the nature and 

complexity of the suspected crimes; (2) the number of target 

individuals; (3) the ambiguity of the intercepted conversations; 

(4) the thoroughness of the government precautions to bring 

about minimization; and (5) the degree of judicial supervision 

over the surveillance practices. Where the government fails to 

adequately minimize the electronic surveillance, any evidence 

obtained from those impermissible intercepts will be 

suppressed. However, errors in minimizing one portion of an 

interception do not automatically result in the suppression of 

all the evidence obtained through the use of electronic 

surveillance. Instead, suppression of all electronic surveillance 

is proper only where the defendant demonstrates that the entire 

surveillance was tainted by the impermissible intercepts.
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7. Request for Covert Entry

The Department of Justice requires that Title III 

applications specifically contain a request for permission to 

surreptitiously enter to install, maintain, and remove electronic 

surveillance devices. (United States Attorney‘s Manual, Chapter 

9, Criminal Resources Manual at 28.)3

E. Who may Issue a Title III Court Order?

A Title III order can be issued only by a United States 

District Court Judge or a United States Circuit Court of Appeals 

Judge. 18 U.S.C. § 2510(9). A United States Magistrate Judge 

may not issue a Title III order.

Title III Court Order Application Authorization and 

Approval Process

Oral and wire 

communications

Electronic 

communications 

(other than digital 

display pagers)

Digital display 

pagers

Agent with Probable 

Cause

Same Same

An offense listed in 18 

U.S.C. § 2516(1)

Any federal felony Any federal 

felony

DOJ approval of 

application

DOJ approval of 

application

AUSA can 

approve 

application

District or Appellate 

Court judge can issue

(Not a magistrate)

Same Same

 

3

The Supreme Court has held that a Title III application does not have to contain a 

specific request for permission to covertly enter a location to install, maintain, and 

remove surveillance devices because ―[t]hose considering the surveillance legislation 

(i.e., Congress) understood that, by authorizing electronic interception of oral 

communications in addition to wire communications, they were necessarily 

authorizing surreptitious entries.‖ Dalia v. U.S. Notwithstanding this ruling, officers 

must include a request for covert entry under DOJ policy.
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V. Interceptions Exempted from Title III

Not all interceptions of wire, oral, or electronic 

communications require a Title III court order. Two of the most 

important exemptions to the requirements of Title III involve 

situations where (1) no reasonable expectation of privacy exists 

in an oral communication, and (2) one of the parties to the 

conversation has given consent to intercept the communication 

(sometimes referred to as ―consensual monitoring‖). 

A. No Reasonable Expectation of Privacy

In Katz, the Supreme Court established the standard for 

determining whether a reasonable expectation of privacy exists. 

The test is two-pronged: first, the individual must have 

exhibited an actual (subjective) expectation of privacy. Second, 

that expectation must be one that society is prepared to 

recognize as objectively reasonable. If either prong of this test 

is not met, then no reasonable expectation of privacy exists. 18 

U.S.C. § 2510(2) defines an ―oral communication‖ as one 

―uttered by a person exhibiting an expectation of privacy that 

such communication is not subject to interception under 

circumstances justifying such expectation....‖ The legislative 

history of Title III indicates that Congress intended this 

definition to parallel the Katz ―reasonable expectation of 

privacy‖ test.

As a general rule, there is no expectation of privacy in a 

conversation that can be overheard from a location where the 

interceptor has a legal right to be and where the interceptor 

uses only the unaided ear. As Katz stated: ―[C]onversations in 

the open would not be protected against being overheard, for 

the expectation of privacy under the circumstances would be 

unreasonable.‖ Accordingly, if two individuals had a 

conversation in a public restaurant, and spoke loudly enough 

for others in the restaurant to overhear their conversation, no 

reasonable expectation of privacy would exist.

Finally, even though a speaker may subjectively intend 

for the conversation to remain private, a speaker has no 
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reasonable expectation that the person to whom he is speaking 

will not later reveal the contents of the conversation. There is 

only a legitimate expectation of privacy as long as both parties 

expect it. If, however, one party to the conversation decides to 

reveal the contents of the conversation, the other party cannot 

successfully claim any ―right to privacy‖ that would prevent this 

revelation. So, if an individual engages in conversation with 

another, the individual does so at his own peril. An expectation 

of privacy does not attach to a ―wrongdoer‘s misplaced belief 

that a person to whom he voluntarily confides his wrongdoing 

will not reveal it. The risk of being overheard by an 

eavesdropper or betrayed by an informer or deceived as to the 

identity of one with whom one deals is probably inherent in the 

conditions of human society.‖ Hoffa v. U.S.

As stated earlier, the definitions of wire and electronic 

communications do not contain a requirement that a 

reasonable expectation of privacy exist. ―Therefore, the nonconsensual interception of wire communications violates 18 

U.S.C. § 2511, regardless of the communicating parties‘ 

expectation of privacy, unless the interceptor complies with the 

court authorization procedures of Title III.‖ United States 

Attorney‘s Manual, Chapter 9-7.301.

B. Consensual Monitoring

Title 18 U.S.C. § 2511(2)(c) ―permits government agents, 

acting with the consent of a party to a communication, to 

engage in warrantless interceptions of telephone 

communications, as well as oral and electronic 

communications.‖ (United States Attorney‘s Manual, Chapter 

9-7.301.) The consent of a single party to the conversation is 

required, and this consent must be given voluntarily, without 

physical coercion or duress. The Attorney General established 

guidelines for the investigative use of consensual monitoring by 

law enforcement agencies within the Executive Branch. These 

guidelines are enumerated in the United States Attorney‘s 

Manual, Chapter 9-7.302. The following is a general summary 

of those guidelines. You must become familiar, however, with 

the particular requirements of your agency regarding this issue.
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1. Written Approval Required in Certain Cases

In certain sensitive or high-visibility cases, the 

Department of Justice requires written approval before an oral 

communication can be monitored without the consent of all 

parties to the communication. This requirement would apply, 

for example, when the monitoring relates to the investigation of 

a Congressman, Federal judge, Governor or Lieutenant 

Governor of a State or Territory, etc.

2. Prior AUSA Advice to Monitor Oral 

Conversations

Current Department of Justice policies require that, prior 

to approval for consensual monitoring by the head of a 

department or agency or his or her designee, a designated 

Department of Justice attorney must provide ―advice‖ that the 

monitoring is lawful. This policy applies only to face-to-face 

monitoring; no Assistant United States Attorney contact, 

consent, advice, or approval is required to consensually monitor 

telephone or radio communications.

C. Special Limitations on the Use of Consensual

Monitoring

When conducting a consensual monitoring, questions 

often arise regarding where the monitoring device may be 

located, as well as when the device may be monitored. Some 

general comments are outlined in the United States Attorney‘s 

Manual:

When a communicating party consents to the 

monitoring of his or her oral communications, 

the monitoring device may be concealed on his 

or her person, in personal effects, or in a fixed 

location. When engaging in consensual 

monitoring, the law enforcement agency involved 

must ensure that the consenting party will be 

present at all times when the device is operating.

United States Attorney‘s Manual, Chapter 9-

7.302.
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1. Device Located on the Person

You may place the monitoring device on the consenting 

person. If the monitoring device is so placed, the party (be it an 

undercover agent or confidential informant) may record any 

conversations he has with the suspect. 

2. Device in a Fixed Location

The monitoring device does not have to be on the 

consenting person. In many instances, it may be necessary to 

place the device in a specified location (e.g., a hotel room where 

a confidential informant and the suspect are to meet). When 

the device is placed in a fixed location, two aspects of the 

installation and monitoring must be considered. First, 

depending on the circumstances, you may need to obtain a 

warrant for the installation of the device. When a confidential 

informant rents a hotel room and consents to having the device 

placed in the room, no warrant would be required for the 

installation. Second, you may not even temporarily monitor the 

device when the consenting party is absent.

D. Electronic Communications Exempted from Title III

Though ECPA extended Title III protections to ―electronic 

communications,‖ certain types of communications were 

specifically excluded from this protection. Accordingly, a Title 

III court order is not required to intercept the following types of 

electronic communications:

Tone-Only Pagers. 18 U.S.C. § 2510(12)(B).

Tracking Devices, Beepers and Transponders. 18 

U.S.C. § 2510 (12)(C). Tracking devices are defined 

in 18 U.S.C. § 3117 and include GPS devices.

Video-Only Surveillance. The use of video-only 

surveillance is not regulated by Title III, but is 

regulated by the Fourth Amendment. 
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General Public Communications. General public 

communications that are easily received by the 

public, such as AM/FM radio station broadcasts, 

and citizen band radio transmissions. 

VI. Electronic Tracking Devices

Title 18 U.S.C. § 3117 discusses the use of ―electronic or 

mechanical device[s] which permit the tracking of the movement 

of a person or object.‖ Electronic tracking devices serve an 

important law enforcement function by allowing you to track 

and monitor the movements of suspects or objects from a 

distance, thereby reducing the possibility of detection. Three of 

the most commonly used tracking devices are ―beepers,‖ 

―transponders,‖ and GPS devices. A ―beeper‖ is a radio 

transmitter which emits periodic signals that can be picked up 

by radio receiver. U.S. v. Knotts. Similar to a beeper in many 

respects, a ―transponder‖ is most often used to track the 

location of aircraft.

The Fourth Amendment, not Title III, regulates the 

installation and monitoring of electronic tracking devices. Two 

separate questions must be asked to determine whether the use 

of electronic tracking device is lawful: first, did the installation

of the electronic tracking device comply with the Fourth 

Amendment? Second, did the monitoring of the electronic 

tracking device comply with the Fourth Amendment?

A. Installation of an Electronic Tracking Device

In deciding whether an electronic tracking device was 

legally installed, the courts utilize a traditional Fourth 

Amendment analysis focusing on whether installation of the 

device required intrusion into an area where an individual has a 

reasonable expectation of privacy. If so, then the Fourth 

Amendment has been implicated because a ―search‖ was 

conducted. If not, then no ―search‖ occurred, and the Fourth

Amendment is inapplicable. Most commonly, questions 

regarding the legality of installing electronic tracking devices
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concern installation of the device into or on vehicles, and into or 

on government property.

1. Vehicles

When installation of the tracking device requires some 

form of physical intrusion into the vehicle (i.e., under the hood 

or in the interior) or connecting to the wiring of the vehicle, 

courts have found that this action constitutes a ―search‖ 

requiring either a warrant or an exception to the warrant 

requirement to satisfy the Fourth Amendment. Similarly, if 

installation requires physically going onto the curtilage of a 

residence or into a garage, the Fourth Amendment requires a 

search warrant or an exception to the warrant requirement.

However, when an electronic tracking device is installed 

onto the outside of a vehicle without intruding into vehicle‘s 

interior or the wiring, a warrant is not required to install the 

device because no intrusion into REP has taken place.4

2. Government Property

An issue that often arises in tracking cases involves the 

installation of the device into or on government property that is 

later transferred to an unsuspecting target. This issue was 

addressed by the Supreme Court in U.S. v. Karo. The Court 

held that the installation of a tracking device into or on 

government property that is later transferred to an unknowing 

suspect does not violate the Fourth Amendment. First, when 

the device is placed into or on the government property, the 

suspect does not have any legitimate expectation of privacy in 

the property. Second, the transfer to the defendant does not 

amount to a ―seizure‖ of the defendant‘s property. 

 

4 Some district courts, however, have questioned this rule. One court held 

that while the installation of a tracking device on the exterior of a vehicle is 

not a ―search,‖ reasonable suspicion is still required for the installation. 

Another court found that the installation of a tracking device on the exterior 

of a vehicle constituted a ―search,‖ but the warrantless installation is lawful

so long as the officers installing the device had probable cause. 
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B. Monitoring of an Electronic Tracking Device

Whether there are REP implications in installing and 

monitoring the device are separate implications, and must be 

addressed and resolved separately. If a reasonable expectation 

of privacy is implicated in either the installation or the 

monitoring, a warrant (or exception such as consent) is 

required.

As with the installation of an electronic tracking device, 

the legality of monitoring the device depends on whether the 

object to which the device is attached is located in an area 

where there is a reasonable expectation of privacy.

1. Monitoring in Areas With No REP

When an electronic tracking device is located in an area 

where no there is no reasonable expectation of privacy, the 

Fourth Amendment is not implicated in the monitoring. For 

example, if a device is lawfully installed onto the exterior of a 

vehicle, you may monitor the device while the vehicle is 

traveling on public streets and highways. In these cases, a 

defendant‘s movements are open to visual surveillance by 

anyone who wishes to look, including the police. For this 

reason, a defendant has no reasonable expectation that his 

movements on a public thoroughfare will not be observed. U.S. 

v. Knotts.

2. Monitoring in Areas With REP

In contrast, when an electronic tracking device is located 

in an area not open to visual surveillance and where a 

reasonable expectation of privacy exists, such as inside a home, 

the Fourth Amendment is implicated in the monitoring of the 

device and a warrant (or consent) is required.

In these types of cases, the monitoring of the device 

reveals aspects of the home that could not be observed through 

traditional visual surveillance. For example, while you may 

observe the object to which the beeper is attached enter a home, 
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the later monitoring of the device in the home not only verifies 

your observations, but also establishes that the object remains 

on the premises, a fact not verifiable by visual surveillance. 

Because it is often difficult to determine where an object 

containing an electronic tracking device will ultimately come to 

rest, and since it may become critical to monitor the device to 

determine that it is actually located in a place not open to visual 

surveillance, the Supreme Court has stated that warrants for 

the installation and monitoring of an electronic tracking device 

are desirable. U.S. v. Karo. 

C. Warrants to Install and Monitor Tracking Devices –

Rule 41

Rule 415 of the Federal Rules of Criminal Procedure 

provides the process to obtain the warrant when a warrant is 

required to install or monitor a tracking device. (This Rule is 

reprinted in its entirety in the supplemental materials.)

Generally, Rule 41 provides the following with respect to 

tracking warrants:

A magistrate judge in the district where the device 

will be installed may issue a warrant to install a

tracking device. The issuing magistrate judge may 

authorize tracking in the district where the device 

will be installed, another district, or both. 

The warrant must contain the following:

o Identity of the person or property to be 

tracked.

o Identity of the magistrate judge to whom the 

return on the warrant will be made. 

 

5 Federal Rules of Criminal Procedure 41(e)(2)(B) and 41(f)(2), effective 1 

December 2006, specifically address warrants for tracking devices. This rule 

can be found in its entirety in the companion book, Legal Division Reference 

Book, in the segment entitled ―Selected Federal Rules of Evidence.‖
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o A reasonable period of time that the device 

may be used. The time will not exceed 45 

days. Extensions for not more than 45 days 

may be granted for good cause shown. 

o A command that the device be installed 

within 10 days or less from the time the 

warrant is issued, and during the daytime, 

unless the magistrate for good cause shown 

authorizes another time. 

o A command that there shall be a return on 

the warrant.

The officer executing the warrant must make the return 

to the magistrate judge specified in the warrant. The return 

must contain the exact dates and times of both the installing of 

the device and the period in which it was used. The return must 

be served on the person who was tracked, or whose property 

was tracked, within ten days after use of the device has ended. 

Upon request of the government, the magistrate judge may 

delay providing the notice required by the return.

VII. Pen Registers and Trap and Trace Devices

Title 18 U.S.C. §§ 3121-3127 deal with ―pen registers‖ 

and ―trap and trace‖ devices. Pen registers and trap and trace 

devices are not regulated by Title III but by other statutes.

A. Definitions and Purposes of Pen Registers and Trap 

and Trace Devices

1. Pen Registers

A ―pen register‖ captures all numbers that are being 

dialed out from a specific telephone line, and allows you to learn 

what numbers a suspect is calling from his telephone. Pen 

registers can also be used to capture the email addresses from

email sent by a target. Pen registers do not reveal the contents
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of the phone conversation or email.6

2. Trap and Trace Devices

―Trap and trace‖ devices capture all numbers that are 

coming into a specified telephone line, and allows you to learn 

where telephone calls to the targeted phone are originating 

from. They can also be used to capture the email addresses of 

those who send emails to the target. A trap and trace does not 

reveal the content of the conversation or email.7

B. Regulation of Pen Registers and Trap and Trace 

Devices

The regulations governing pen registers and trap and 

trace devices are contained at 18 U.S.C. §§ 3121 – 3127. These 

devices are not regulated by Title III, and the Supreme Court 

has held that the use of pen registers and trap and trace 

devices does not implicate the Fourth Amendment because 

there is no actual expectation of privacy in phone numbers 

dialed. Smith v. Maryland. Instead, the general rule regarding 

the use of pen registers and trap and trace devices is contained 

at 18 U.S.C. § 3121(a), which provides that ―no person may 

install or use a pen register or trap and trace device without 

first obtaining a court order under section 3123.‖

C. Obtaining a Court Order to Use a Pen Register or 

Trap and Trace Device

There are a number of procedural steps to obtain a court 

 

6 The U.S. Code definition of a pen register is a ―device which records or 

decodes dialing, routing, addressing, or signaling information transmitted by 

an instrument or facility from which a wire or electronic communication is 

transmitted, provided, however, that such communication shall not include 

the contents of any communication....‖ 18 U.S.C. § 3127(3). 

7 The U.S. Code definition of a trap and trace is ―a device or process which 

captures the incoming electronic or other impulses which identify the 

originating number or other dialing, routing, addressing, and signaling 

information reasonably likely to identify the source of a wire or electronic 

communication, provided, however, that such information shall not include 

the contents of any communication.‖ 18 U.S.C. § 3127(4). 
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order to use a pen register or trap and trace device. First, an 

―attorney for the government‖ must make the application for the 

court order, not the individual law enforcement officer. Second, 

the application must be in writing, under oath, and directed to 

a United States Magistrate Court, United States District Court, 

or United States Circuit Court of Appeals. Third, the 

application must include the following three pieces of 

information:

The identity of the attorney for the government who 

is making the application;

The identity of the law enforcement agency 

conducting the investigation;

and

A certification by the attorney for the government 

that the information likely to be obtained is relevant 

to an ongoing criminal investigation being 

conducted by that agency. 18 U.S.C. § 3122(b).

If these procedural steps are followed, a court order may 

be issued authorizing installation and use of a pen register or 

trap and trace device anywhere within the United States. This 

court order cannot exceed sixty days, although extensions of 

sixty days may be granted if the initial requirements for issuing 

the court order are again met.

It is a criminal offense to obtain evidence that required a 

pen or trap order without the required court order, however it 

will not result in suppression of the evidence on Fourth

Amendment exclusionary rule grounds. 

VIII. Video-Only Surveillance in an Area where a 

Reasonable Expectation of Privacy Exists

Using video-only surveillance in an area where a 

reasonable expectation of privacy exists is governed by the 

Fourth Amendment, not Title III. When video surveillance will 
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be used where a reasonable expectation of privacy exists, you 

must obtain a search warrant for the installation and use of the 

device unless consent has been obtained. If the device is being 

installed and monitored in a location where no reasonable 

expectation of privacy exists, a search warrant is not required. 

There is no reasonable expectation of privacy in most areas of a 

public building, e.g., the hallways and other public areas of a 

school. Restrooms, dressing rooms, and other similar use areas 

of public buildings are ―places of heightened privacy.‖ 

Therefore, under the Fourth Amendment, those who use such 

areas have a reasonable expectation that while doing so they 

will not be subject to government intrusion, including videoonly surveillance.

While recognizing that Title III does not govern the use of 

video-only surveillance in unprotected areas, there is a 

movement among the circuit courts to require that search 

warrants for video-only surveillance meet the higher, 

constitutional standards required by Title III. United States 

Attorney‘s Manual, Chapter 9.7-200. Specifically, in addition to 

showing that probable cause exists to believe that evidence of a 

crime will be obtained, six federal circuit courts require that the 

following information be included in a search warrant for videoonly surveillance:

A factual statement that alternative investigative 

methods have been tried and failed or reasonably 

appear to be unlikely to succeed if tried or would be 

too dangerous;

A statement of the steps to be taken to assure that 

the surveillance will be minimized to effectuate only 

the purposes for which the order is issued;

A particularized description of the premises to be 

surveilled;

A statement of the duration of the order, which 

shall not be longer than necessary to achieve the 

objective of the authorization, nor, in any event, 
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longer than thirty days, measured from the date of

the order (with thirty day extension periods 

possible); and

The names of the persons to be surveilled, if 

known.

Department of Justice policy also requires that the 

investigative agency seeking to use court-ordered video 

surveillance obtain approval from the appropriate Department 

of Justice official prior to obtaining a court order for video-only 

surveillance in areas where REP exists.

IX. Stored Electronic Communications

When the ECPA was enacted in 1986, it contained two 

separate titles. The second of these, referred to as the Stored 

Access Communications Act, outlines the requirements for 

obtaining wire or electronic communications that are stored by 

network service providers, such as America Online, EarthLink, 

and Comcast. Electronic mail (email) stored on a network server 

is the primary example of this type of communication. While 

this portion of the statute is unusually complicated, it can be 

simplified into two general rules. First, determine what type of 

information is being sought from the network service provider. 

Second, determine what type of legal document is necessary to 

require the network service provider to disclose the information.

A. Classifying the Information Sought

There are three types of information that you may wish to 

obtain from a network service provider: (1) Basic subscriber 

information; (2) transactional records; and (3) the contents of 

stored communications.

1. Basic Subscriber Information – Information 

about the Customer

Title 18 U.S.C. § 2703(c)(2) provides that ―basic

subscriber information‖ includes the following: ―Name; address; 

local and long distance telephone connection records, or records 
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of session times and durations; length of service (including start 

date) and types of services utilized; telephone or instrument 

number or other subscriber number or identity, including any 

temporarily assigned network address; and means and source 

of payment for such service (including any credit card or bank 

account number), of a subscriber to or customer of such 

service.‖

2. Transactional Records – How the Customer 

Transacts with the Internet

Title 18 U.S.C. § 2703(c)(1)(A) defines ―transactional 

records‖ as ―record[s] or other information pertaining to a 

subscriber to or customer of such service (not including the 

contents of communications....).‖ Described by many as a 

―catch-all‖ category, transactional records include ―only 

historical data involving past activity on the account.‖ 

Examples of ―transactional records‖ include:

Web sites visited by the customer or subscriber;

Cell-site data for cellular telephone calls; and

Email addresses of other individuals with whom the 

account holder has corresponded (e.g., those who 

have sent email to, or received email from, the 

customer or subscriber).

3. Contents

The ―contents‖ of a network account includes the actual 

files stored in the account (e.g., the actual text contained with 

an email). ―Contents‖ includes ―any information concerning the 

substance, purport, or meaning of that communication.‖

It is important to remember that this provision applies to 

only ―stored electronic communications‖ which has a specific, 

statutory definition and includes only ―any temporary, 

intermediate storage of a wire or electronic communication 
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incidental to electronic transmission thereof8,‖ and then only 

when held by the email provider. So, while a target may store 

emails on a home computer, they do not fall into the definition 

of a stored electronic communication because it does not meet 

the criteria above.

B. Methods for Obtaining the Information Sought

Three types of documents can be used to compel 

disclosure of the information listed above: (1) search warrants; 

(2) 18 U.S.C. § 2703(d) court orders; and (3) subpoenas. The 

choice of which document is appropriate will depend upon the 

type of information sought. While the consent of the customer 

or subscriber may always be obtained, often consent is not 

sought for tactical reasons. Listed below are the minimum legal 

methods to require a network service provider to disclose 

information. However, if one type of process is used, that 

process can also be used to access information that could have 

been obtained with a ―lesser‖ form of process. So, for example, 

you may obtain a search warrant to compel the production of 

certain information, even if a § 2703(d) court order or subpoena 

would suffice.

1. Obtaining Basic Subscriber Information -

Subpoena

A subpoena may be used to obtain ―basic subscriber 

information‖ from a network service provider. 18 U.S.C. § 

2703(c)(2). When using a subpoena, you are not required to 

provide notice to the subscriber or customer. The subpoena 

can be issued by a Federal Grand Jury, a Federal trial court, or 

an administrative subpoena authorized by a Federal statute, 

such as 6(a)(4) of the Inspector General Act.

2. Obtaining Transactional Records – Court Order

To obtain ―transactional records,‖ you must, at a 

minimum, use a court order issued pursuant to 18 U.S.C. 

 

8 18 U.S.C. § 2510(17).
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§ 2703(d). Either a United States Magistrate Judge, United 

States District Court Judge, or United States Circuit Court of 

Appeals Judge may issue a § 2703(d) court order. To obtain a 

2703(d) order, you must ―offer specific and articulable facts 

showing that there are reasonable grounds to believe that the 

contents of a wire or electronic information, or the records or 

other information sought, are  ̳relevant and material‘ to an 

ongoing criminal investigation.‖ As with a subpoena, you are 

not required to provide prior notice to the customer or 

subscriber before requiring the network service provider to 

disclose the records sought.

3. Obtaining Contents – Depends on Time and 

Retrieval Status

You may require a network service provider to provide the 

actual contents of wire or electronic communications held in 

storage, such as the body of an email. 

The legal method you must use varies, depending on 

whether the email has been ―retrieved‖ (opened) and how long 

the communication has been held in storage.

(a) Unretrieved (Unopened) Communications 

That Have Been in Storage for 180 Days Or 

Less

To require a network service provider to disclose the 

unretrieved contents of a wire or electronic communication that 

has been in storage for 180 days or less, you must obtain a 

search warrant. 18 U.S.C. § 2703(a). When using a search 

warrant, you are not required to give prior notice to the 

customer or subscriber. Further, you may apply for a court 

order to prohibit the network service provider from notifying the 

customer or subscriber of the existence of the warrant. If the 

court determines that notification would result in an ―adverse 

result‖ such as: endangering the life or physical safety of an 

individual; flight from prosecution; destruction of or tampering 

with evidence; intimidation of potential witnesses; or otherwise 

seriously jeopardizing an investigation or unduly delaying a 
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trial, a request for delayed notice will be approved. 18 U.S.C. § 

2705(b). There is no specified period established in the statute 

for how long a network service provider may be required to 

delay notice to the customer. Instead, the statute provides that 

such an order may be issued ―for such period as the court 

deems appropriate.‖

(b) Retrieved Communications and 

Communications that Have Been In Storage 

For More Than 180 Days

To compel disclosure of the contents of a wire or 

electronic communication that has been retrieved, or those that 

have been in storage for more than 180 days whether retrieved 

or not, you have three options depending on whether the email 

has been opened, and if unopened, how long it has been held in 

storage on the network server.

You may use a search warrant to obtain wire or electronic 

communications that have been retrieved or held in storage for 

more than 180 days whether retrieved or not. When a search 

warrant is used, the notice provisions outlined above apply.

You may also use an 18 U.S.C. § 2703(d) court order to 

require a network service provider to disclose the contents of 

wire or electronic communications that have been retrieved or 

held in storage for more than 180 days whether retrieved or not. 

Unlike when using a warrant, when a § 2703(d) court order is 

used to obtain this information, you must provide prior notice 

to the customer or subscriber. 18 U.S.C. § 2703(b)(1)(B)(ii). 

This prior notice may be delayed for a period not to exceed 

ninety days, if you request a delay and the court determines 

that notifying the customer of the existence of the court order 

may have an ―adverse result.‖

Extensions of the delay period are possible, but must be 

justified each time using the ―adverse result‖ standard. 18 

U.S.C. § 2705(a)(4). Once the delayed notice period expires, you 

must notify the customer of the court order and explain the 

procedures surrounding the delay in notification. As with a 
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search warrant, you may apply for a court order preventing the 

network service provider from notifying the customer or 

subscriber of the existence of the court order ―for such period as 

the court deems appropriate.‖

Finally, you may use a subpoena to obtain the contents of 

wire or electronic communications that have been retrieved or 

held in storage for more than 180 days, whether retrieved or 

not. 18 U.S.C. § 2703(b)(1)(B)(i). As with ―basic subscriber 

information,‖ the subpoena may be a Federal Grand Jury 

subpoena, a Federal trial subpoena, or an administrative 

subpoena authorized by a Federal statute. You must give prior 

notice to the customer when using a subpoena to obtain this 

type of information.

The court may delay notification to the customer for a 

period not to exceed ninety days if a ―supervisory official‖ 

certifies in writing that there is reason to believe that prior 

notice may have an ―adverse result.‖ A ―supervisory official‖ is 

defined by statute as ―the investigative agent in charge or 

assistant investigative agent in charge or an equivalent of an 

investigating agency‘s headquarters or regional office, or the 

chief prosecuting attorney or the first assistant prosecuting 

attorney or an equivalent of a prosecuting attorney‘s 

headquarters or regional office.‖ 18 U.S.C. § 2705(6).

Upon request, the court may delay notice for successive 

ninety-day periods, as long as the requirements of a supervisory 

official certification and an adverse result are present.

C. Preservation Orders

There is no requirement under the law for a provider to 

retain the emails of their customers for any specific period of 

time. There is the danger that between the time when the need 

for the emails becomes apparent and an order is issued, those 

emails could be destroyed.

To guard against email evidence from being destroyed 

before an order is obtained, the first step is for you (not a judge) 
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to issue a ―Preservation Order‖ unless the correct legal process 

can be obtained and served immediately upon the network 

service provider. This authority is under 18 U.S.C. § 2703(f)9

and is often referred to as an ―f-order.‖ When you issue an forder upon a network service provider, the provider must ―take 

all necessary steps to preserve records and other evidence in its 

possession pending the issuance of a court order or other 

process.‖ By statute, the records must be retained for a period 

of ninety days, with a ninety-day extension possible upon a 

renewed request by the government.

D. Multi-Jurisdiction Warrants and Stored Electronic 

Communications

Ordinarily, a search warrant may only be issued by a 

judge in the district where the evidence is located. This would 

present a problem with getting a warrant for stored electronic 

communications because even a single network provider may 

store emails on servers in more than one district. For this 

reason, 18 U.S.C. § 2703 eliminates the need to obtain multiple 

warrants for these stored emails, and authorizes a federal judge 

―with jurisdiction over the offense under investigation‖ to issue 

a warrant that is effective in all districts.

 

9 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Obtaining Stored Electronic Communications

Data Requested Legal Process to Obtain

Subpoena 2703(d) Court 

order

Note 2

Search 

Warrant 

No prior 

notice

Contents - In storage for 

180 days or less.

X

Contents - In storage for 

more than 180 days.

X

with prior 

notice. Note 1

X

with prior 

notice. Note 1

X

Contents – Email has 

been opened.

X

with prior 

notice. Note 1

X

with prior 

notice. Note 1

X

Transactional 

information 

X X

Basic subscriber 

Information 

X 

No prior 

notice

X

No prior notice

X 

1. Notice to the subscriber or customer required, but a delay order for 90 days 

may be obtained pursuant to 18 U.S.C. Section 2705 (a)(1) if the issuing court 

determines that there is reason to believe that:

A. In the case of a 2703(d) order, notification of the existence of the 

order would have an "adverse effect, or

B. In the case of a subpoena, upon receipt of a written certificate of a 

supervisory official that there is reason to believe that notification might have 

an adverse result. The "adverse result" factors listed are listed in 18 U.S.C. 

Section 2705 (a)(2)) (Endanger life or safety; flight from prosecution; 

destruction/tampering with evidence, witness intimidation, or otherwise 

seriously jeopardizing an investigation or unduly delaying a trial.

2. 2703(d) court order requires specific and particularly facts showing there 

are reasonable grounds to believe that the communications or records are 

material and relevant to an ongoing criminal investigation.
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NOTES
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Chapter Eight

Federal Court Procedures

I. INTRODUCTION TO THE FEDERAL COURT SYSTEM...................251

II. TRIAL COURTS, APPELLATE COURTS, JUDICIAL DISTRICTS ......252

A. Functions of Criminal Courts............................................ 252

B. Districts............................................................................ 252

III. THE FEDERAL COURTS ......................................................253

A. The Supreme Court........................................................... 253

B. The Circuit Courts of Appeals ........................................... 253

C. Classification of Offenses .................................................. 254

D. Federal District Courts...................................................... 255

E. U.S. Magistrate‘s Courts ................................................... 255

F. Review of Jurisdiction ....................................................... 256

G. Appointment of Justices and Judges................................. 256

IV. COURT DOCUMENTS OFFICERS NEED TO KNOW .....................256

A. Criminal Complaint........................................................... 256

B. Information....................................................................... 257

C. Indictment ........................................................................ 257

D. Arrest Warrant.................................................................. 257

E. Summons ......................................................................... 258

F. ―Tickets‖............................................................................ 258

V. THE INITIAL APPEARANCE. (RULE 5) ....................................259

A. The Initial Appearance ...................................................... 259

B. Bringing a Defendant before a Magistrate Judge ............... 259

1. Warrantless Arrest....................................................... 259

2. Arrest with a Warrant .................................................. 259

3. Summons .................................................................... 260

C. Using Non-Federal Judges for an Initial Appearance ......... 260

VI. RESPONSIBILITY UPON ARREST - THE INITIAL APPEARANCE .....260

A. The Requirement and Timing ............................................ 261

B. The Purpose and Procedure .............................................. 262

C. The Defendant‘s Rights ..................................................... 262

D. Pretrial Release or Detention? ........................................... 263

1. Pretrial Services Interview and Recommendation ......... 263

2. Judge‘s Options ........................................................... 263

3. Conditional Release ..................................................... 264

E. Detention Hearings and Decision ...................................... 264

F. Release is Preferred........................................................... 264

G. ―Bail Jumping‖.................................................................. 265
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VII. ARRESTS OUTSIDE THE DISTRICT OF THE CRIME....................265

A. Arrests in a District other than the District of the Crime... 265

B. Removal and Identity Hearings ......................................... 266

VIII. DIPLOMATS, FOREIGN NATIONALS, MEMBERS OF CONGRESS, AND 

JUVENILES ......................................................................266

A. Diplomats ......................................................................... 266

1. Diplomatic Immunity ................................................... 266

2. Verifying the Status ..................................................... 267

3. Handling Diplomats ..................................................... 267

4. Traffic Incidents Involving Diplomats ........................... 267

B. Foreign Nationals.............................................................. 269

1. Arrests/Detentions ...................................................... 269

2. Consular Access .......................................................... 270

3. Deaths ......................................................................... 271

4. Appointments of Guardians/Trustees.......................... 271

5. Ship/Aircraft Accidents ............................................... 271

C. Members of Congress........................................................ 271

1. Privilege from Arrest .................................................... 271

2. Exceptions to the Privilege ........................................... 272

D. Juveniles .......................................................................... 272

IX. PRELIMINARY HEARINGS AND ARRAIGNMENTS .......................273

A. Preliminary Hearings ........................................................ 273

1. Procedure .................................................................... 273

2. Results ........................................................................ 274

B. Arraignment...................................................................... 275

X. THE GRAND JURY .............................................................275

A. Purpose............................................................................. 275

B. Selection, Empanelment, and Structure............................ 276

C. Process ............................................................................. 276

D. Sealed Indictments ........................................................... 279

E. Post-Indictment Grand Jury Powers.................................. 279

XI. GRAND JURY SUBPOENAS...................................................279

A. Power and Flexibility......................................................... 279

B. Types (Rule 17) ................................................................. 280

C. Service .............................................................................. 280

D. Quashing or Modifying...................................................... 281

E. Legal Requirements........................................................... 281

F. Limitations........................................................................ 281

G. When a Subpoena can allow the Destruction of Evidence -

Using a Search Warrant.................................................... 282

H. The Mechanics of Obtaining.............................................. 283

I. Inspector General (IG) Subpoenas..................................... 283
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XII. SECRECY OF GRAND JURY PROCEEDINGS (RULE 6(E)) ............284

A. Exceptions to Rule 6(e)...................................................... 285

1. The Non-Government Witnesses Exception.................. 285

2. District Court or AUSA Disclosure ............................... 285

3. Access to Grand Jury Matters...................................... 285

4. The 6(e) list.................................................................. 286

XIII. DOCUMENTS REQUIRED TO FORMALLY ACCUSE A DEFENDANT ..288

XIV. DEFENSE ACCESS TO GOVERNMENT EVIDENCE ......................289

A. Discovery under Rule 16................................................... 290

B. The Brady Doctrine ........................................................... 292

C. Disclosure under Giglio..................................................... 292

D. The Jencks Act and Rule 26.2........................................... 294

E. Continuing Duty to Disclose ............................................. 295

F. Sanctions for Non-Compliance .......................................... 295

XV. VENUE AND TRANSFER.......................................................296

XVI. THE STATUTE OF LIMITATIONS AND SPEEDY TRIAL ACT ..........298

A. Statute of Limitations........................................................ 298

B. The Speedy Trial Act ......................................................... 299

XVII. PRESENTENCING INVESTIGATIONS AND REPORTS....................300

*****

I. Introduction to the Federal Court System and the Law 

Enforcement Officer’s Role

This chapter discusses how the federal courts operate, 

focusing on your role in obtaining the necessary documents, 

and following the necessary procedures, to have a defendant 

brought before a court to answer a criminal charge. The course 

is based on the Federal Rules of Criminal Procedure 

(hereinafter, Rules)1, but focuses on only those Rules that 

directly affect federal law enforcement officers. Rule numbers 

are provided for future reference. Knowing rule numbers is 

unnecessary.

[Students in UPTP and GSA-FPS must read Sections I through VI and 

Section VIII. Reading other sections for these programs is optional.]

 

1 All cited Rules can be found in their entirety in the companion book, Legal Division 

Reference Book, in the segment entitled ―Selected Federal Rules of Criminal 

Procedure.‖
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II. Trial Courts, Appellate Courts, and Judicial Districts

A. Functions of Criminal Courts

Federal criminal courts perform one of two functions: 

they conduct the trial in a criminal case, and they hear any 

appeal by the government or defendant in a case that has 

already been tried. In a trial, evidence is presented, witnesses 

testify, and a verdict is reached. That evidence and the 

transcripts of the testimony by the witnesses constitute the 

official record of the case. In an appeal, witnesses do not testify 

and no evidence is presented. Instead, the appellant (the 

person bringing the appeal), using the official record from the 

trial, attempts to demonstrate either that there is insufficient 

evidence in the record to justify his conviction or that the trial 

judge erred in ruling on a legal issue, or both.

B. Districts

The United States and its territories are divided into 94 

judicial districts. Each state (as well as the District of Columbia 

and Puerto Rico and 3 territories – Virgin Islands, Guam, and 

the Northern Mariana Islands) has at least one judicial district 

court. Some states have more than one. A district never 

crosses a state line. The exact boundaries are established in a 

series of statutes in the U.S. Code.

You must know your district boundaries because many 

functions can be performed only in a certain district. For 

example, you must obtain an arrest warrant in the district 

where the crime was allegedly committed. Most search 

warrants may only be issued in the district where the evidence 

is located. A defendant has the right to be tried in the state and 

district where the crime allegedly occurred.
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III. The Federal Courts

A. The Supreme Court of the United States

The Supreme Court is the final authority on the 

interpretation of federal law. Virtually all cases considered by 

the United States Supreme Court are appeals from the 

decisions of other courts (federal or state). There is no right to 

an appeal to the Supreme Court, and that Court only considers 

a small percentage of cases. A party who loses an appeal before 

the Circuit Court of Appeal must, in order to obtain review by 

the Supreme Court, file a motion called a Petition for a Writ of 

Certiorari (―to make certain‖). There are nine justices on the 

Supreme Court. Only if at least four of the nine justices vote to 

do so will a writ of certiorari be granted.

Usually, all nine justices participate in each case, and the 

decision is by majority vote. One of the justices will be 

responsible for writing the majority opinion. Justices who 

concur in or dissent from the majority opinion may also write 

separate opinions. 

In the spring of each year, the Supreme Court proposes 

changes to the Federal Rules of Criminal Procedure. Those 

proposed changes to the Rules are automatically implemented 

unless Congress rejects or changes them. Each district court 

can also adopt its own local rules that govern procedural 

matters within the district. A local rule may, for example, 

establish a dress code or require that a certain procedure be 

accomplished within a certain period of time. Local rules may 

require the use of particular forms of, for example, arrest 

complaints, warrants, etc. The sample forms in the additional 

resources section of this student text may differ slightly among 

districts. Familiarize yourself with the local rules when arriving 

in a new district.

B. The Circuit Courts of Appeals

There are 13 federal circuit courts of appeals spread 

across the United States consisting of 11 federal appellate 

circuits, the District of Columbia Circuit Court of Appeals, and 
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the U.S. Court of Appeals for the Federal Circuit. The 11 

appellate circuits consist of several districts and hear appeals 

from the district courts located within its circuit. The Court of 

Appeals for the Federal Circuit has nationwide jurisdiction to 

hear appeals in specialized cases such as those involving patent 

laws. The courts of appeals have only appellate jurisdiction 

with three judge panels hearing most appeals. On rare 

occasions, a court of appeals may sit en banc (all judges hear 

the appeal). Once a court of appeals rules, any further appeal 

will be to the Supreme Court. The decision of the court of 

appeals is binding only on the district courts within its circuit, 

but the opinion may influence the decision of the courts in 

other districts. The law may differ among the circuits as to 

particular legal issues.

C. Classification of Offenses

Type Offense

(18 U.S.C. § 3559)

Maximum Possible Confinement If 

Convicted

Felony More than one year or death.

(When the death penalty is possible, the 

offense is also known as a ―capital 

offense.‖)

Class A 

Misdemeanor

One year or less, but more than 6 

months

Class B 

Misdemeanor

6 months or less, but more than 30 days

Class C 

Misdemeanor

30 days or less, but more than 5 days

Infraction 5 days or less

Class B Misdemeanors, Class C Misdemeanors, and 

Infractions are collectively known as petty offenses.
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D. Federal District Courts

Federal district courts are the federal felony trial courts. 

While district courts may also try misdemeanors and 

infractions, usually they do not. Only a district court may try a 

felony. In addition to the actual trial of the case, district courts 

also conduct associated proceedings leading up to and following 

the trial. The nature of these proceedings is discussed later, 

but by way of example, a district court may set bail, take the 

defendant‘s plea, conduct suppression hearings, and sentence 

the accused after conviction. District courts may also perform 

functions that are part of a criminal investigation that may lead 

to a trial such as issuing search and arrest warrants.

E. U.S. Magistrate Courts

Every district has one or more magistrate judges who are 

appointed by the District Court judges. You may expect to 

make frequent appearances before a magistrate judge to obtain 

necessary court documents (such as an arrest or search 

warrant) or to testify at pre-trial hearings. 

Magistrate judges may try Class A misdemeanors if the 

defendant consents. If the defendant does not consent to have 

a magistrate judge hear a Class A misdemeanor case, the case 

must be heard in district court. Magistrate judges may also try 

any petty offense (Class B and C misdemeanors and infractions) 

whether or not the defendant consents.

Though magistrate judges may not conduct trials in 

felony cases, they routinely will conduct pre-trial hearings 

related to those cases. For example, you would take a 

defendant you arrested on a felony before a magistrate judge for 

an initial appearance and a detention hearing even though the 

magistrate judge will not conduct the trial. Although District 

Court judges could conduct such pre-trial proceedings, in most

felony cases District Judges usually delegate their authority to 

do so to magistrate judges.
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F. Review of Jurisdiction to Try Federal, Criminal 

Cases

Type Offense Where the case will 

be tried

Felony District court.

Class A Misdemeanor Magistrate court if the 

defendant consents. If no 

consent, in district court.

Petty Offenses

(Class B and C Misdemeanors 

and Infractions)

Magistrate court.

G. Appointment of Justices and Judges

Supreme Court justices, and judges of the courts of

appeals and district courts, are nominated by the President, 

confirmed by the Senate, and serve for life unless impeached. 

Magistrate judges are appointed by, and serve under the 

supervision of, district court judges for a specific term (eight 

years). The district court judges may re-appoint a magistrate 

judge for one or more successive terms. 

IV. An Introduction to Court Documents 

You must know what legal documents are necessary to 

accomplish a certain purpose. This section is an introduction 

to some of those documents. Later in this chapter some of the 

documents will be discussed in greater detail.

A. Criminal Complaint

You will prepare criminal complaints. A criminal 

complaint states a charge along with facts establishing probable 

cause that the crime was committed and the defendant 

committed it. The complaint is signed by the officer, under 

oath, in front of the judge (usually a magistrate judge). 

Criminal complaints are used in two situations: to obtain an 
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arrest warrant or summons, or to state the charge when you 

make a warrantless arrest.

If you have probable cause a suspect committed an 

offense, you may prepare a criminal complaint and obtain an 

arrest warrant. (Instead of an arrest warrant, you may elect to 

obtain a summons.) If you have probable cause, you may also 

arrest a suspect before you are able to obtain an arrest warrant. 

In that case, you will prepare a criminal complaint after the 

arrest but before taking the arrested person before a judge. A 

sample criminal complaint is in the additional resources 

section.

B. Information

An information is a list of criminal charges brought 

against a particular defendant by the United States Attorney. 

Where the charge is a felony, prosecution of a defendant based 

on an information may only ensue where the defendant has 

waived his constitutional right to be charged by way of a grand 

jury indictment (see below). An information is routinely used to 

charge misdemeanor offenses.

C. Indictment

An indictment is a list of criminal charges brought 

against a particular defendant by a grand jury. The grand jury 

consists of 23 members of the community selected by a District 

Court judge to sit for a period of 18 months. The grand jury 

may return an indictment only where 12 of its members have 

found that there is probable cause to believe that a crime was 

committed and that the defendant committed it. In order to try 

a defendant for a felony, the government must obtain an 

indictment. Exceptions to this rule, and how an indictment is 

obtained, will be discussed later.

D. Arrest Warrant

An arrest warrant is issued by a judge and commands 

that a defendant be arrested and brought before the court. The 

arrest warrant identifies who is to be arrested and the offense. 
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An arrest warrant is obtained when a judge is given a criminal 

complaint, an information, or an indictment with a request that 

an arrest warrant be issued. Upon arrest, an officer possessing 

the warrant must show it to the defendant. If the officer does 

not possess the warrant, the officer must inform the defendant 

of the warrant‘s existence and of the offense charged. At the 

defendant‘s request, the officer must show the warrant to the 

defendant as soon as possible. After executing the warrant 

through the arrest, the officer must make a return (report) to 

the judge before whom the defendant is taken after arrest. A 

sample application for an arrest warrant and an arrest warrant 

are in the additional resources section.

E. Summons

A summons is issued by a judge, served on a defendant, 

and requires that the defendant appear before the court at a 

stated time and place. A summons is obtained in the same 

manner as an arrest warrant by presenting a complaint, 

information, or indictment to the judge. If the defendant does 

not appear after being served a summons, an arrest warrant 

may be issued. U.S. Marshals and federal officers serve 

summonses. A summons is served by personally delivering a 

copy of the summons to the defendant. If the defendant cannot 

be found, a summons is served by leaving a copy of the 

summons at the defendant‘s residence or usual place of abode 

with a person of ―suitable age and discretion‖ residing at that 

location. When a summons is not personally served on the 

defendant, a copy of the summons must also be mailed to the 

defendant‘s last known address. The officer who serves a 

summons must complete the back of the summons stating how 

and when the summons was served. Filling out the back of the 

summons is known as making a ―return‖ of the summons. A 

sample summons is in the additional resources section.

F. ―Tickets‖

A citation or violation notice is similar to a traffic ticket 

and is issued by an officer.
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V. The Initial Appearance (Rule 5)

A. The Initial Appearance

A defendant‘s first appearance before a federal judge will 

be at a proceeding called an initial appearance. While a district 

court judge could conduct the initial appearance, a magistrate 

judge usually conducts them even in felony cases.

B. Methods of Bringing a Defendant before a

Magistrate Judge

1. Warrantless Arrest

You typically may make a warrantless arrest when you 

have probable cause that the defendant committed a felony 

offense and when a misdemeanor was committed in your 

presence. Since the defendant has the right to know of the 

charges for which he has been arrested, you must prepare a 

criminal complaint after the defendant is arrested and before 

taking the defendant to the initial appearance. (The authority 

to arrest and when a misdemeanor arrest may be made is 

covered in the Fourth Amendment section of this handbook).

2. Arrest with a Warrant

You may obtain arrest warrants in several ways.

(a) With a criminal complaint.

You may prepare a criminal complaint, swear to it before 

a magistrate judge and request an arrest warrant.

(b) With an indictment.

If the defendant has been indicted by a grand jury, you 

may obtain an arrest warrant by presenting the indictment to a 

judge and requesting a warrant.
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(c) With an information.

If the AUSA has filed an information, you may obtain an 

arrest warrant by presenting the information to a judge and 

requesting a warrant.

3. Appearance on a Summons

Instead of obtaining an arrest warrant with a criminal 

complaint, indictment or information, you may obtain a 

summons. The summons will direct the defendant to appear in 

court for an initial appearance without being arrested.

C. Using Non-Federal Judges for an Initial Appearance

Federal law permits certain state and local judicial 

officers to perform some federal court functions to include 

swearing officers to criminal complaints, issuing arrest 

warrants, and conducting initial appearances. Avoid using 

state or local judges to issue federal warrants or conduct federal 

proceedings except in exigent circumstances and only after first 

coordinating the need with your AUSA. 18 U.S.C. § 3041.

VI. The Officer’s Responsibility upon Arrest-The Initial 

Appearance 

After an arrest but before the initial appearance, you will 

take certain steps to secure and prepare the defendant for 

processing by the courts. Such steps include: a search incident 

to arrest; booking procedures (fingerprinting, photographing, 

preparing various forms); transporting the defendant to a 

federally approved detention facility; a possible inventory of 

impounded property; and notifying the Pretrial Services Office. 

If the arrest was without a warrant, and a criminal complaint, 

indictment, or information has not already been prepared, you 

must prepare a criminal complaint.
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A. The Requirement and Timing of the Initial 

Appearance

Rule 5a states that, upon arrest, a suspect must be taken 

to an initial appearance before a magistrate judge without 

unnecessary delay. . Failure to do so can have an adverse 

effect on statements made during a post-arrest interview. First, 

of course, any statement taken has to be voluntary. Proper 

Miranda warnings must be given and a valid waiver obtained. 

Assuming this has been done, the courts may then look at 

whether there was a delay in getting to the magistrate.

By statute, Congress created a ―safe zone‖ for the first 6 

hours. Statements taken during the first 6 hours will not be 

suppressed because of any delay. That 6 hour safe zone can be 

extended if the delay is reasonable given means of 

transportation and distance to the magistrate. Thus, a 

statement taken 9 hours after arrest will still be usable if 

extensive travel was required to get to the magistrate for the 

initial appearance. 

A statement will not automatically be suppressed just 

because it is made after that 6 hour safe zone. After the 6 

hours, courts will simply begin to assess whether any delay is 

reasonable and necessary. For example, if a defendant had to 

be taken to the emergency room for treatment, then the delay 

would be deemed necessary, and any statements made could 

still be used at trial. If there is a problem with availability of the 

magistrate, officers should coordinate with an AUSA as to what 

should be done. 

Delays solely for the purpose of continuing or conducting 

an interrogation will be seen as unnecessary and statements 

may be lost. So, if a magistrate is readily available, and a 2 

hour interview is begun 5 hours after an arrest, statements 

given during the first hour will be usable, but those made in the 

second hour might not be. 

The Supreme Court has never defined exactly what 

―unnecessary delay‖ is, but a good rule of thumb is that you 
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should ordinarily have the defendant in court for an initial 

appearance the next time the Magistrate Judge holds court 

following the defendant‘s arrest. You should be aware of any 

particular requirements in this regard set forth in the district‘s 

Local Rules.

 The courts have given examples of unnecessary delay as: 

delay for the purpose of gathering additional evidence to justify 

the arrest; delay motivated by ill will against the arrested 

individual; or delay for delay‘s sake. If there is the possibility it 

may take longer than 48 hours to have the defendant at the 

initial appearance, you should immediately notify the AUSA or 

the duty AUSA after hours. If a federal judge or magistrate 

judge is unavailable, you may take the defendant before a local 

or state judge, mayor of a city, or other official designated in 18 

U.S.C. § 3041 for an initial appearance. This alternative should 

not be used unless approved by the AUSA.

B. The Purpose and Procedure of the Initial 

Appearance

The primary purpose of the initial appearance is to inform 

the defendant of the charges for which the arrest was made and 

the procedural rights in the upcoming trial. Pre-trial release 

(bail) may also be considered at this time.

C. The Defendant‘s Rights at the Initial Appearance

The judge informs the defendant of the charge usually by 

providing the defendant with a copy of the indictment, 

information, or criminal complaint, or by having the AUSA 

describe the charges pending against the defendant. The 

defendant will be told of his right to retain counsel, and if the 

defendant cannot afford counsel, the right to have counsel 

appointed. The defendant will also be told how he can secure 

pretrial release, the defendant‘s right not to make a statement, 

and that any statement made can be used against him.
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D. Pretrial Release or Detention

The defendant can be released or detained pending the 

trial date. This determination is made by applying the Bail 

Reform Act, 18 U.S.C. §§ 3141 - 42. In most cases, there is a 

presumption that the defendant will be released on bond and 

conditions. The government may only overcome that 

presumption by demonstrating to the Court that the defendant, 

if released on bond, would pose a risk of flight or danger to the 

community. Where the charges are narcotics related (Titles 21 

or 46) and have a maximum penalty of ten years or more, there 

is a rebuttable presumption that the defendant, if released, will 

pose the risk of flight and danger to the community. In that 

event, the law affords the defendant the opportunity to rebut 

that presumption.

The process of making the determination is as follows:

1. Pretrial Services Interview and 

Recommendation

Prior to being taken to the initial appearance, the Pretrial 

Services Office within the district collects information from the 

defendant and other sources. It then recommends to the judge 

whether a defendant should be detained or released. The 

recommendation may include conditions of release. Judges 

often follow the recommendations of the Pretrial Services Office. 

If that office recommends release pending trial, and you believe 

that detention is warranted, inform the AUSA immediately so 

the AUSA can decide whether to request a detention hearing. 

The report prepared by the Pretrial Services Office is 

confidential, but it may be released to the AUSA. A copy will not 

automatically be given to you.

2. Judge’s Options

At the initial appearance, the judge may:

Release the defendant on his own recognizance,

Release the defendant on condition or conditions 

that may include bail,
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Conduct a detention hearing if the lawyers for both 

side are prepared to proceed, or

Temporarily detain the defendant until the 

detention hearing can be held.

3. Conditional Release

The judge has wide discretion in selecting conditions that 

are reasonably necessary to assure the defendant‘s appearance 

and the safety of others and the community. Every release is 

conditioned upon the defendant‘s not committing a crime 

during the period of release. There are many other options the 

judge may choose such as: maintaining employment; travel 

restrictions; restrictions on place of residence and associating 

with other persons to include victims and witnesses; curfews; 

drug and alcohol use; medical evaluation and treatment; bail; 

limited custody when the defendant is not at work; and 

―tethering‖ by electronically monitoring the defendant‘s location.

E. Detention Hearings and Decision

The decision to detain the defendant in custody is made 

at a detention hearing. At that hearing, the defendant is 

permitted to present evidence, call witnesses, cross-examine 

other witnesses, and be represented by counsel.

F. Release is Preferred

The Bail Reform Act requires the pretrial release of a 

defendant on either his personal recognizance or an unsecured 

appearance bond, subject to conditions while on release, unless 

the judge determines release: (1) Will not reasonably assure the 

appearance of the defendant (flight risk), or (2) Will endanger 

the safety of any other person in the community. The judge will 

consider the seriousness of the charged offense, the strength of 

the case, criminal history, and the possible danger that the 

defendant may present to the community.
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G. ―Bail Jumping‖

If the defendant fails to appear in court after being 

released, the judge has many options to include a charge for 

violating the federal Failure to Appear statute, also known as 

―bail jumping.‖ If later convicted of bail jumping, the sentence 

for bail jumping will be in addition to (consecutive sentence) any 

sentence for the offense for which the defendant failed to 

appear. 18 U.S.C. § 3146.

VII. Arrests outside the District where the Crime was 

Committed

If you arrest the defendant in the district where the crime 

occurred, you must take the defendant for his initial 

appearance in that district. When possible, an arrest should be 

made in the district where the offense was committed because 

the officers, AUSA, and judge will already be familiar with the 

case, and it will be easier to obtain witnesses for any necessary 

proceedings.

A. Arrests in a District other than the District where 

the Crime Occurred

When you arrest the defendant in any district other than 

the one in which the crime occurred, there are several options 

for where to take the defendant for the initial appearance, 

depending on the proximity of other districts and how quickly 

the initial appearance can be held. You may take the defendant 

to a district that meets the following criteria:

The district in which the defendant was arrested, or

An adjacent district (a district that touches the 

district of arrest) if:

the initial appearance can occur more 

promptly in the adjacent district, or

the offense was committed in the adjacent 

district and the initial appearance can be 

held on the same day as the day of arrest.
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B. Removal and Identity Hearings

When the initial appearance is held in a district other 

than one in which the crime occurred, the judge must conduct 

a removal, and often, an identity hearing.

―Removal‖ is the process of transferring the defendant to 

the district where the crime occurred to stand trial. If the 

defendant was arrested without a warrant, you must obtain an

arrest warrant from the district where the crime occurred. The 

documents can be sent by facsimile.

As part of the removal hearing process, the judge must 

determine that the defendant is the same person named in the 

arrest warrant. This will be done at an identity hearing. When 

the defendant admits his true name, this requirement is 

satisfied. Otherwise, the AUSA may have to produce witnesses 

who can identify the defendant or match descriptions from 

other evidence.

VIII. Diplomats, Foreign Nationals, Members of Congress, 

and Juveniles

A. Diplomats

1. Diplomatic Immunity

Diplomats are representatives of foreign countries who 

work in the United States on behalf of the government of that 

foreign country. In order to enjoy status as a diplomat, a 

foreign government representative must be officially recognized 

by the U.S. government.

Diplomatic immunity is based on international law and 

treaties that the United States has made with other nations. A 

person with diplomatic immunity is not subject to the 

jurisdiction of U.S. courts either for official, or, to a large extent, 

personal activities and therefore may not be arrested or 

prosecuted for any offense no matter how serious.
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The same laws that protect foreign diplomats in the U.S. 

also protect U.S. diplomats overseas.

2. Verifying the Status of Diplomats

There are many levels of diplomatic immunity; this course 

will only discuss those with full diplomatic immunity. When 

encountering suspects who claim diplomatic immunity, inform 

the suspect they will be detained until their identity and 

diplomatic status has been verified. Most diplomats carry 

diplomatic passports or identification cards issued by the U.S. 

Department of State. Nevertheless, verify the claimed status of 

every person by calling the Department of State at the 

Diplomatic Security Command Center (DSCC) at 202/647-

7277. DSCC will respond with diplomatic status and degree of 

immunity.

If the State Department does not verify the person‘s 

diplomatic status, you may treat the person as any other 

suspect.

3. Handling Diplomats after Verifying Diplomatic 

Status 

Do not arrest.

Investigate and prepare a report.

Do not use handcuffs unless the diplomat 

poses an immediate threat to safety.

Do not search or frisk the person, his vehicle, 

or personal belongings unless necessary for 

officer safety.

4. Traffic Incidents Involving Diplomats

You may stop and cite diplomats for moving traffic 

violations. This is not considered detention or arrest. The 

diplomat may not be compelled to sign a citation. In serious 

traffic incidents (DWI, DUI, and accidents involving personal 
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injury) you may offer a field sobriety test, but the diplomat may 

not be required to take it. Vehicles may not be impounded or 

booted, but may be towed to prevent obstructing traffic. 

Intoxicated diplomat-drivers should be offered a ride, a taxi, or 

to have a friend transport them; however, the diplomat may 

refuse the offer.

A diplomat might refuse offers to assist with 

transportation or other arrangements and yet still be too 

intoxicated to drive or walk home. In such instances, contact 

your supervisor and call upon the diplomat‘s embassy to advise 

them of the situation. The diplomat‘s government may take 

action on its own or direct its diplomat to accept offers of 

assistance. If the diplomat persists in driving while intoxicated, 

you must use your common sense to secure the car keys or 

perhaps block the car so the diplomat cannot drive it. You 

should not stand by while an intoxicated person attempts to 

drive.

In other situations, a diplomat may still present a 

possible danger to others. For example, during a domestic 

assault, the diplomat may still be trying to strike a spouse. 

Again common sense should prevail, and you should notify a 

superior and the diplomat‘s embassy. You might offer 

protection to the potential victim of an assault. If the diplomat 

presents a threat of injury to you or another, you may use

reasonable force to prevent injury; however, you still may not 

arrest.

Forward reports of diplomatic incidents to the U.S. 

Department of State as soon as possible after the incident. 

Copies of any citations or charges should accompany each 

report. The addressee for incident reports, etc. is Protective 

Liaison Division, DSS – fax (202) 895-3613.

By law, a foreign embassy or diplomatic mission must be 

treated as foreign (non-U.S.) soil. Even with a search or arrest 

warrant, you may not enter these places without permission 

from the foreign nation.
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B. Foreign Nationals2- Compliance with the Vienna 

Convention on Consular Relations (VCCR) 

The 1963 Vienna Convention on Consular Relations 

(VCCR) established the protocol for the treatment of foreign 

nationals arrested in the United States as well as for U.S. 

citizens arrested by foreign governments. The agreements 

contained in the VCCR have the status of treaties in 

international law. The U.S. Constitution provides that treaties 

once adopted have the force of law in the United States. 

Therefore the provisions of the VCCR are binding on federal, 

state and local government officials.

International legal obligations exist to assure foreign 

governments that the United States will extend appropriate 

consular services to their nationals in the United States. These 

are mutual obligations that also pertain to American citizens 

abroad. For purposes of consular notification, a ―foreign 

national‖ is any person who is not a U.S. citizen. The following 

situations create obligations for law enforcement officers.

1. Arrests/Detentions – Advising of Right to 

Consular Notification3

Whenever a foreign national is arrested or detained in the 

United States, there are legal requirements to ensure that the 

foreign national‘s government has the opportunity to offer 

him/her appropriate consular assistance. In all cases, the 

foreign national must be told of the right of consular 

notification and access. In most cases, the foreign national 

then has the option to decide whether to have consular 

representatives notified of the arrest or detention. Neither the 

gravity of the charges, nor the immigration status of the 

 

2 The Legal Division thanks the U.S. Department of State Bureau of Consular 

Affairs for submitting the following material for this chapter. Additional 

information can be obtained by calling (202) 647-4415 or at 

http://travel.state.gov/law/notify.html.

3 Please see ―Consular Notification‖ materials in the companion book, Legal 

Division Reference Book, in the segment entitled ―Additional Resources 

Section.‖
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individual, is relevant to the consular notification decision; the 

only triggering factor is arrest or detention of a non-U.S. citizen. 

(a) requested notification (―Basic Rule‖)

If the detained foreign national is a national of a country 

that is not on the mandatory notification list, the ―Basic Rule‖ 

applies: you must inform the foreign national without delay of 

the option to have his/her government‘s consular 

representatives notified of the detention. If the detainee

requests notification, a responsible detaining official must 

ensure that notification is given to the nearest consulate or 

embassy of the detainee‘s country without delay. 

(b) mandatory notification (―Special Rule‖)

In some cases, however, the foreign national‘s consular 

officials must be notified of an arrest and/or detention 

regardless of the foreign national‘s wishes. Those countries 

requiring mandatory notification are identified in the State 

Department list of ―Special Rule‖ (mandatory notification) 

countries. If a national of one of these countries is arrested or 

detained, notification to the individual‘s consular officials must 

be made without delay.

Whether the case falls under the ―Basic Rule‖ or the 

―Special Rule‖, you should always keep a written record of all

notification actions taken, including initial provision of 

information to the detained individual about the right of 

consular notification and access.

2. Consular Access

Detained foreign nationals are entitled to communicate 

with their consular officers. Any communication by a foreign 

national to his/her consular representatives must be forwarded 

by the appropriate local officials to the consular post without 

delay. Foreign consular officers must be given access to and 

allowed to communicate with their nationals who are being held 

in detention. Further, they are entitled to provide consular 
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assistance, such as arranging for legal representation and 

contacting family members. They must refrain from acting on 

behalf of a foreign national, however, if the national opposes 

their involvement. The rights of consular access and 

communication generally must be exercised subject to local 

laws and regulations.

3. Deaths

When U.S. government officials become aware of the 

death of a foreign national, the nearest consulate of that 

national‘s country must be notified without delay. This will 

permit the foreign government to make an official record of the 

death for its own legal purposes.

4. Appointments of Guardians/Trustees

When a guardianship or trusteeship is being considered 

with respect to a foreign national who is a minor or an 

incompetent adult, consular officials must be informed without 

delay.

5. Ship/Aircraft Accidents

If a ship or airplane registered in a foreign country wrecks 

or crashes in the United States, consular officials of that 

country must be notified without delay.

C. Arresting Members of Congress

1. Privilege from Arrest

Members of congress are privileged from arrest while 

Congress is in session and while attending, or going to and 

from, sessions of congress. (Art.1, Section 6 of the U.S. 

Constitution.) The privilege does not prohibit issuing traffic and 

other citations, investigating and preparing reports, serving a 

subpoena or summons, or prosecution for a crime.
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2. Exceptions to the Privilege

Even if attending congressional sessions or on the way to 

and from them, a member of congress may be arrested for a 

felony or breach of the peace. Generally, a breach of the peace 

is an offense that involves violence. Because ―breach of the 

peace‖ is a fluid term and subject to constant interpretation, 

you should investigate and document the breach of the peace

and then submit your findings to your superiors. No arrest 

should be made unless authorized by your superiors in 

consultation with U.S. Attorney‘s Office. 

D. Arresting Juveniles

A juvenile is a person who is under the age of 18. There 

are special procedures that you must follow when you arrest a 

juvenile:

Immediately advise the juvenile of their Miranda

rights in words that a juvenile can understand even 

if you do not intend to question the juvenile;

Immediately notify the AUSA of the juvenile‘s arrest 

and the charge(s);

Immediately notify the parents or guardian of the 

juvenile‘s arrest, the charges, and juvenile‘s legal 

rights under Miranda. (It is your responsibility to 

make a good faith effort to notify the juvenile‘s 

parents or guardian. If the parent or guardian 

requests to speak with the juvenile, you must allow 

it), and

Take the juvenile forthwith before a United States 

magistrate judge. (Forthwith requires more speed 

than ―unnecessary delay‖), and

Do not make a media release. You should not 

make public the name or the picture of any juvenile 

(or any reports, documents, fingerprints, and the 
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like pertaining to them) without prior approval of 

the district court.

You may and should investigate the case as you would 

any other. If the juvenile understands and waives his Miranda

rights, you may question the juvenile. Any statement obtained 

lawfully and without delay in bringing the juvenile before the 

magistrate judge will be admissible in court.

When you intend or expect to arrest a juvenile, attempt to 

obtain the approval and guidance of the AUSA before the arrest.

IX. Preliminary Hearings and Arraignments

A. Preliminary Hearings

A preliminary hearing is a proceeding during which the 

government is required to produce evidence from which the 

Court may conclude whether or not the defendant‘s arrest was 

based upon probable cause. Rule 5.1(a) requires that the 

magistrate judge hold a preliminary hearing for all defendants, 

other than those charged with a petty offense, with the following 

exceptions:

The defendant waives (gives up the right to) the 

hearing.

The defendant was already indicted, or charged by 

information, before the time the preliminary 

hearing is to be held.

The government dismisses the case on its own. A 

defendant who has been detained in custody must 

then be released.

1. The Preliminary Hearing Procedure

At a preliminary hearing, the magistrate judge will hear 

evidence to determine whether there is probable cause to 

believe that an offense has been committed and that the 

defendant committed it. The AUSA will call witnesses and may 
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offer other evidence. You may testify at preliminary hearings. 

The defense may cross-examine government witnesses, call its 

own witnesses, and offer evidence. Because the preliminary 

hearing is not a trial, there is no jury and hearsay is admissible. 

Because the preliminary hearing is not a suppression hearing, 

the defense may not object on the grounds that evidence was 

unlawfully seized. Testimony given at the preliminary hearing 

is recorded and could be used to impeach your testimony at a 

later proceeding.

2. The Preliminary Hearing Results

If the judge finds there is probable cause to believe an 

offense has been committed and the defendant committed it, 

the defendant will be required to appear for further proceedings. 

If the judge decides there is no probable cause, the judge will 

dismiss the complaint. If the defendant is in custody, he will be 

released. A finding of no probable cause does not prevent a 

subsequent prosecution. The investigation may continue, and 

the AUSA may still seek an indictment or file an information.

The preliminary hearing must be held not later than 10 

days after the initial appearance if the defendant is detained in 

custody, or 20 days after the initial appearance if the defendant 

has been released from custody. Generally, a preliminary 

hearing is held in the same district as the initial appearance. 

When the defendant is arrested in a district other than where 

the crime occurred and the initial appearance is held in the 

district of arrest, he may elect to have the preliminary hearing 

in the district where the crime occurred.

Preliminary hearings consume resources, expose 

government witnesses to cross-examination, may compromise 

sensitive information, and may force the government to disclose 

information prematurely. Processing a case in a way to avoid 

having a preliminary hearing is a legitimate tactic. For 

example, if an indictment or information is obtained before the 

arrest, the defendant is not entitled to a preliminary hearing. In 

many situations, however, it may be appropriate to arrest before 
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the indictment or information is obtained, as illustrated by the 

below examples:

The danger that a defendant may harm another, 

flee, or destroy evidence may require an immediate 

arrest.

Before an indictment can be obtained, you realize 

that the defendant may be in possession of 

evidence at a particular time and wish to take 

advantage of a search incident to arrest.

B. Arraignment

The purposes of an arraignment are: (1) to ensure that 

the defendant has a copy of the indictment or information; (2) 

either to read the charging document to the defendant or to 

advise the defendant of the substance of the charges against 

him, (3) and for the defendant to enter a plea to those charges.

An arraignment does not occur until formal charges are 

filed against the defendant in the form of an indictment or an

information. The judge may permit a defendant to waive formal 

arraignment if the defendant requests waiver, pleads not guilty, 

and certifies receipt of a copy of the indictment or information.

At the time of the arraignment, the defendant, through 

defense counsel, will typically enter a plea of not guilty. The 

court will accept the not guilty plea and, in response to it, will 

enter an order requiring the exchange of discovery by the 

government and defense counsel in preparation for trial.

X. The Grand Jury4

A. Purpose of the Grand Jury

A grand jury is an independent body that operates under 

 

4 The Federal Grand Jury Handbook can be found in the companion book, 

Legal Division Reference Book, in the segment entitled ―Additional Resources 

Section.‖
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the supervision of a district court judge and under the direction 

of an AUSA. From your point of view, a grand jury performs two 

essential functions.

First, grand juries return indictments. The Fifth 

Amendment to the U.S. Constitution provides that ―... no person 

shall be held to answer for a capital or otherwise infamous 

crime unless on a presentment or indictment by grand jury.‖ 

Accordingly, if the defendant is to be tried for a felony, a ―true 

bill of indictment‖ (referred to simply as an indictment) is 

required unless the defendant waives it. Rule 7(a)(1).

Second, a grand jury may investigate crime within its 

district. Grand juries have broad powers to investigate crime 

and may, through the use of grand jury subpoenas, obtain 

testimony, documents, and other evidence that you cannot. If 

the grand jury concludes an investigation by finding probable 

cause that a crime was committed and that a particular person, 

or persons, committed that crime, it may then return an

indictment naming that person or persons as defendants. A 

grand jury may not investigate civil (non-criminal) matters.

B. Selection, Empanelment, and Structure

Grand jurors are selected by a random drawing, usually 

by the Clerk of Court, from a ―pool‖ consisting of registered 

voters. Grand jurors must be U.S. Citizens, at least 18 years of 

age, proficient in English, and have no felony convictions or 

pending prosecution. Federal grand juries consist of 23 such 

persons who generally serve for 18 months; however, the court 

may discharge the jury earlier or extend the jury‘s service six 

additional months. When the grand jury sits, there must be a 

minimum of 16grand jurors present.

C. The Grand Jury Process

The grand jury usually meets in a special, private room. 

Grand jury proceedings are formal, but less formal than a trial. 

Unlike a trial jury, a grand jury does not sit to hear just a single 

case. Once a grand jury starts hearing evidence on a particular 
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investigation, they do not have to finish that investigation before 

they begin another. A grand jury could hear evidence on case A 

in the morning, case B in the afternoon, and then continue on 

case A again the following day. A grand jury may not meet 

every day, and a grand jury may not always be in session in 

your area.

The grand jury serves under the guidance of the AUSA. 

While the grand jury is empanelled by a district court judge and 

legally functions under the judge‘s supervision, the AUSA 

presents the case to the grand jury, calls and examines 

witnesses, issues subpoenas in the name of the grand jury, and 

presents the proposed indictment.

Grand jury proceedings are secret and not open to the 

public. Grand jury secrecy ensures that untested and 

uncorroborated information is not leaked to the public. Secrecy 

also helps witnesses be more forthcoming and preserves the 

integrity of a criminal investigation. (The details of grand jury 

secrecy principles are discussed in a later section.) When 

testimony is presented to the grand jury, only certain people 

may be present: the AUSA; one witness at a time; an interpreter 

(if needed); a court reporter; and the members of the grand jury. 

Officers who testify will not be present to hear the testimony of 

other witnesses. Neither the target of a grand jury, nor the 

target‘s attorney, has the right to be present. Even if the target 

testifies, the target‘s attorney is not allowed to be present; 

however, at the AUSA‘s discretion the target may be allowed the 

opportunity to consult briefly with his attorney outside of the 

grand jury room. When the grand jury is deliberating and 

voting on the indictment, only the grand jury members may be 

present.

A ―target‖ is a possible defendant. Infrequently, the AUSA 

may invite the target to testify before the grand jury. The target 

may refuse to testify if the testimony would be incriminating. 

The target could be given immunity and be compelled to testify, 

but that is rarely done because immunized testimony cannot be 

used against the target later on.
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The AUSA presents evidence to the grand jury. The 

evidence will consist of witnesses, documents, and other 

evidentiary items that are subpoenaed by the grand jury or that 

may be voluntarily submitted by a witness before the grand 

jury. The grand jurors may also ask questions. Because there 

is no defense counsel present, there is no cross-examination. 

Because a grand jury hearing is not a trial, the Federal Rules of 

Evidence (with the exception of privileges) do not apply. This 

means that hearsay may be used, and that the AUSA is not 

required to lay a full foundation for evidence. In a ―routine‖ 

case, a one-agent presentation may be sufficient even though 

many officers worked the case. Because the burden of proof at 

a grand jury is only probable cause, an AUSA might not present 

all the available evidence. Nevertheless, the Department of 

Justice policy is that indictments are not to be sought unless 

the responsible AUSA has determined that the evidence, viewed 

in its totality, constitutes proof beyond a reasonable doubt of 

the defendant‘s guilt, the threshold of proof necessary for the 

jury to convict.

Though grand jury proceedings are secret, if a witness 

testifies at both a grand jury and the trial, the defense will 

receive a copy of the witness‘s grand jury testimony under the 

Jencks Act (addressed later in this chapter). You must be 

accurate in your testimony because you may and likely will be 

cross-examined concerning any conflicts between your trial and 

grand jury testimony.

A ―true bill of indictment‖ requires the agreement of at 

least 12 of the grand jurors that there is probable cause that a 

crime was committed and that the defendant committed it. If 

the grand jury votes a true bill, the foreperson and AUSA sign 

the indictment. The indictment is then ―returned‖ (reported) to 

the judge in open court unless the indictment is sealed. Once 

an indictment is returned, the indictment may be used to 

obtain an arrest warrant or summons. The warrant or 

summons will be signed by the clerk of court. 

If less than 12 of the grand jurors vote for indictment, a 

―no bill‖ results, and that is reported to the judge. If the grand 
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jury returns a no bill, the case may be presented again to the 

same or a different grand jury. This sometimes requires 

presentation of additional evidence and approval of senior DOJ 

officials.

D. Sealed Indictments

Ordinarily, an indictment is returned in open court 

making it public. The AUSA may request that the judge keep 

the indictment secret until the defendant is in custody. This is 

a valuable tool. In many cases, especially those involving 

multiple defendants, if indictments are made public or 

defendants are arrested at different times, other defendants 

may flee or destroy evidence. You may also be involved in cases 

with indictments being sought in several districts. By having 

an indictment sealed, you may coordinate multiple arrests to 

avoid tipping off defendants. Rule 6(e)(4).

E. Post-Indictment Grand Jury Powers

The purpose of a grand jury is to investigate crime and 

return indictments. Once an indictment has been returned on 

a charge, the power of the grand jury to investigate that charge 

ends. This rule means that the grand jury may not be used 

solely to obtain additional evidence against a defendant who 

has already been indicted. After indictment, however, the grand 

jury may issue subpoenas if the investigation is to seek a 

superseding (modified) indictment, the indictment of additional 

defendants, or indictment of additional crimes by an alreadyindicted defendant. In addition, the grand jury may not be used 

solely to assist the AUSA in pre-trial discovery or trial 

preparation.

XI. Grand Jury Subpoenas

A. Power and Flexibility of Grand Jury Subpoenas

Grand juries have the power to subpoena testimony and 

other evidence. What a grand jury may subpoena is often 

beyond your reach. Consider the following situations about 
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how you often collect evidence and in parenthesis, the 

limitations you may face.

You may seek consent to search. (But the person 

may refuse consent.)

A witness may agree to an interview. (But you 

cannot force a person to submit to an interview.)

You may request a search warrant. (But there may 

not be probable cause for the warrant.)

You may get a court order to obtain information. 

(But the request may take too long, or the judge 

may refuse to issue it.)

In the above examples, you should consider whether a 

grand jury subpoena would meet your needs. In addition,

subpoenas may be used to obtain the following (this list is by no 

means complete): (1) corporate records that would reveal 

evidence of a crime; (2) a copy of an apartment lease or car 

rental contract that you need; (3) fingerprints, handwriting or 

voice exemplars, or hair samples; (4) phone records to see what 

calls were made; (5) bank or credit card company records; (6) 

shipping records from interstate carriers.

B. Types of Grand Jury Subpoenas (Rule 17)

A subpoena Ad Testificandum commands the appearance 

of a witness to testify. A subpoena Duces Tecum, commands 

the person to produce specific books, papers, data, objects or 

documents designated in the subpoena and to testify about 

them. A sample grand jury subpoena is in the Additional 

Resources section of the text.

C. Service of Subpoenas

While the Rules specifically provide for service by U.S. 

Marshals, you may, and often will, serve subpoenas in your own 

cases. Unlike a summons that may be served upon a ―person of 
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suitable age and discretion‖ followed by mailing the summons, 

a subpoena must be personally served upon the person named 

in the subpoena. Substitute service is not permitted. The 

failure to comply with a properly served subpoena is punishable 

as contempt of court.

D. Quashing or Modifying a Subpoena

A person who has been subpoenaed to provide 

information and who is subject to a privilege (such as the 5th 

Amendment or the spousal privilege) or who otherwise objects 

to the subpoena may go to court to ―quash‖ (cancel) the 

subpoena. The court may either grant or deny such a motion to 

quash, or may modify the subpoena to limit what the person 

must provide.

E. Legal Requirements for a Subpoena

The item or testimony sought must be relevant to a grand 

jury investigation. Relevance is a much lower standard than 

probable cause. In the case of a subpoena Duces Tecum, the 

items sought must be particularly described so the person 

subpoenaed can comply. The production of the item also may 

not be ―unreasonably burdensome.‖

F. Limitations of Grand Jury Subpoenas

A grand jury may only investigate crimes in the 

district where they sit.

A subpoena may not be used to investigate civil 

(non-criminal) matters.

Fifth Amendment (self-incrimination) and other 

privileges apply. A subpoena may not compel a 

person to be a witness against himself if their 

testimony would tend to incriminate him. Persons 

who legitimately claim a privilege against selfincrimination may be compelled to testify if given a 

grant of immunity. If immunized, however, the 
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testimony may not be used against that witness 

though it could be used against another. In 

addition, a subpoena may not compel disclosure of 

information that is subject to other recognized 

privileges (attorney-client, psychotherapist-patient, 

husband-wife, and clergy-communicant). DOJ 

requires special permission before issuing 

subpoenas to the media and to non-target 

attorneys, doctors, and members of the clergy. The 

AUSA will have the details explaining how this can 

be accomplished.

A subpoena may not be used to compel a person to 

submit to an interview. For example, believing that 

a witness might not give an interview, you serve a 

subpoena on the witness implying that if the 

witness submits to an interview, you will have the 

subpoena withdrawn. That is an improper use of 

grand jury powers. On the other hand, if you serve 

a subpoena on a person, and if the witness then 

indicates willingness to be interviewed, you may 

lawfully conduct the interview. Your AUSA may 

thereafter release the witness from the necessity of 

appearing before the grand jury to testify.

Subpoenas may not be issued to investigate the 

offense(s) that have already been indicted.

While the grand jury may be used to investigate 

crimes such as harboring or escape, DOJ policy 

prohibits its prosecutors from using the grand 

jury‘s subpoena power solely to aid in locating and 

arresting fugitives.

G. What to do when a Serving a Subpoena may result 

in the Destruction of Evidence - Using a Search 

Warrant

In some cases, you may have reason to believe that a 

person served with a subpoena for documents or other evidence 
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may destroy the evidence or falsely deny having the subpoenaed 

item(s). With the approval of a U.S. Attorney, you may obtain a 

―forthwith‖ subpoena when there is a risk of flight or 

destruction of evidence. A forthwith subpoena must be 

approved by a Judge and, if approved, requires the recipient‘s 

immediate compliance with the production demands within the 

subpoena. Even using a forthwith subpoena, however, there 

still may be some opportunity to destroy evidence.

When a subpoena would allow a person to destroy or alter 

evidence, or falsely claim they do not have the item, you should 

consider obtaining a search warrant. A search warrant has 

several advantages over a subpoena: you select when the search 

warrant is executed; you can find the item yourself, thereby 

denying the suspect an opportunity to destroy the evidence; 

evidence found in plain view during the search can be lawfully 

seized; and evidence obtained by a search warrant is not 

subject to grand jury secrecy rules.

Subpoenas, on the other hand, are easier to obtain 

because they do not require probable cause and can usually be 

obtained by contacting the AUSA‘s office.

H. The Mechanics of Obtaining a Subpoena

The exact procedure varies in each district. Ordinarily, 

after the grand jury has been empanelled, subpoenas are issued 

and signed in blank by the clerk of court. The AUSA or a grand 

jury subpoena coordinator in the AUSA‘s office keeps the 

subpoenas. The AUSA decides if a subpoena will be issued. 

When you need a subpoena, contact the AUSA‘s office and 

request one.

I. Inspector General (IG) Subpoenas

In addition to grand jury subpoenas, IG subpoenas might 

also be available. Most IG subpoenas are authorized by the 

Inspector General‘s Act, 5 USC App. §6(a)(4). The following text 

box contrasts some aspects between IG and grand jury 

subpoenas.
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GJ: Secrecy rules apply (Rule 6(e)).

IG: No GJ secrecy rules

GJ: Criminal matters only.

IG: Criminal or civil matters

GJ: Ad testifcandum or duces tecum

IG: Duces tecum only.

GJ: Can obtain delay in notice in certain banking records.

IG: Person will be notified when certain bank records 

subpoenaed.

GJ: Can be relatively easy to obtain.

IG: Sometimes requires executive level approval.

XII. Secrecy of Grand Jury Proceedings (Rule 6(e)(2))

Rule 6(e)(2) requires that grand jury proceedings, and

―matters occurring before the grand jury,‖ may not be publicly 

disclosed and, subject to very specific exceptions noted below, 

must remain secret. The purpose of this secrecy rule is to 

encourage witnesses to come forward and testify freely and 

honestly, to minimize the risk that prospective defendants will 

flee or thwart investigations, and to protect accused persons 

who are ultimately exonerated from unfavorable publicity.

The following items are protected by grand jury secrecy 

rules, and you cannot disclose the item unless authorized to do 

so. Collectively, these items are known as ―matters occurring 

before the grand jury,‖ or simply, ―grand jury matters:‖

The names of witnesses (including that you were a 

witness);

The testimony of a witness (including your own 

testimony);

Documents and other items that were subpoenaed 

by the grand jury; and
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Other grand jury matters including information 

provided by the AUSA, questions by grand jurors, 

and what occurred in front of the grand jury.

A. Exceptions to Rule 6(e)

Exceptions to Rule 6(e)‘s secrecy requirement are as follows:

1. The Non-Government Witnesses Exception

A private citizen (non-government employee) who testifies 

before a grand jury may lawfully disclose that they testified and 

the subject matter of their own testimony.

2. District Court or AUSA Disclosure

A district court judge can order disclosure of grand jury 

matters. Typically, with notice to a district court judge, the

AUSA controls disclosure of grand jury matters. Requests to a 

district court judge are processed by the AUSA and do not 

involve you. The remainder of this section will discuss only 

release of grand jury matters by the AUSA.

3. Access to Grand Jury Matters

The existence of grand jury matters is of little value 

unless you can have access and use it. Grand jury matters, 

however, may not be released to just anyone and may be 

released only for limited purposes on a ―need to know‖ basis. 

The AUSA can give the following groups access to grand jury 

matters for the purposes indicated:

Federal and state officers for the purpose of 

enforcing federal criminal law. Grand jury matters 

cannot be released for civil law purposes.

Another AUSA for purposes of enforcing federal 

criminal laws.
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Another grand jury. If a grand jury in District A 

has matters useful to a grand jury investigation in 

District B, the AUSA may authorize disclosure of 

grand jury matters to the grand jury in District B.

Under the Jencks Act and Rule 26.2, the grand jury 

testimony of a person who later testifies at a trial or 

hearing will be provided to the defense. (The 

Jencks Act and Rule 26.2 are discussed thoroughly 

in a later section.)

The Patriot Act, Title II, Sec. 203a - Foreign 

intelligence and other persons and entities. There 

are other, limited situations when grand jury 

matters may be revealed that are beyond the scope 

of this course. For example, foreign intelligence 

information may be given to a wide variety of 

entities. Rule 6(e)(3)(C) permits the disclosure of 

grand jury information involving intelligence 

information to any federal law enforcement, 

intelligence, protective, immigration, national 

defense, or national security official in order to 

assist the official receiving that information in the 

performance of official duties. This section requires 

notice to the court of the agencies to which 

information was disseminated and adds a definition 

of ―foreign intelligence information‖ to Rule 6(e).

4. The 6(e) list

You need, and may use, grand jury matters to conduct 

your criminal investigations. The AUSA who is assigned to your 

investigation may authorize you to have access to grand jury 

materials for that purpose and on a case-by-case basis. If you 

need access to grand jury matters, request approval from the 

AUSA. Officers from other agencies, or those in your chain of 

command who need grand jury information, must also obtain 

approval from the AUSA.
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The AUSA is required to maintain a list of persons the 

AUSA has authorized to see grand jury matters. This is 

commonly known as ―the 6(e) list.‖ You may disclose grand jury 

matters only to those on the 6(e) list.

Consider the following examples when grand jury matters 

may be disclosed:

You are on a task force with officer B. You are on 

the 6(e) list; officer B is not. Officer B may not have 

access to grand jury matters until officer B is 

placed on the 6(e) list by the AUSA.

You testified as a grand jury witness targeting a 

local politician. While out with friends at dinner, 

your friends (who are not on the 6(e) list) start 

discussing rumors that the politician is about to be 

indicted. You may neither disclose that you were a 

grand jury witness nor reveal your testimony or 

other grand jury matters.

Information obtained independently of the grand jury is 

not subject to the restrictions of Rule 6(e), even if the same 

information has previously been obtained using the grand jury 

or its subpoena power. For example, a copy of Document X was 

obtained through a grand jury subpoena. You seized another 

copy of Document X during the execution of a search warrant. 

Copy 2, which was obtained by a source independent of the 

grand jury, may be given to anyone who needs to have it. 

Nevertheless, Rule 6(e) still prohibits your disclosure to anyone 

not on the 6(e) list that Copy 1 was obtained by the grand jury.

―Mixed information‖ poses different problems. Consider 

an investigation in which you prepare a financial analysis that 

shows that the target of an investigation has been spending 

more money than all known sources of income combined. Your 

analysis is based both upon documents subpoenaed by the 

grand jury as well as on documents and information from non 

grand jury sources. If your analysis does not identify or refer to 

the source of information as grand jury matter, you may reveal 
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the analysis to those not on the 6(e) list. However, if the 

analysis does reveal that grand jury matters are involved, you 

may only disclose it to those on the 6(e) list.

In general, government attorneys who are prosecuting a 

civil suit on behalf of the United States, or who are defending a 

civil suit against the United States, may not be given access to 

grand jury matters to help prepare the government‘s case. That 

is because grand jury matters ordinarily may not be used for 

civil proceedings. (In rare instances based upon specific needs 

and legal issues not necessary to cover here, a District Court 

judge (not the AUSA or even a Magistrate Judge) may enter an 

order allowing such disclosure.)

XIII. Documents Required to Formally Accuse a Defendant

Before trial, the government, defendant, and the court 

must know exactly the offenses with which the defendant is 

charged. The charging document informs the parties of the 

exact charges. The charges at trial may be different than the 

ones in the complaint or information that was used at the initial 

appearance or to obtain an arrest warrant or summons. The 

charges may also be different than the ones for which the 

defendant was originally indicted, because the defendant may 

have been indicted for additional offenses, or the AUSA may 

have obtained a superseding indictment.

The proper charging document depends on the level of 

offense charged and the court where the case will be tried. 

Capital felonies must be charged by indictment; a defendant 

may not waive indictment in a capital case. Non-capital felonies 

are normally charged against a defendant in an indictment. 

This is because of the defendant‘s right to an indictment as set 

forth in the Fifth Amendment. The defendant may waive that 

right, however, and, if he does, he may be tried for non-capital 

felonies on an information prepared by the AUSA. This typically 

occurs when a defendant enters into a plea bargain, waives 

indictment and agrees to be charged by an information as part 

of the agreement.
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Misdemeanors may be charged by a criminal complaint. 

When a misdemeanor is to be tried in district court, the AUSA 

will ordinarily prepare an information even if there is already a 

criminal complaint. AUSAs do this because they prefer a more 

―formal‖ charging document when before a district court judge 

for a trial. If the case is old, dismissing the complaint and filing 

an information will restart the speedy trial clock. Petty offenses 

in magistrate court may be tried on a citation or violation 

notice. These are the ―minimum charging documents.‖ A case 

that only requires a criminal complaint could be tried on an 

indictment, but that would rarely occur.

Review of charging documents:

Type of Offense Court Minimum

Charging 

Document

Capital District Indictment only

Non-capital Felony District Indictment, unless 

waived, and then 

by information

Misdemeanor District Information

Misdemeanor Magistrate Complaint

Petty Offenses Magistrate Citation or 

violation notice

A defendant charged with a Class A misdemeanor will be 

tried in magistrate court if the defendant consents. If a 

defendant charged with a Class A misdemeanor does not 

consent to be tried in magistrate‘s court, the defendant will be 

tried in district court. When a misdemeanor is tried in district 

court, the AUSA will ordinarily prepare an information even if 

there is already a criminal complaint.

XIV. Defense Access to Government Evidence

In preparing for trial, the defense is entitled by law to 

know what evidence the government has so that it may attack 
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the government‘s case and mount a defense. Commonly 

referenced as ―discovery material,‖ this information must be 

disclosed to the defense under one or more of the following 

sources of authority: (1) under Federal Rule of Criminal 

Procedure 16; (2) through the Brady doctrine; (3) under the 

Giglio case, and (4) under the Jencks Act/Rule 26.2. 

Additionally, most District Courts have local discovery rules 

that may require additional categories of information to be 

disclosed by the government and/or defense and that impose 

upon the parties certain time requirements for discovery. 

A. Discovery under Rule 16

Upon a request by the defense at or following the 

defendant‘s arraignment, the government must disclose to the 

defense, and make the items available for inspection and 

copying, evidence in its possession, or of which it has 

knowledge, that falls within certain categories of information. 

The defense almost always makes a discovery request, so Rule 

16 materials are almost always provided to the defense. Rule 

16 discovery covers that which is in the possession and control 

of the government, that which the government should know, 

and in some instances, what the government could know.

Discovery requests are made by the defense to the AUSA. 

AUSAs, not you, respond to discovery requests. Your role in 

discovery is to keep the AUSA informed about all the 

information in the case so the AUSA is aware of the materials in 

the government‘s possession that must be disclosed to the 

defense.

Evidence discoverable under Rule 16 covers most 

statements made by the defendant to include:

Any recorded or written statement made by the 

defendant that is relevant to the case to include any 

grand jury testimony. This includes not only 

recorded or written statements to law enforcement, 

but also to private citizens. For example, e-mails or 

letters between the defendant and friends, in the 

possession of the government, are discoverable.
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Oral statements made to a person the defendant 

knew was a government agent at the time the 

statement was made. Oral statements a defendant 

makes to an undercover officer are not 

discoverable.

The defendant‘s prior criminal record, to include 

any arrest record.

Documents and tangible objects, to include books, 

papers, documents, data, and photographs that are 

important to defense preparation of the case, or 

which the government intends to offer at trial.

Items obtained from or that belonged to the 

defendant such as evidence that was subpoenaed 

from another or discovered during a search of the 

defendant or the defendant‘s property.

Reports of examinations and tests such as 

handwriting, ballistic, or fingerprint comparisons.

Items that are not discoverable under Rule 16 include:

Reports of witness interviews or recordings (written 

or electronic) statements. (If a witness testifies at a 

hearing or trial, however, the Jencks Act requires 

that the government then disclose any prior 

recorded (written or electronic) statements by that 

witness to the extent that such recorded 

information is relevant to the substance of that 

witness‘ testimony.)

Internal government documents made by you or the 

AUSA. This would include reports, memoranda, 

MOIs, and ROIs.

If the defense makes a discovery request, the government 

is also entitled to certain information (―reciprocal discovery‖) 

from the defense. This will be handled by the AUSA.
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B. The Brady Doctrine

In the Supreme Court case of Brady v. Maryland5, the 

defendant was convicted and sentenced to death for first-degree 

murder committed in the course of a robbery. The government 

knew, but Brady did not, that Brady‘s accomplice had confessed 

to the actual murder. The United States Supreme Court later 

reversed Brady‘s conviction because this information was not 

disclosed to the defense and thus the ―Brady Doctrine‖ was 

born.

The Brady doctrine requires that the government tell the 

defense of any exculpatory (favorable) evidence known to the

government. Exculpatory evidence is that which would cast 

doubt on the defendant‘s guilt or might lessen the defendant‘s 

punishment. The defense does not have to request the 

information - if the government knows of it, it must be 

disclosed. Brady materials must be provided a reasonable time 

in advance of trial so the defense may have a reasonable 

opportunity to decide how to use the information. 

C. Disclosure under Giglio

The Supreme Court case of United States v. Giglio

requires the government to disclose information that tends to 

 

5 Cases named in this chapter without a case cite are briefed in the 

companion book, Legal Division Reference Book.

Examples of Brady Materials

Evidence that another may have committed the charged 

offense.

Information supporting an alibi.

Information supporting an affirmative defense 

(such as entrapment or self defense.)

Exculpatory (favorable) material.

- The defendant may not be guilty,

- Information that could lessen the defendant‘s 

punishment.
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impeach any government trial witness, including you. 

―Impeachment‖ is information that contradicts a witness or 

which may tend to make the witness seem less believable. You 

must tell the AUSA about potential Giglio information so AUSAs 

can decide what must be disclosed.

Information that may show the following must be 

disclosed to the AUSA:

Affects the credibility or truthfulness of the witness 

to include having lied in an investigation, character 

evidence of untruthfulness, or any bias.

Payment of money for information or testimony.

Plea agreements or immunity.

Past or pending criminal charges.

Specific instances of inconsistent statements.

Findings of a lack of candor during an 

administrative inquiry.

Any credible allegation of misconduct that reflects 

upon truthfulness or bias that is the subject of 

a pending investigation. Allegations made by a 

magistrate judge, district court judge, or 

prosecutor, and allegations that received 

considerable publicity must be disclosed to the 

AUSA even if determined to be unsubstantiated

Information disclosed to the AUSA does not automatically 

go to the defense. The defense does not have an automatic and 

unrestricted right to see your personnel files. The government 

may be required to review files for Giglio information and 

produce it for an in camera inspection (by the judge only). The 

judge will decide if the defense will get the information.
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D. The Jencks Act and Rule 26.2

The Jencks Act requires the AUSA to give the defense any 

prior ―statements‖ of a trial witness that are in the possession of 

the government, so the defense can conduct an effective crossexamination of the witness. 18 U.S.C. § 35006

. The Jencks Act 

requires the AUSA to deliver prior statements only after a 

witness testifies and before cross-examination begins. To avoid 

unnecessary delays during the trial, however, the AUSA usually 

will give Jencks Act statements to the defense in advance of 

trial.

Jencks Act ―statements‖ include: 

A written statement made and signed, or otherwise 

adopted, by the witness, such as an affidavit or a 

letter. If you show a witness notes that you have 

taken during an interview, for example, to have the 

witness confirm the accuracy of the notes, your 

notes may hereby become that witness‘ ―adopted 

statement‖ for Jencks Act purposes.

A stenographic, mechanical, electrical, or other 

recorded statement.

A substantially verbatim transcript of an oral 

statement made at the time the witness was 

speaking.

The transcript of the witness‘ grand jury testimony.

Your own notes may qualify as a Jencks Act statement in 

certain circumstances such as stated above when a witness is 

shown the notes and vouches for their accuracy (an adopted 

statement.) You must therefore safeguard your notes, including 

original rough notes of interviews and other activities, even if 

they are later formalized or included in other reports. 

 

6 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Determine your agency and local AUSA policy concerning 

safeguarding notes.

Rule 26.2 extends Jencks Act requirements beyond trials 

to other court proceedings such as suppression or detention 

hearings. While the statements of officers and other witnesses 

may not be discoverable by the defense under Rule 16, Brady, 

or Giglio, anytime a witness testifies at a trial or hearing, prior 

―statements‖ of that witness must be given to the defense under 

the Jencks Act or Rule 26.2.

Example 1: A witness testifies at grand jury. Grand jury 

testimony is secret and will not be given to the defense. If the 

grand jury witness testifies at a hearing or trial, however, the 

grand jury testimony will be given to the defense under the 

Jencks Act or Rule 26.2.

Example 2: The signed or adopted statement of a 

government witness that he saw the defendant commit a crime 

(non-exculpatory statement) is not discoverable. If that witness 

testifies at a trial or hearing, however, the statement must be 

given to the defense.

E. Continuing Duty to Disclose

Complying with discovery and disclosure requirements is 

a continuing obligation. If the defense asks for an item that 

does not exist at the time of the request, but later comes into 

existence, the government must disclose it once it learns that 

the evidence exists. For example, if a ballistics test has not 

been performed at the time of a discovery request, but later the 

test is performed, the government must disclose the results of 

the test.

F. Sanctions for Non-Compliance

Failure to comply with discovery and disclosure 

requirements can have drastic consequences. While the AUSA 

is responsible for fulfilling discovery requirements, you must 

ensure the AUSA has all the information so that the AUSA can 
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comply. Failing to comply with discovery requirements can 

result in government evidence being excluded, a trial 

continuance for the defense to evaluate newly discovered 

information, mistrial, and even a reversal of conviction if the 

non-compliance is discovered after trial.

XV. Venue and Transfer

It is important for you to determine the venue for any 

offense under investigation. Venue controls what judge can 

perform certain functions, where you must obtain court 

documents, and where the defendant can be tried.

Jurisdiction is the power of a court to try a case. For 

example, a federal district court judge has the authority to try 

any federal criminal case. Venue means place. The U.S. 

Constitution provides that a defendant has the right to have his 

case tried in the state and district where the crime occurred. 

Venue affects how you perform your duties. Each of the 

actions below must be performed in the district where the crime 

occurred (venue):

Return of a grand jury indictment.

Presenting a criminal complaint or filing an 

information.

Obtaining an arrest warrant or summons.

In most cases, a search warrant must be obtained 

in the district where the evidence is located.

Trial of the defendant unless the judge permits 

otherwise.

In a typical case, venue is where the unlawful act 

occurred. For offenses begun in one district and completed in 

another, venue is in any district where the offense was begun, 

continued, or completed. 18 U.S.C. § 3237. In conspiracy 
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cases, venue is in the district in which the agreement, any overt 

act in furtherance of the agreement, or termination of the 

conspiracy occurred. Special statutes control venue for those 

federal offenses that occur outside of the jurisdiction of the U.S. 

or upon the high seas.

The defendant will be tried in the district where the crime 

occurred unless one of the below exceptions apply. 

Transfer from the District for Plea and Sentence -

Rule 20. If a defendant is arrested in a district 

other than the one where the crime occurred, the 

defendant will ordinarily be removed to the district 

where the crime occurred for trial. At the 

defendant‘s request, trial can be in the district of 

arrest (the case will be transferred to the district of 

arrest) if guilt is not contested, and the AUSAs and 

judges in both districts agree. 

Change of Venue. (Transfer for Trial, Rule 21) The 

defense may request a change of venue. If the 

judge approves the request, the place of trial will be 

moved to another district. A request for a change of 

venue is usually based on (a) prejudice in the 

district of venue so great that the defendant cannot 

receive a fair or impartial trial, or (b) the 

convenience of the parties and in the interest of 

justice to move the place of trial.

To state and local officers, ―extradition‖ involves moving a 

defendant between states within the United States to stand 

trial. In the federal system, extradition is moving a defendant 

into the United States (or out of the United States) for trial. In 

other words, federal extradition is not the movement of a 

defendant between states, but between the United States and 

another nation. The process is a complicated one involving the 

Departments of State and Justice.
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XVI. The Statute of Limitations and Speedy Trial Act

A. Statute of Limitations

A statute of limitations prohibits prosecution of a 

defendant after a certain period of time has passed. The statute 

is designed to protect individuals from having to defend against 

charges when the facts may have become obscured by time, or 

defense witnesses may have become unavailable to testify, and 

to encourage law enforcement officials to promptly investigate 

suspected criminal activity. If the defendant is indicted or an 

information is filed within the statute of limitations, then the 

prosecution may proceed. If not, then prosecution is barred.

The general statute of limitations requires the government 

to indict or file an information within five years from the date of 

the offense. 18 U.S.C. § 3282. Some crimes have their own 

statute of limitations. For example, the statute for Title 26 tax 

crimes is generally six years; arson is 10 years. There is no 

statute of limitations for a capital offense.

It is helpful to see the statute as a clock. The clock 

starts, that is, the statute starts to run, the day after the offense 

is completed. The clock runs until the defendant is indicted or 

an information is filed. If at the time of indictment or 

information the clock is not yet at the 5-year point, prosecution 

may proceed. If the clock has reached or passed the 5-year 

point, prosecution is barred. A statute of limitations runs even 

though the government does not know the defendant‘s identity.

An example of the computation for the general statute of 

limitations:

8/31/2000 Crime committed.

9/1/2000 First day of running of the statute.

8/31/2005 Last day to secure an indictment or 

information. 

9/1/2005 Prosecution barred, unless indictment 

or information has been obtained.
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The statute of limitations does not run while a defendant is a 

fugitive from justice. Using the clock example, the clock stops 

while the defendant is a fugitive. This is known as ―tolling the 

statute.‖ A fugitive is a person who commits an offense and 

then intentionally flees from the jurisdiction of the court where 

the crime was committed, or who departs from his usual place 

of abode and intentionally conceals himself for the purpose of 

avoiding prosecution. Fleeing from justice means the person 

has left to avoid trial and punishment.

An example of the computation for the general statute of 

limitations in a fugitive case: 

8/31/2000 Crime committed.

9/1/2000 First day of running of the statute.

10/1/2000 - 9/30/2001 Defendant is a fugitive 

from justice, and the statute is tolled.

8/31/2006 Last day to secure indictment or 

information.

9/1/2006 Prosecution barred, unless indictment 

or information obtained.

Some offenses are called ―continuing offenses‖ which 

means that though the crime occurred on a certain day, the 

statute of limitations does not begin to run until a later date. 

For example, in a conspiracy case, the statute begins to run on 

the date of the last overt act even though the agreement may 

have occurred earlier. Certain frauds are also continuing 

offenses. The statute of limitations for mail or wire fraud, for 

example, begins to run on the date of the last mailing or wire 

transmission in furtherance of the scheme to defraud.

B. The Speedy Trial Act: (18 U.S.C. §§ 3161-3174)

The Speedy Trial Act establishes time limits for bringing a 

defendant to trial after arrest or service of a summons. The 

statute ensures the timely progression of the case and serves to 
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implements the Sixth Amendment ―...right to a speedy and 

public trial.‖

No more than one hundred (100) days may elapse 

between date of arrest or service of a summons and the first day 

of the trial. The 100-day rule has two separate components:

a) An indictment or information must be filed within 

30 days of the date of arrest or service of a 

summons.

b) The trial must begin within 70 days of the public 

filing of the indictment or information, or from the 

date the defendant appears before the court in 

which the charge is pending, whichever is later.

Many events may delay the start of a trial yet be excluded 

in calculating whether the Speedy Trial Act has been violated. 

These exclusions usually involve procedural matters that 

concern only the AUSA and are beyond your control. By way of 

example, the time to litigate pretrial motions or to perform 

necessary mental evaluations of a defendant would be excluded 

from Speedy Trial Act time.

You must appreciate that when you arrest a defendant, 

you have triggered the Speedy Trial Act. That may, in turn, 

cause the AUSA to try a case before it is ready. Therefore, it is 

critical that you coordinate with the AUSA on the timing of 

discretionary arrests. If an immediate arrest is necessary to 

prevent harm, preserve evidence, prevent flight, or take 

advantage of search incident to arrest rules, notify the AUSA 

immediately.

XVII. Officers and Presentencing Investigations and Reports

In the federal system for non-capital cases, defendants 

are sentenced by the trial judge. The judge will conduct a 

sentencing hearing. In a capital case (where the death penalty 

is authorized by statute), the judge may impose death if a jury 

recommends it. The defendant may waive the participation of a 

jury.
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Each district has a U.S. Probation and Pretrial Services 

Office. Before the sentencing of a defendant, a U.S. Probation 

Officer will conduct a Pre-Sentence Investigation (PSI) that 

consists of interviewing witnesses and reviewing documents. 

Thereafter, the U.S. Probation Officer will prepare a 

presentencing report (PSR). The sentencing judge will use that 

report in determining an appropriate sentence. The report may 

contain a specific sentencing recommendation.

At a minimum, the PSR will include the defendant‘s 

history and characteristics, including any prior criminal record, 

financial condition, and any circumstances affecting the 

defendant‘s behavior that may be helpful in imposing sentence.

You may be asked to provide certain information to the 

U.S. Probation Officer in the form of a witness interview or 

otherwise. You should comply with these requests. While most 

of the information for a PSR is available through sources other 

than you, some may only be available using the investigative file 

prepared by you. If you have information that would assist the 

probation officer, make it available, and assist Probation 

Services to ensure that the report contains complete and 

accurate information.
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NOTES
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Chapter Nine

Fourth Amendment

I. INTRODUCTION.................................................................307

II. GOVERNMENTAL ACTION....................................................307

III. A SEARCH .......................................................................308

A. Reasonable Expectation of Privacy (REP)........................... 308

1. The Test....................................................................... 309

2. Common REP Areas..................................................... 310

3. Methods and Devices ................................................... 317

IV. A SEIZURE.......................................................................318

A. Police-citizen Encounters .................................................. 318

1. Voluntary Contacts...................................................... 318

2. Terry Stops .................................................................. 319

3. Terry Frisks ................................................................. 324

4. Detaining Vehicles ....................................................... 326

5. Arrests......................................................................... 328

V. USE OF RACE...................................................................328

A. The Constitutional Framework.......................................... 328

B. Guidance .......................................................................... 329

1. Routine or Spontaneous Activities ............................... 329

2. Specific Investigations.................................................. 330

C. Threats to National Security.............................................. 331

1. Compelling Government Interest.................................. 332

2. Exceptional Circumstances.......................................... 332

VI. PROBABLE CAUSE (PC) ......................................................333

A. Defining PC....................................................................... 333

B. The Test for PC ................................................................. 334

C. Establishing PC ................................................................ 334

1. Confidential Informants ............................................... 335

VII. THE EXCLUSIONARY RULE..................................................337

A. The Rule ........................................................................... 337

B. The Exceptions ................................................................. 338

1. No Standing to Object.................................................. 338

2. Impeachment............................................................... 338

3. Good Faith................................................................... 339

4. Foreign Searches ......................................................... 339

5. Inevitable Discovery ..................................................... 342

6. Miscellaneous Exceptions ............................................ 343
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VIII. THE PLAIN VIEW DOCTRINE................................................343

A. Lawful Position of Observation.......................................... 343

B. Incriminating Nature Immediately Apparent ..................... 344

C. Lawful Right of Access ...................................................... 344

IX. ARREST WARRANTS ..........................................................345

A. Upon Complaint................................................................ 345

B. Upon Indictment or Information........................................ 345

C. The Form .......................................................................... 346

D. Executing Arrest Warrants................................................ 346

E. Manner of Execution......................................................... 347

F. Warrant Return................................................................. 347

X. ARRESTS.........................................................................347

A. Authority .......................................................................... 348

B. On Outstanding Arrest Warrants ...................................... 349

1. Outstanding Federal Warrant ...................................... 349

2. Outstanding State Warrant.......................................... 349

C. Entering a Home ............................................................... 350

1. The Suspect‘s Home..................................................... 350

2. A Third-Party‘s Home................................................... 351

D. Warrantless Arrests .......................................................... 351

1. Felonies ....................................................................... 351

2. Misdemeanors ............................................................. 351

XI. KNOCK AND ANNOUNCE .....................................................352

A. The Statute ....................................................................... 353

B. The Primary Purposes ....................................................... 353

C. A Breaking ........................................................................ 353

D. Requirements.................................................................... 354

1. Knock .......................................................................... 354

2. Announce Authority and Purpose ................................ 354

3. Admittance Refused or Denied..................................... 354

E. Exigent Circumstances ..................................................... 356

F. Violation Does Not Lead to Suppression of Evidence ......... 357

G. No-Knock Warrants........................................................... 357

XII. PROTECTIVE SWEEPS ........................................................358

A. What is a Protective Sweep?.............................................. 358

B. Scope of a Protective Sweep .............................................. 358

1. Areas to be Searched ................................................... 358

2. Time Limit ................................................................... 359

C. Two Kinds of Protective Sweeps......................................... 359

1. ―Automatic‖ Protective Sweeps ..................................... 359

2. ―Extended‖ Protective Sweeps ...................................... 360

D. When Arrest Occurs Outside the Home............................. 360
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XIII. SEARCHES INCIDENT TO ARREST (SIA).................................360

A. Rationales......................................................................... 361

B. Requirements.................................................................... 361

C. Scope ................................................................................ 362

1. Arrestee‘s Person ......................................................... 363

2. Lunging Distance......................................................... 363

3. In a Vehicle.................................................................. 364

XIV. SEARCH WARRANTS ..........................................................366

A. Who May Request ............................................................. 366

B. Who May Issue.................................................................. 366

C. Jurisdictional Requirements ............................................. 367

D. The Neutral and Detached Requirement............................ 369

XV. AFFIDAVIT FOR A SEARCH WARRANT....................................369

A. Establishing a Nexus ........................................................ 370

B. Stale Information .............................................................. 370

C. Anticipatory Search Warrants ........................................... 371

D. Particularity - the Place to be Searched............................. 372

1. Residences................................................................... 372

2. Persons........................................................................ 373

3. Vehicles ....................................................................... 373

E. Particularity - the Persons or Things to be Seized.............. 373

F. Types of Items That Can Be Seized.................................... 374

G. False or Misleading Statements......................................... 375

XVI. TELEPHONIC SEARCH WARRANTS ........................................375

A. Purpose of Rule 41(d)(3) .................................................... 375

B. Telephonic Warrants and Exigent Circumstances ............. 375

C. Who can Issue .................................................................. 376

D. Procedural Requirements .................................................. 376

1. The Duplicate Original Warrant ................................... 377

2. Read It or Transmit It .................................................. 377

3. The Original Warrant................................................... 377

4. Warrants are Signed .................................................... 377

5. Enter Time of Execution .............................................. 378

E. Recording and Certification Requirements ........................ 378

1. Oath or Affirmation...................................................... 378

2. Verbatim Record.......................................................... 378

3. Certification................................................................. 378

XVII. EXECUTING SEARCH WARRANTS..........................................378

A. Who may Execute ............................................................. 379

B. When a Search Warrant May Be Executed ........................ 380

C. Use of Force ...................................................................... 381

D. Presenting the Warrant..................................................... 381

E. Answering a Telephone ..................................................... 382

F. Temporary Seizure of Handguns ....................................... 382
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G. Detaining the Occupants .................................................. 382

H. Frisking and Searching the Occupants ............................. 384

I. Permissible Search Locations............................................ 384

1. Premises, Outbuildings and Curtilage.......................... 385

2. Vehicles on Curtilage ................................................... 385

3. Containers ................................................................... 385

J. Damage or Destruction of Property ................................... 386

K. Preparing an Inventory...................................................... 386

L. Providing a Copy of the Warrant and Inventory ................. 387

M. Warrant Return................................................................. 387

XVIII. THE MOBILE CONVEYANCE EXCEPTION ................................387

A. Rationales............................................................................ 388

B. Prerequisites........................................................................ 388

C. No Exigency Required.......................................................... 389

D. The Timing .......................................................................... 389

E. The Scope............................................................................ 390

XIX. EXIGENT CIRCUMSTANCES .................................................391

A. Hot Pursuit.......................................................................... 392

B. Destruction or Removal of Evidence .................................... 393

C. Emergency Scene ................................................................ 394

XX. CONSENT SEARCHES .........................................................395

A. Requirements ...................................................................... 396

1. Voluntary........................................................................ 396

2. Actual or Apparent Authority.......................................... 398

B. Scope .................................................................................. 399

C. Third-Party Consent............................................................ 400

1. Husband-Wife................................................................. 400

2. Parent-Child ................................................................... 400

3. Roommates..................................................................... 401

XXI. INVENTORY SEARCHES ......................................................401

A. Justifications....................................................................... 402

B. Requirements ...................................................................... 402

1. Lawful Impoundment...................................................... 402

2. Standardized Policy ........................................................ 402

C. Scope .................................................................................. 403

D. Location .............................................................................. 403

XXII. ADMINISTRATIVE SEARCHES...............................................404

A. Sobriety Checkpoints........................................................... 404

B. Driver‘s License and Registration Checkpoints .................... 404

C. Information-Gathering Checkpoints .................................... 405

D. General Crime Control Checkpoints .................................... 405

E. Inspections of Businesses.................................................... 405
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F. Government Facility and Airport Searches ........................... 407

1. Security Checkpoints...................................................... 407

2. Terry Stops ..................................................................... 407

3. Consent.......................................................................... 408

G. Border Searches................................................................ 408

1. Categories of Intrusions ............................................... 409

2. Geographic limits......................................................... 411

*****

I. Introduction

The Fourth Amendment to the United States Constitution

states that:

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, 

and particularly describing the place to be 

searched, and the persons or things to be seized.

The Fourth Amendment contains two distinct clauses. 

The first requires that all searches and seizures be reasonable, 

while the second mandates that probable cause exist before 

search or arrest warrants may be issued, and that warrants 

particularly describe the place(s) to be searched and person(s) 

or thing(s) to be seized.

II. Governmental Action

The Fourth Amendment regulates the actions of 

government officials. The term ―government‖ does not solely 

refer to law enforcement conduct. Instead, the Fourth 

Amendment acts as a restraint on the entire government. The 

Supreme Court has never limited the Fourth Amendment‘s 

prohibition on unreasonable searches and seizures to 

operations conducted by the police. The Court has held the 

Fourth Amendment applicable to the activities of civil 
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authorities such as building inspectors, Occupational Safety 

and Health Act inspectors, firefighters entering privately-owned 

premises to battle a fire, and state hospital administrators.

The Fourth Amendment does not regulate private 

conduct, regardless of whether that conduct is reasonable or 

unreasonable. Evidence of a crime that is obtained through a 

private search may be admissible against a defendant, even if 

the private search was conducted illegally.

While the Fourth Amendment may not apply to a search 

by a private citizen, it does apply when that citizen is acting as 

an instrument or agent of the government. The issue in such a 

search necessarily turns on the degree of the government‘s 

participation in the private party‘s activities. That question can 

only be resolved in light of all the circumstances. In making 

this determination, the courts typically focus on three factors: 

(1) Whether the government knows of or acquiesces in the 

private actor‘s conduct; (2) whether the private party intends to 

assist law enforcement officers at the time of the search; and (3) 

whether the government affirmatively encourages, initiates, or 

instigates the private action.

III. A Fourth Amendment “Search”

The Fourth Amendment prohibits unreasonable 

―searches‖ and unreasonable ―seizures.‖ Because of this, you 

must first understand what exactly a ―search‖ or ―seizure‖ is for 

purposes of the Fourth Amendment. This section will focus on 

the definition of a ―search,‖ while the following section will 

discuss the legal definition of a ―seizure.‖

A. Reasonable Expectation of Privacy (REP)

Under the Fourth Amendment, a ―search‖ occurs when 

the government intrudes upon an individual‘s reasonable 

expectation of privacy (REP). If the government action does not 

intrude upon a person‘s REP, then no ―search‖ has occurred 

and the Fourth Amendment is not implicated. 
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1. The Test for REP

In Katz v. United States1 the Supreme Court established 

the standard for determining whether REP exists. The test for 

REP is two-pronged:

First, the individual must have exhibited an actual 

(subjective) expectation of privacy; and

Second, that expectation must be one that society 

is prepared to recognize as reasonable.

The absence of either prong of the test means that no 

REP exists and no ―search‖ has been conducted. It is not a 

―search‖ to observe conduct that occurs openly in public, such 

as on a public street. This same principle applies to 

perceptions made through hearing or smelling. For example, 

two people who meet and have a conversation in a public place, 

such as a restaurant, would not be protected from having their 

actions observed, or their conversations overheard, by others in 

the restaurant. Any claims of privacy under those 

circumstances would be unreasonable.

What a person seeks to preserve as private, even in an 

area accessible to the public, may be constitutionally protected. 

An individual who enters a public telephone booth and shuts 

the door would be entitled to privacy in the conversation. First, 

by entering the phone booth and shutting the door, the 

individual has exhibited a subjective expectation of privacy. 

Second, this expectation is one that society is prepared to 

recognize as reasonable, based on, among other things, the fact 

that a door on a phone booth exists to allow those who use the 

phone to prevent people outside the booth from overhearing the 

conversations going on inside. Using a bugging device to 

eavesdrop on such a conversation would violate REP. On the 

other hand, if the phone booth occupant‘s words could be 

overheard by a nosy eavesdropper outside the booth by 

 

1 Cases named in this chapter without a case cite are briefed in the 

companion book, Legal Division Reference Book.
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surreptitiously moving his unaided ear closer to a gap in the 

booth‘s door, there would be no REP in those overheard words.

Ownership of a given piece of property, while an 

important factor in determining whether REP exists, does not 

automatically justify an expectation of privacy.

2. Common REP Areas

Listed below are some of the more common REP areas 

and situations.

(a) The Body

Obtaining evidence directly from a person‘s body will, 

obviously, require a seizure of that person. Once lawfully 

seized, such as in an arrest, the issue of REP turns on whether 

the evidence sought is internal or external. It is wellestablished that a physical intrusion, penetrating beneath the 

skin, infringes on an expectation of privacy that society is 

prepared to recognize as reasonable. Obtaining blood, saliva, or 

urine samples from a person would constitute a ―search,‖ 

requiring a warrant, consent or exigency. This rule also applies 

to a breathalyzer test, or removing a physical object (such as a 

bullet) located beneath a person‘s skin. It does not constitute a 

―search‖ to obtain fingerprints, handwriting, or voice samples 

from a lawfully seized suspect. Any of these items, internal or 

external, can also be obtained from a subject that has not yet 

been seized if a search warrant is obtained. Fingerprints left 

behind by the suspect, such as on an interview table, are fair 

game for law enforcement with no Fourth Amendment issue.

(b) Vehicles

An individual‘s expectation of privacy in a vehicle depends 

on whether the exterior or interior of the vehicle is being 

examined. There is no expectation of privacy in the exterior of a 

vehicle, including the undercarriage. The owner/operator 

generally has REP for the interior of a vehicle, at least against

physical intrusion. You may lawfully observe an item sitting on 

the front seat in open view. This does not necessarily give you 
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the right to access the item seen, but it may provide the 

necessary probable cause to allow entry and seizure. Since

vehicle identification numbers (VIN) are required by law to be 

located in an area that can be observed from the exterior of the 

vehicle, there is no REP in the VIN.

A passenger in a vehicle that he neither owns nor leases 

typically does not have REP in that vehicle, although the 

passenger will retain an expectation of privacy in any personal 

property brought into the car with them (e.g., a purse or 

backpack). Such personal items are subject to a search or frisk 

when the same is authorized for the vehicle itself. A person 

listed as an authorized driver on a rental agreement will have 

REP in the vehicle, at least for the duration of the rental period. 

For a driver not authorized under the rental agreement, federal 

courts have taken different approaches to determining whether 

that individual has REP in the vehicle. Two federal appellate 

courts (the Eighth and Ninth Circuits) have held that an 

unauthorized driver who has the permission of the registered 

driver to operate the vehicle has REP. Three federal appellate 

courts (the Fourth, Fifth, and Tenth Circuits) have reached a 

different conclusion, looking solely to the rental agreement to 

determine who has REP in the vehicle. In these courts, an 

individual who is authorized to drive the vehicle will have REP, 

while any person not listed on the rental agreement does not. 

Finally, one federal appellate court (the Sixth Circuit) takes a 

―fact-based‖ approach, examining each situation on a case-bycase basis.

(c) Homes

An individual has a high expectation of privacy within the 

confines of his or her home. The Supreme Court has repeatedly 

emphasized that the warrantless entry and search of a home is 

the chief evil against which the Fourth Amendment is directed. 

REP exists even if the home is temporarily unoccupied. For 

example, REP persists in a primary residence while the 

occupants are away on vacation. And an owner‘s REP persists 

in her vacation home even if the owner only occupies it a few 

weeks per year. The Supreme Court has also held that in some 
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circumstances a person may have a legitimate expectation of 

privacy in the house of someone else. In such cases, REP 

depends on the visitor‘s purpose for the being at the home. For 

example, overnight guests of a homeowner are entitled to REP 

in the host‘s home. A social visitor normally does not have REP 

in the home visited; but, REP may exist if the person is a 

frequent visitor with free access to the home and is authorized 

to control the premises at times. A commercial visitor generally 

has no REP in the home visited because of the purely 

commercial nature of the transaction, the relatively short period 

of time on the premises, and the lack of any previous 

connection with the homeowners or occupants.

The protection afforded to homes has been extended to 

cover hotel and motel rooms. No less than a tenant of a house, 

or the occupant of a room in a boarding house, a guest in a 

hotel room is entitled to constitutional protection against 

unreasonable searches and seizures. In determining whether a 

person had REP in a hotel or motel room, courts typically 

consider (a) whether the person was the registered occupant of 

the room; (b) whether the person was sharing the room with 

another to whom it was actually registered; (c) whether the 

person ever checked into the room; (d) whether the person paid 

for the room; and (e) whether the person had the right to control 

or exclude others‘ use of the property. Generally, a person‘s 

REP in a hotel or motel room ends at checkout time, although 

this may not always be the case if some past practice allowed 

the individual to retain the room past checkout time. Tenants of 

hotels, motels, and even apartment and condo buildings, 

typically have no REP in the common areas of those structures 

(e.g., the stairwells or hallways).

(d) Containers

An individual has REP in his or her containers (e.g., 

purses, briefcases, backpacks, etc.), at least where those 

containers do not reveal their contents by the way they are 

designed. Letters and other sealed packages are in the general 

class of effects in which the public at large has a legitimate 

expectation of privacy. Knowledge of the contents does not 
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necessarily destroy the REP altogether; there is still the problem 

of access, and a warrant may need to be obtained or an arrest 

effected first.

A private search that opens and examines a container can 

eliminate REP. Once a private search occurs, the Fourth 

Amendment does not prohibit governmental use of the now 

non-private information. In such cases, the Fourth Amendment 

allows government agents to ―search‖ to the same extent the 

private person did, without implicating the Fourth Amendment. 

(This rule only applies to containers, not other protected areas). 

REP still exists in those portions of the container that were not 

subject to the private search. A ―search‖ occurs within the 

meaning of the Fourth Amendment when you exceed the scope 

of the private intrusion and go into areas of the container where 

a person continues to have REP.

(e) Curtilage and Open Fields

As indicated earlier, There is a high degree of privacy 

inside homes. Included within the protections afforded a home 

are those areas that fall within a home‘s ―curtilage,‖ but not 

those areas of an individual‘s property that are considered 

―open fields.‖ The term ―curtilage‖ means the area to which 

extends the intimate activity associated with the sanctity of a 

man‘s home and the privacies of life. Curtilage is considered 

part of the home itself for Fourth Amendment purposes, and an 

individual has REP in the curtilage surrounding a dwelling. In 

contrast, ―open fields‖ include any unoccupied or undeveloped 

area outside of the curtilage. There is no REP in ―open fields.‖ 

Even if the area is fenced, and even if the owner has posted ―No 

Trespassing‖ signs, law enforcement officers may enter upon 

open fields for legitimate law enforcement purposes. An ―open 

field‖ need not be ―open‖ or a ―field,‖ but could instead be a 

large tract of thickly wooded area on a person‘s property. 

Although officers can enter upon open fields without any Fourth 

Amendment justification, they may not intrude into structures 

on open fields (such as sheds, barns, or other containers) 

without a warrant or an exception to the warrant requirement. 
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In most instances the boundaries of a home‘s curtilage 

will be easily defined, especially in a suburban area. In more 

rural settings, determining exactly where ―curtilage‖ ends and 

―open fields‖ begin can be a difficult task. In United States v. 

Dunn the Supreme Court set out four factors that must be 

considered when determining whether a given area is part of a 

home‘s curtilage:

The proximity of the area claimed to be curtilage to 

the home itself, although courts have repeatedly 

refused to fix a specific distance at which curtilage 

ends;

Whether the area is included within a single 

enclosure (natural or artificial) surrounding the 

home;

The use of the area; and

The steps taken by the resident to protect the area 

from observation by people passing by.

No one factor controls, and all must be considered to 

answer the ultimate question. Is the area within the property 

surrounding the dwelling in which the intimate, daily, family 

activities occur?

(f) Government Workplaces2

In O‘Connor v. Ortega the Supreme Court addressed 

whether a government employee may establish REP in a 

government workspace. Government employees can, and often 

do, establish expectations of privacy in their government offices, 

filing cabinets, and computers. In determining whether a 

government employee has REP in his or her workspace, courts 

have utilized a variety of factors. Among the most important are 

(1) prior notice to the employee, such as through the use of 

 

2 See Chapter Ten for a more extensive discussion of government workplace 

searches.
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computer banners, that limit REP or state that no REP exists; 

(2) common practices and procedures of the employer; (3) 

openness and accessibility to the area or item in question; (4) 

whether the position of the employee requires a special trust 

and confidence (e.g., a position that has security requirements); 

and (5) whether the employee has waived any REP in the 

workplace, such as through the collective bargaining process. If 

an employee does have REP in his or her workplace, an 

intrusion into that workplace constitutes a ―search‖ for 

purposes of the Fourth Amendment.

Special rules have been developed for workplace searches 

that take into consideration a government supervisor‘s dual 

responsibility of ensuring the public‘s work is being done while 

still protecting a government employee‘s Constitutional right to 

be free from unreasonable searches and seizures. Even when a 

government employee has REP in the workplace, a supervisor 

may search that space without a warrant while looking for 

work-related items, files, or materials. A supervisor who has 

reasonable suspicion of employee work-related misconduct, 

which may or may not also be criminal, is entitled to search the 

employee‘s workplace without a warrant in order to determine 

whether such misconduct is in fact occurring. The supervisor 

is limited in scope to searching only those areas where the 

evidence of misconduct could be located. When a government 

employee‘s workplace is searched purely for evidence of criminal 

misconduct unrelated to work, the basic Fourth Amendment 

rules apply and require either a search warrant or an exception 

before a search can occur.

(g) Abandoned Property

There is no REP in abandoned property. Abandonment 

occurs when an individual, either through word or deed, 

indicates an intention to permanently disavow any interest in 

the item or place. An individual may ―abandon‖ an expectation 

of privacy in an object by denying knowledge or ownership of it, 

such as when a person, previously seen in possession of a 

suitcase, denies owning it. An expectation of privacy in an 

object may also be ―abandoned‖ by discarding it, such as when 
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an individual being pursued by law enforcement officers throws 

away an object later determined to be contraband. An 

individual‘s abandonment of certain property may be found 

involuntary when it is preceded by unlawful police misconduct. 

For the abandonment to be considered involuntary due to police 

misconduct, there must be a nexus between the misconduct 

and the abandonment. For example, the abandonment may be 

found to be involuntary when it was the direct result of an 

unlawful seizure.

(h) Garbage

The key to determining whether there is REP in garbage is

the location of the garbage at the time you encounter it. There 

clearly is REP in garbage located inside a home. However, when 

garbage is placed on the curb of a public street for final pick-up 

by a third-party (e.g., a trash collector), REP in the garbage no 

longer exists.

A more difficult situation occurs when the trash is located 

outside the home, but still within the home‘s curtilage. As a 

general rule, an individual‘s REP will increase the closer the 

trash is to the home. There is no ―bright-line‖ rule that garbage 

located within the curtilage of a home is protected by the Fourth 

Amendment. When analyzing these types of situations, courts 

typically look at the ―public access‖ to the garbage to determine 

whether it is protected by the Fourth Amendment. Where the 

trash is readily accessible to the public from the street, a person 

may not have REP in that trash. In such cases, you may seize 

the garbage without a warrant even though a technical 

intrusion onto the curtilage has occurred. Any issue of this 

kind should be closely coordinated with the AUSA.

(i) Mail

A person has REP only in the contents of first class and 

higher mail sent through the U.S. Postal Service. Postal 

inspection regulations govern intrusions into lower class 

mailings. There is no REP in the outside of a letter or package 

(e.g., words written on the envelope). There is REP in the 
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contents of letters and packages sent through private carriers 

such as AirBorne Express, FedEx, DHL, and UPS.

3. Search Methods and Devices

(a) Canine sniffs

The use of a dog to sniff a container, such as luggage, 

located in a public place, does not intrude into REP and is not 

considered a ―search‖ for purposes of the Fourth Amendment.

(b) Sensory enhancements

The lawfulness of using devices to enhance your senses 

generally turns upon (1) the sophistication of the device, and (2) 

whether the activity that was viewed occurred in public or in 

private. Binoculars and telescopes are fairly unsophisticated 

devices, so using them to observe public conduct does not 

generally turn a surveillance into a search. However, when 

these devices are used to observe conduct taking place inside a 

person‘s residence, their use may constitute a ―search.‖ Your 

use of flashlights and searchlights for illumination does not 

constitute a ―search,‖ and you can point them into a car, barn, 

or even a detached garage (this issue has yet to be resolved for 

the living area of a home). Darkness does not create REP that 

would otherwise not exist in daylight. The use of thermal 

imaging to detect the heat emanating from inside a residence 

constitutes a ―search,‖ requiring a warrant or exigent 

circumstance.

(c) Aircraft Overflights

The use of over flights to detect criminal activity is 

common in law enforcement. When conducting overflights, you 

may operate in navigable airspace (as determined by FAA 

regulations) to the same extent as a private person. In such

situations, the Fourth Amendment does not require the police 

traveling in the public airways [at an altitude of 1,000 feet] to 

obtain a warrant in order to observe what is visible to the naked 

eye. Observations of ―open fields‖ from aircraft do not implicate 

the Fourth Amendment.
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IV. A Fourth Amendment “Seizure”

Not all interactions between law enforcement officers and 

citizens amount to a ―seizure‖ under the Fourth Amendment. 

Some encounters are purely voluntary. When your encounter 

with a citizen is completely consensual, the Fourth Amendment 

does not apply. You need to understand what words and 

actions on your part may convert a voluntary, consensual 

contact into a ―seizure.‖ It is also important for you to 

understand exactly when an individual is ―seized‖ for purposes 

of the Fourth Amendment.

A person is ―seized‖ when, based on the totality of the 

circumstances, including your application of physical force 

(however slight) or the person‘s submission to your show of 

authority, a reasonable person would not feel free to leave or 

otherwise terminate the encounter. Property is ―seized‖ when 

there is some meaningful governmental interference with an 

individual‘s possessory interests in that property.

A. Police-citizen Encounters

There are three types of police-citizen encounters: (1) a 

consensual encounter; (2) an investigative detention or ―Terry

stop‖; and (3) an arrest. Each of these types of encounters is 

discussed below. Only the Terry stop and the arrest are 

considered ―seizures‖ for Fourth Amendment purposes. The 

Fourth Amendment applies only when a ―seizure‖ occurs.

1. Consensual Encounters (Voluntary Contacts)

A consensual encounter is a brief, voluntary encounter 

between law enforcement officers and citizens that requires 

neither probable cause nor reasonable suspicion. An encounter 

is consensual if the citizen is entitled to terminate it and leave 

at any time. A voluntary contact is NOT considered a ―seizure.‖

When conducting a consensual encounter, you may take 

any or all of the following actions without turning the contact 

into a ―seizure.‖ First, you may approach an individual and ask 

questions, even incriminating questions. Second, you may 
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request, but not demand, to see an individual‘s identification. 

Third, you may identify yourself and display your credentials. 

And fourth, you may seek consent for a search.

In contrast, there are some actions you might take during 

an encounter that may change the nature of the contact into a 

―seizure‖ at some point. Your actions during a voluntary 

contact may be closely scrutinized by a court to determine 

whether the encounter became a ―seizure.‖ Among the factors 

courts will examine to determine whether a seizure has 

occurred include: (1) the time, place, and purpose of the 

encounter; (2) the words used by you; (3) language or tone of 

voice that might indicate compliance with your request is 

mandatory; (4) the threatening presence of several officers; (5) 

whether weapons were displayed by the officer(s); (6) any 

physical touching of the citizen; (7) retention of the citizen‘s 

identification or personal property; and (8) whether the citizen 

was notified of his right to end the encounter (though this is 

certainly NOT a requirement for voluntary contacts).

2. Investigative Detentions (Terry Stops)

Prior to 1968, encounters between law enforcement 

officers and citizens were categorized either as voluntary 

contacts (with no suspicion necessary) or arrests (which 

required probable cause). In Terry v. Ohio the Supreme Court 

recognized a third type of police-citizen encounter, known as an 

investigative detention (―Terry stop‖). An ―investigative 

detention‖ is a brief, investigatory stop when a law enforcement 

officer has a reasonable, articulable suspicion that criminal 

activity is afoot.

(a) The Requirements

To conduct an investigative detention of a person, you 

must have ―reasonable suspicion‖ to believe that criminal 

activity is afoot. You do not have to be fully convinced that a 

crime is being committed, or even that you are stopping the 

right suspect. In allowing investigatory detentions, Terry

accepts the risk that officers may stop innocent people. While 

―reasonable suspicion‖ is a lower standard than ―probable 
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cause,‖ you must still have explainable (articulable) reasons to 

justify a temporary seizure of a person. ―Criminal activity is 

afoot‖ means that you must reasonably suspect that: (1) a crime 

is about to be committed; (2) a crime is being committed; or (3) 

a crime has been committed. Some courts have disallowed 

investigative detentions, however, for misdemeanors that have 

already been completed, unless some ongoing danger to the 

public still exists (e.g., recent reckless driving). Also, if no other 

means exists to identify the subject that committed a 

misdemeanor, the detention may still be considered reasonable. 

Detentions to prevent or stop a misdemeanor from occurring 

are, of course, permissible with reasonable suspicion. When 

you have reasonable suspicion that a piece of personal property,

such as luggage, contains contraband or evidence of a crime, 

you may detain it in the same manner that you may detain a 

person.

To determine whether reasonable suspicion exists, courts 

look at the ―totality of the circumstances‘ of each case. You 

must be able to articulate facts demonstrating the possibility 

that the person stopped is connected to criminal activity. 

Through the use of a ―totality of the circumstances‖ test, you

are allowed to draw on your own experience and specialized 

training to make inferences from and deductions about the 

cumulative information available to you that might well elude 

an untrained person. For example, you may observe conduct

that you believe is ―casing‖ a store for a robbery, though it 

might not seem so to the untrained eye. In such a situation, 

your training and experience allows you to determine that 

reasonable suspicion of criminal activity exists, even though all 

of the suspect‘s outward conduct might otherwise appear 

perfectly innocent.

(b) Means of Establishing Reasonable Suspicion

You may use a variety of different investigative techniques 

to obtain enough information to establish reasonable suspicion 

to detain a person. For example, your personal observations 

may form the basis for reasonable suspicion to conduct an 

investigative detention. A great deal of deference is given to 
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your personal observations. Additionally, you may establish 

reasonable suspicion based upon information provided by other 

law enforcement officers utilizing a concept sometimes referred 

to as ―collective knowledge.‖ Information from an identified 

third party, such as a victim or witness, can also provide the 

facts necessary to justify reasonable suspicion. Finally, you 

may use information provided by informants to establish 

reasonable suspicion for an investigative detention.

It is not uncommon for an informant or anonymous

source to provide the information necessary to establish 

reasonable suspicion. While this is permissible, additional 

corroboration may sometimes be needed before reasonable 

suspicion can be established. The reliability of a tip provided by 

an informant depends on both the ―quantity and quality‖ of the 

information provided by the source. A tip from a confidential 

informant with an established, positive track record would 

usually be considered reliable enough to establish reasonable 

suspicion with little or no corroboration. An anonymous tip by 

itself can be insufficient, especially when the source‘s 

truthfulness is unknown or the basis of knowledge is not clear 

(i.e., how does the source know that the information is true?). In 

determining whether a tip contains enough verifiable 

information to establish reasonable suspicion, courts look to 

and rely upon the following factors: (1) the amount of detail 

provided by the source of the information; (2) whether the 

source predicted future behavior on the part of the suspect; (3) 

whether and to what extent law enforcement officers 

corroborate the source‘s information; (4) whether the 

information is based upon the source‘s first-hand observations; 

(5) whether, by providing the information, the source is putting 

his or her anonymity in jeopardy; (6) whether the information 

was provided in a face-to-face encounter with law enforcement 

officials; and (7) the timeliness of the source‘s report. 

Reasonable suspicion is a lower standard than probable cause, 

both as to the amount of evidence needed as well as its 

reliability.

(c) Factors Justifying Investigative Detentions

You must be able to explain to a court why you decided to 
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conduct an investigative detention of a suspect (i.e., what you 

heard or saw that led you to reasonably suspect that criminal 

activity was afoot). You can utilize a wide variety of factors to 

justify an investigative detention. Even apparently innocent 

conduct can, in appropriate instances, justify a Terry stop. 

There could, of course, be circumstances in which wholly lawful 

conduct might justify the suspicion that criminal activity was 

afoot. Some common factors you can use to justify investigative 

detentions include, but are not limited to:

A suspect‘s nervous behavior, although the 

application of this justification is of limited value;

A suspect‘s criminal history, although standing 

alone this factor will not establish reasonable 

suspicion;

An officer‘s knowledge of recent criminal conduct;

The time and location of a given situation;

A suspect‘s flight upon observing law enforcement 

officers, at least when combined with other factors;

A suspect‘s presence in a high crime area, at least 

when combined with other factors; and

A suspect‘s non-responsive behavior.

(d) The Duration of an Investigative Detention

The duration of an investigative detention must be 

reasonable. An investigative detention must be temporary and 

last no longer than is necessary to effectuate the purpose of the 

stop, and the investigative methods employed should be the 

least intrusive means reasonably available to verify or dispel the 

officer‘s suspicion in a short period of time. There is no ―brightline‖ time limit for an investigative detention (e.g., twenty 

minutes). The courts look to whether you diligently and 

reasonably pursued the investigation to quickly confirm or 
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dispel your suspicions. The amount of force used and the level 

of restriction placed on movement may also be considered, in 

addition to the length of the detention. Your Terry stop must be 

reasonable in time, place, and manner.

(e) The Use of Force During an Investigative 

Detention

Your use of force during an investigative detention must 

be reasonable under the totality of the circumstances. The 

Supreme Court has long recognized that the right to make an 

investigatory stop necessarily carries with it the right to use 

some degree of physical coercion or threat thereof to affect it. 

Weapons may be pointed at a suspect or handcuffs used, so 

long as it is justified. For instance, a subject that will not 

comply with lawful orders may be handcuffed, or you may point 

a gun at a suspect believed to be dangerous. Your use of these 

types of force must be objectively reasonable under the 

circumstances known to you at the time of the stop. In 

determining whether the amount of force used during an 

investigative detention has turned the stop into an arrest, 

courts consider a number of factors, including: (1) the number 

of officers involved; (2) the nature of the crime and whether 

there is reason to believe the suspect is armed; (3) the strength 

of your articulable, objective suspicions; (4) the need for your 

immediate action; and (5) the presence or lack of suspicious 

behavior or movement by the person under observation.

(f) When Does an Investigative Detention 

Become an Arrest?

While an investigative detention requires reasonable 

suspicion that criminal activity is afoot, an arrest requires 

probable cause that a crime is being, or has been, committed. 

An investigative detention requiring reasonable suspicion may 

escalate into an arrest requiring probable cause. In 

determining whether a de facto arrest has occurred, courts will 

consider a variety of different factors, including: (1) the purpose 

behind the stop and the nature of the crime; (2) whether you 

diligently sought to carry out the purpose behind the detention; 

(3) the amount of force you used, and the need for such force; 
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(4) the extent to which an individual‘s freedom of movement was 

restrained; (5) the number of agents/officers involved; (6) the 

duration and intensity of the stop; (7) the time and location of 

the stop; and (8) the need for your immediate action.

3. A Terry “Frisk”

In Terry the Supreme Court outlined the legal 

requirements for what has become known as a ―Terry frisk.‖ If, 

during an investigative detention, you develop reasonable 

suspicion that the individual is presently armed and dangerous, 

you may conduct a limited pat-down search of the individual for 

weapons. This ―frisk‖ is a pat-down search of a suspect‘s outer 

clothing to discover weapons that could be used against you 

during an investigative stop. You may not utilize a Terry frisk to 

look for evidence of a crime. To justify a ―frisk,‖ you must 

demonstrate two things: (1) first, the investigatory stop must be 

lawful; (2) and second, to proceed from a stop to a frisk, the 

police officer must reasonably suspect that the person stopped 

is armed and dangerous. (Arizona v. Johnson.)

A ―frisk‖ is limited search for weapons. It may be 

conducted even after the suspect has been handcuffed. You 

may check the outside of the suspect‘s clothing for any hard 

objects that could potentially be a weapon concealed 

underneath. Once a hard object is encountered, you are then 

entitled to go inside the clothing and retrieve the item. When 

dealing with winter clothing, you may reach inside and beneath 

a heavy jacket and frisk underneath it to avoid missing any 

weapons. You may also frisk any containers in the suspect‘s 

possession. As with investigative detentions, you may establish 

reasonable suspicion that a suspect is presently armed and 

dangerous through a variety of different methods, including 

personal observations, information from other officers, and 

information from third-parties, such as informants.

(a) Factors Used to Justify a Terry ―Frisk‖

The list of factors you may use as justification for a Terry

frisk is extensive. The following are some of the most commonly 
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recognized:

A suspect, through past criminal history or 

association with violent gangs, has a reputation for 

being armed and dangerous;

A bulge in a suspect‘s clothing indicating the 

possible presence of a weapon;

A ―furtive‖ movement by the suspect;

A suspect‘s words and actions, such as refusing to 

comply with your directions;

A tip from a reliable informant that the suspect is 

armed and dangerous

Your reasonable suspicion that the suspect has 

committed a crime, such as armed robbery, 

burglary, or drug trafficking, that by its very nature 

indicates the likelihood that the perpetrator is 

armed and dangerous.

This list is not exhaustive. Whether there are sufficient 

factors present to establish reasonable suspicion to conduct an 

investigative detention is ultimately a totality of the 

circumstances test.

(b) The ―Plain Touch‖ Doctrine

While the purpose of a Terry frisk is to discover weapons, 

not evidence of a crime, the Supreme Court has already held 

that you, at least under certain circumstances, may seize 

contraband detected during the lawful execution of a Terry

search. This has become known as the ―plain touch‖ doctrine. 

The ―plain touch‖ doctrine is nothing more than an expansion of 

the ―plain view‖ doctrine discussed later in this chapter.

In order to lawfully seize evidence under the ―plain touch‖

doctrine, you must meet two requirements. First, the frisk that 

led to the discovery of the evidence must have been lawful. 
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Second, the incriminating nature of the item must be 

immediately apparent. This means you must have probable 

cause that the object encountered is contraband or criminal 

evidence based on what you initially felt. You are not permitted 

to manipulate soft objects for the purpose of identifying an item. 

Minnesota v. Dickerson. Hard objects, of course, can be 

retrieved by you as potential weapons, and any evidence or 

contraband encountered in that process may be seized.

4. Detaining Vehicles

The Fourth Amendment applies to seizures of the person, 

including brief investigatory stops such as the stop of a vehicle. 

Stopping an automobile and detaining its occupants constitutes 

a  ̳seizure‘ within the meaning of the Fourth Amendment, even 

though the purpose of the stop is limited and the resulting 

detention quite brief. In 2007 the Supreme Court decided the 

case of Brendlin v. California, holding that a passenger inside a 

vehicle is ―seized‖ under the Fourth Amendment when the 

driver is stopped for a traffic offense. Whether stopping a person 

on foot or in a vehicle, the standard is the same. You must 

have, at a minimum, reasonable suspicion that the person 

stopped is, or is about to be, engaged in criminal activity. You

may also conduct a stop if you have reasonable suspicion to 

believe that a person in the vehicle is wanted for past criminal 

conduct or when you have reasonable suspicion to believe the 

vehicle is carrying contraband.

(a) Permissible Actions During Vehicle Stops

The Supreme Court has long recognized the very real 

dangers you face when confronting suspects located in vehicles. 

For that reason, when you conduct vehicle stops, you may take 

such steps as are reasonably necessary to protect your personal 

safety. This would include, among other things:

Removing the driver and passengers from the 

vehicle;
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Ordering the driver and passengers to remain in the 

vehicle;

Using a flashlight to illuminate the interior of the 

vehicle;

Conducting license and registration checks; and

Questioning the driver regarding his or her travel 

plans.

(b) A Terry ―Frisk‖ of a Vehicle

In addition to the permissible actions outlined above, you 

may also be permitted to conduct a ―frisk‖ of the vehicle for 

weapons. In Michigan v. Long the Supreme Court expanded the 

scope of a Terry frisk to include vehicles. Long provides that if 

you have reasonable suspicion to believe that the driver or 

passenger in a vehicle is dangerous and may gain immediate 

control of a weapon, you may ―frisk‖ that person, as well as the 

entire passenger compartment of the vehicle. This ―frisk‖ of the 

vehicle may include any unlocked containers located in the 

passenger compartment. Some, but not all, federal appellate 

courts have extended this rule to include locked containers 

such as a locked glove compartment, when an occupant would 

have immediate access based on availability of the key. You 

may not ―frisk‖ the trunk of a vehicle.

(c) The Duration of Vehicle Stops

As with a traditional investigative detention, an 

investigative detention that occurs in a vehicle must be 

temporary and last no longer than is necessary to effectuate the 

purpose of the stop. This means that once the citation or 

warning has been issued, and all records checks have been 

conducted, the stop must end and the driver must be released. 

Should the detention continue past this point, you must show 

that the extension was based either upon the driver‘s consent, 

or because you established reasonable suspicion during the 

original stop that some additional misconduct was occurring. 

Your failure to establish either of these additional bases for 
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extending the stop may result in the continued detention being 

found unreasonable under the Fourth Amendment.

(d) Pretextual Vehicle Stops

Pretextual traffic stops are permissible. A ―pretextual‖ 

traffic stop occurs when you use a legal justification (e.g., an 

observed traffic violation) to stop an individual in order to 

investigate a different, more serious crime for which you have 

no reasonable suspicion (e.g., drug trafficking). In Whren v. 

United States the Supreme Court upheld pretextual 

traffic stops, noting that the constitutionality of a traffic stop 

does not depend on the actual motivations of the individual 

officers involved.

5. Arrests

The third type of ―citizen-police‖ encounter is an arrest 

based upon probable cause. This concept is discussed more 

fully in sections IX and X, below.

V. The Use of Race in Law Enforcement

Your use of race as a factor in the performance of your 

duties raises numerous Constitutional concerns. In light of 

these concerns, in June of 2003 the Department of Justice 

(DOJ) published a document entitled ―Guidance Regarding the 

Use of Race By Federal Law Enforcement Agencies.‖ On June 1, 

2004, the Department of Homeland Security (DHS) explicitly 

adopted the DOJ policy on racial profiling. The following 

excerpts are taken directly from that document, and provide the 

standard taught by the FLETC Legal Division. A complete copy 

of the DOJ policy is included in the Additional Resources 

Section.

A. The Constitutional Framework

―[T]he Constitution prohibits selective enforcement of the 

law based on considerations such as race.‖ Whren v. United 

States, 517 U.S. 806, 813 (1996). Thus, the decision of federal 

prosecutors ―whether to prosecute may not be based on  ̳an 
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unjustifiable standard such as race, religion, or other arbitrary 

classification.‘‖ United States v. Armstrong, 517 U.S 456, 464 

(1996)[quoting Oyler v. Boles, 368 U.S. 448, 456 (1969)].

The same is true of Federal law enforcement officers. 

Federal courts repeatedly have held that any general policy of 

―utiliz[ing] impermissible racial classifications in determining 

whom to stop, detain, and search‖ would violate the Equal 

Protection Clause. Chavez v. Illinois State Police, 251 F.3d 612, 

635 (7th Cir. 2001). As the Sixth Circuit has explained, ―[i]f law 

enforcement adopts a policy, employs a practice, or in a given 

situation takes steps to initiate an investigation of a citizen 

based solely upon that citizen‘s race, without more, then a 

violation of the Equal Protection Clause has occurred.‖ United 

States v. Avery, 137 F.3d 343, 355 (6th Cir. 1997). ―A person 

cannot become the target of a police investigation solely on the 

basis of skin color. Such selective law enforcement is 

forbidden.‖ Id. at 354. The Supreme Court has held that this 

constitutional prohibition against selective enforcement of the 

law based on race ―draw[s] on  ̳ordinary equal protection 

standards.‘‖ Armstrong, 517 U.S. at 465 [quoting Wayte v. 

United States, 470 U.S. 598, 608 (1985)]. Impermissible 

selective enforcement based on race occurs when the challenged 

policy has ―a discriminatory effect and ... was motivated by a 

discriminatory purpose.‖ Id. (quoting Wayte, 470 U.S. at 608). 

Put simply, ―to the extent that race is used as a proxy‖ for

criminality, ―a racial stereotype requiring strict scrutiny is in 

operation.‖ Cf. Bush v. Vera, 517 U.S. 952, 968 (1996).

B. Guidance for Federal Officials Engaged in Law 

Enforcement Activities

1. Routine or Spontaneous Activities in Domestic 

Law Enforcement

In making routine or spontaneous law enforcement 

decisions, such as ordinary traffic stops, Federal law 

enforcement officers may not use race or ethnicity to any 

degree, except that officers may rely on race and ethnicity in a 

specific suspect description. This prohibition applies even 

where the use of race or ethnicity might otherwise be lawful.
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2. Law Enforcement Activities Related to Specific 

Investigations

In conducting activities in connection with a specific 

investigation, Federal law enforcement officers may consider 

race and ethnicity only to the extent that there is trustworthy 

information, relevant to the locality or time frame, which links 

persons of a particular race or ethnicity to an identified criminal 

incident, scheme, or organization. This standard applies even 

where the use of race or ethnicity might otherwise by lawful.

Reliance upon generalized stereotypes is absolutely 

forbidden. Rather, use of race or ethnicity is permitted only 

when the officer is pursuing a specific lead concerning the 

identifying characteristics of persons involved in an identified 

criminal activity. The rationale underlying this concept carefully 

limits its reach. In order to qualify as a legitimate investigative 

lead, the following must be true:

The information must be relevant to the locality or 

time frame of the criminal activity;

The information must be trustworthy;

The information concerning identifying 

characteristics must be tied to the particular 

criminal incident, a particular criminal scheme, or 

a particular criminal organization.

This prohibition extends to the use of race-neutral 

pretexts as an excuse to target minorities. Federal law 

enforcement may not use such pretexts. This concern arises 

most frequently when aggressive law enforcement efforts are 

focused on ―high crime areas.‖ The issue is ultimately one of 

motivation and evidence; certain seemingly race-based efforts, if 

properly supported by reliable, empirical data, are in fact 

race-neutral.

Any information concerning the race of persons who may 

be involved in specific criminal activities must be relevant to 
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both time and place. Where the information concerning 

potential criminal activity is unreliable or is too generalized and 

unspecific, use of racial descriptions is prohibited.

These standards contemplate the appropriate use of both 

―suspect-specific‖ and ―incident-specific‖ information. As noted 

above, where a crime has occurred and authorities have 

eyewitness accounts including the race, ethnicity, or other 

distinguishing characteristics of the perpetrator, that 

information may be used. Federal authorities may also use 

reliable, locally relevant information linking persons of a certain 

race or ethnicity to a particular incident, unlawful scheme, or 

ongoing criminal enterprise - even absent a description of any 

particular individual suspect. In certain cases, the 

circumstances surrounding an incident or ongoing criminal 

activity will point strongly to a perpetrator of a certain race, 

even though authorities lack an eyewitness account. It is 

critical, however, that there be reliable information that ties 

persons of a particular description to a specific criminal 

incident, ongoing criminal activity, or particular criminal 

organization. Otherwise, any use of race runs the risk of 

descending into reliance upon prohibited generalized 

stereotypes. Note that these standards allow the use of reliable 

identifying information about planned future crimes. Where 

federal authorities receive a credible tip from a reliable 

informant regarding a planned crime that has not yet occurred, 

authorities may use this information under the same 

restrictions applying to information obtained regarding a past 

incident. A prohibition on the use of reliable prospective 

information would severely hamper law enforcement efforts by 

essentially compelling authorities to wait for crimes to occur, 

instead of taking proactive measures to prevent crimes from 

happening.

C. Guidance for Federal Officials Engaged in Law 

Enforcement Activities Involving Threats to National 

Security, the Integrity of the Nation‘s Borders, or 

Catastrophic Events

In investigating or preventing threats to national security 

or other catastrophic events (including the performance of 
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duties related to air transportation security), or in enforcing 

laws protecting the integrity of the Nation‘s borders, Federal law 

enforcement officers may not consider race or ethnicity except 

to the extent permitted by the Constitution and laws of the 

United States.

1. Compelling Governmental Interest

Since the terrorist attacks on September 11, 2001, the 

President has emphasized that federal law enforcement 

personnel must use every legitimate tool to prevent future 

attacks, protect our Nation‘s borders, and deter those who 

would cause devastating harm to our Nation and its people 

through the use of biological or chemical weapons, other 

weapons of mass destruction, suicide hijackings, or any other 

means. ―It is  ̳obvious and unarguable‘ that no governmental 

interest is more compelling than the security of the Nation.‖ 

Haig v. Agee, 453 U.S. 280, 307 (1981)[quoting Aptheker v. 

Secretary of State, 378 U.S. 500, 509 (1964)].

2. Exceptional Circumstances Are Required

The Constitution prohibits consideration of race or 

ethnicity in law enforcement decisions in all but the most 

exceptional instances. Given the incalculably high stakes 

involved in such investigations, however, Federal law 

enforcement officers who are protecting national security or 

preventing catastrophic events (as well as airport security 

screeners) may consider race, ethnicity, and other relevant 

factors to the extent permitted by our laws and the 

Constitution. Similarly, because enforcement of the laws 

protecting the Nation‘s borders may necessarily involve a 

consideration of a person‘s alienage in certain circumstances, 

the use of race or ethnicity in such circumstances is properly 

governed by existing statutory and constitutional standards. 

See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 

(1975). This policy will honor the rule of law and promote 

vigorous protection of our national security. As the Supreme 

Court has stated, all racial classifications by a governmental 

actor are subject to the ―strictest judicial scrutiny.‖ Adarand 

Constructors, Inc. v. Peña, 515 U.S. 200, 224-25 (1995). The 
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application of strict scrutiny is of necessity a fact-intensive 

process. Id. at 236. Thus, the legality of particular, 

race-sensitive actions taken by Federal law enforcement officials 

in the context of national security and border integrity will 

depend to a large extent on the circumstances at hand. In 

absolutely no event, however, may Federal officials assert a 

national security or border integrity rationale as a mere pretext

for invidious discrimination. Indeed, the very purpose of the 

strict scrutiny test is to ―smoke out‖ illegitimate use of race, 

Adarand, 515 U.S. at 226 [quoting Richmond v. J.A. Croson Co., 

488 U.S. 469, 493 (1989)], and law enforcement strategies not 

actually premised on bona fide Nation‘s national security or 

border integrity interests therefore will not stand. In sum, 

constitutional provisions limiting government action on the 

basis of race are wide-ranging and provide substantial 

protections at every step of the investigative and judicial 

process.

VI. Probable Cause (PC)

The Fourth Amendment provides that ―no Warrant shall 

issue but upon probable cause ....‖ In cases in which the 

Fourth Amendment requires that a warrant to search be 

obtained, ―probable cause‖ is the standard by which a 

particular decision to search is tested against the constitutional 

mandate of reasonableness. Some searches may be performed 

without a warrant— many of these require probable cause. 

Probable cause is also required to obtain an arrest warrant or to 

arrest someone without an arrest warrant. The level of probable 

cause required to proceed without a warrant is the same level 

required to obtain a warrant.

A. Defining Probable Cause

Articulating precisely what ―probable cause‖ means is not 

possible. Probable cause is a fluid concept - turning on the 

assessment of probabilities in particular factual contexts - not 

readily, or even usefully, reduced to a neat set of legal rules. 

Nonetheless, some basic definitions for probable cause to 

―arrest‖ or ―search‖ have been formulated. Probable cause to 
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―search‖ exists where the known facts and circumstances are 

sufficient to warrant a man of reasonable prudence in the belief 

that contraband or evidence of a crime will be found in the 

place to be searched. Probable cause to ―arrest‖ exists when 

the known facts and circumstances are sufficient to warrant a 

prudent man in believing that the suspect had committed or 

was committing an offense.

B. The Test for Probable Cause

Courts use a ―totality of the circumstances‖ test to 

determine whether probable cause exists. This means that all 

facts known to you are considered. The focus in determining 

probable cause is not on the certainty that a crime was 

committed, but on the likelihood of it. Your determination of 

probable cause will be affirmed if a reasonable argument can be 

made, based in fact, that the suspect committed a specific 

crime, or that evidence will be found in the place to be 

searched.

C. Establishing Probable Cause

You may establish probable cause in any number of 

different ways. Perhaps the easiest way is through your direct 

observations. You may also use your sense of smell, such as 

when you smell the odor of marijuana emanating from a 

vehicle. Further, probable cause may be established by the 

―collective knowledge‖ of many law enforcement officers, each of 

whom has some fact available that, when taken in sum, 

establishes the existence of probable cause. You may rely on 

your training and experience in making a probable cause 

decision so long as there are sufficient additional facts to 

support it. You may also use non-human sources, such as a 

trained, drug-sniffing dog, to establish probable cause. 

Information provided solely by victims and/or witnesses can be 

sufficient to establish probable cause, given a proper basis of 

knowledge, when there is no evidence indicating that either the 

information or the victim/witness is not credible. Probable 

cause may be established through information provided by a 

confidential informant or anonymous source. When a 
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confidential informant or anonymous source is the source of the 

information, however, certain issues must be considered.

1. Using Confidential Informants to Establish 

Probable Cause

The use of confidential informants in criminal 

investigations is fairly routine. However, the use of this 

particular investigative tool can raise concerns regarding the 

informant‘s veracity and reliability. In Aguilar v. Texas the 

Supreme Court outlined a two-prong test for determining 

whether information provided by a confidential informant 

establishes probable cause. The two prongs of the ―Aguilar

Test‖ are: (1) the credibility of the informant, and (2) the 

informant‘s basis of knowledge.

(a) Credibility of the Informant

When you use a confidential informant to establish 

probable cause, you must establish that the informant is 

credible (worthy of belief). You can establish the credibility of a 

confidential informant in a variety of ways.

Proven Track Record. The informant has a track 

record of supplying reliable information in the past.

Statements Against Interest. When a confidential 

informant makes statements that are against his 

penal interest, (it gets him in trouble, too) the 

information is more likely to be reliable. People do 

not lightly admit a crime and place critical evidence 

in the hands of the police in the form of their own 

admissions. Admissions of crime carry their own 

indicia of credibility - sufficient at least to support a 

finding of probable cause.

Corroboration. Independent corroboration of some 

information provided by a confidential informant 

increases the likelihood that other information 

provided is accurate.
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First-Hand Information. The personal observations 

of a confidential informant are more likely to be 

credible.

Face-to-Face Meetings with the Informant. A face-toface encounter allows a personal assessment of the 

informant‘s demeanor and credibility.

Consistency Between Independent Informants. 

Credibility increases when two or more separate, 

unrelated informants provide consistent 

information.

The Degree of Detail Provided. The greater the 

detail, the more likely the informant has accurate 

knowledge of the information provided.

(b) Basis of Knowledge

In addition to establishing the confidential informant‘s 

credibility, you must also establish that the informant has a 

sufficient basis of knowledge. The ―basis of knowledge‖ prong 

requires the government to provide sufficient information to 

show the informant knows the following:

Who is involved in the criminal activity;

What criminal activity is taking place;

Where the criminal activity occurred or is 

occurring;

When the criminal activity occurred; the fact that 

an informant saw stolen property in the suspect‘s 

car six months ago would not support a 

determination that the property was still in the car; 

and

How the informant became aware of this 

information.
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(c) The Effect of Gates on Aguilar

In Illinois v. Gates the Supreme Court rejected the twopart Aguilar test (outlined above) as hyper-technical and 

divorced from the factual and practical considerations of 

everyday life on which reasonable and prudent men, not legal 

technicians, act. Instead, the Court adopted a ―totality of the 

circumstances‖ approach to determining probable cause. Even 

though Gates replaced Aguilar‘s two-prong test, the Supreme 

Court has continued to emphasize that a confidential

informant‘s credibility and basis of knowledge are important 

factors in determining whether probable cause exists.

VII. The Exclusionary Rule

A. The Rule

The Fourth Amendment does not by its own terms require

that evidence obtained in violation of its mandates be 

suppressed. Instead, the ―exclusionary rule‖ was developed by 

the Supreme Court. Evidence obtained as a result of an 

unlawful search and/or seizure is inadmissible in criminal 

trials. This is true even if the evidence was not seized as a 

direct result of the Fourth Amendment violation; evidence which 

indirectly derives from information learned illegally is also 

inadmissible. This is often called the ―fruit of the poisonous 

tree‖ doctrine. For example, although searching arrestees 

incident to their arrest is generally permitted, evidence found in 

a search incident to an arrest which was not supported by 

probable cause would be inadmissible. And stolen property 

would be inadmissible if it was retrieved by following a map 

found during an illegal search of a suspect‘s home. The

exclusionary rule is intended to deter police misconduct by 

creating negative consequences for disregarding the Fourth 

Amendment requirements. However, the exclusionary rule has 

never been held to prohibit the introduction of illegally seized 

evidence in every situation, and courts have developed a 

number of exceptions to the general rule.
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B. The Exceptions

1. No Standing to Object

Fourth Amendment rights are personal and cannot be 

claimed by another. In order to claim the protection of the 

Fourth Amendment, a defendant must demonstrate that he 

personally has an expectation of privacy in the place searched, 

and that his expectation is reasonable. Only defendants whose 

Fourth Amendment rights have been violated may benefit from 

the exclusionary rule‘s protections. For example, a car thief 

would have no standing to object to the admission of the tool he 

used to break into the car he stole after officers found it by 

searching the stolen car. Nor would a drug dealer have 

standing to object to the admission of drugs he duped an 

unsuspecting neighbor into storing in the neighbor‘s house. 

Nor would a passenger have standing to object to the admission 

of a stolen wallet he crammed down a car seat after the driver 

was pulled over for a speeding violation.

2. Impeachment

The Supreme Court has repeatedly held that when 

defendants testify, they must testify truthfully or suffer the 

consequences. When a defendant takes the witness stand and 

testifies falsely, the government may cross-examine the 

defendant and impeach him with evidence that was obtained in 

violation of the Fourth Amendment. Under the impeachment 

exception, illegally obtained evidence may be used to impeach 

(1) any testimony given by a defendant on direct examination, 

(2) or a defendant‘s statements made in response to proper 

cross-examination.

If the defendant testifies, evidence seized illegally from the 

defendant may be used to impeach defense witnesses as well as 

the defendant. The Supreme Court has declined, however, to 

expand this exception to allow impeachment of other defense 

witnesses with evidence seized illegally from the defendant 

when the defendant does not testify.
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3. Good Faith

In United States v. Leon the Supreme Court established a 

―good faith‖ exception to the exclusionary rule. Evidence seized 

by you in ―good faith‖ reliance on a warrant issued by a neutral 

and detached judge based upon what is reasonably believed to 

be probable cause will be admissible even if a court later 

concludes that no probable cause existed.

The adoption of a ―good faith‖ exception is based on three 

underlying rationales: (1) The exclusionary rule is meant to 

deter law enforcement misconduct rather than judicial errors; 

(2) there is no evidence that magistrates or judges tend to ignore 

the Fourth Amendment, or that they have done so to such an 

extent that suppression of evidence is necessary; and (3) 

application of the exclusionary rule will not have a significant 

deterrent effect on magistrates or judges.

The ―good faith‖ exception will not apply when (1) the 

affiant misleads the issuing judge by including information in 

the affidavit that was known to be false or for which the affiant 

had a reckless disregard for the truth; (2) the judge issuing the 

warrant has abandoned the ―neutral and detached‖ role; (3) the 

warrant is based on an affidavit so lacking in indicia of probable 

cause as to render official belief in its existence entirely 

unreasonable; or (4) a warrant is so ―facially deficient‖ that no

officer would reasonably assume the warrant is valid. This

could occur if the warrant fails to particularly describe the place 

to be searched or things to be seized.

4. Foreign Searches

Neither the Fourth Amendment nor the exclusionary rule 

applies to foreign searches and seizures. However, for United 

States citizens and resident aliens, the Fourth Amendment 

applies to foreign searches and seizures: (1) conducted 

exclusively by the United States government; (2) conducted by 

the United States in a ―joint venture‖ with foreign authorities; or 

(3) when foreign authorities act as agents for the United States.
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(a) Searches by Foreign Authorities

The exclusionary rule does not require the suppression of 

evidence seized by foreign officials during a search, even when 

the target of that search is an American citizen, unless:

The conduct of the foreign officials would ―shock 

the judicial conscience.‖ Pursuant to its inherent 

supervisory powers, as well as the Due Process 

Clause, a Federal court may suppress any foreign 

search evidence obtained by methods that ―shock 

the conscience.‖

When United States law enforcement agents or 

officers substantially participate in the foreign 

search or seizure, or the foreign officials are being 

used as agents of the United States. In situations 

where law enforcement officers of the United States 

engage in a ―joint venture‖ with foreign officials, the 

protections of the Fourth Amendment will apply, 

and application of the exclusionary rule may result. 

Whether the participation of Federal law 

enforcement officers renders a search a ―joint 

venture‖ must be determined on a case-by-case 

basis. The mere presence of Federal officers will 

not automatically make the search a ―joint 

venture,‖ nor will simply providing information to a 

foreign official.

(b) Foreign Searches of Non-Resident Aliens By 

American Law Enforcement Officers

In United States v. Verdugo-Urquidez the Supreme Court 

addressed the issue of whether the Fourth Amendment applies 

to the search and seizure by United States agents of property 

that is owned by a nonresident alien and located in a foreign 

country. The court answered this question in the negative, 

holding that the purpose of the Fourth Amendment was to 

protect the people of the United States against arbitrary action 

by their own Government; it was never suggested that the 
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provision was intended to restrain the actions of the Federal 

Government against aliens outside of the United States 

territory. The Court noted, however, that aliens do receive 

constitutional protections when they have come within the 

territory of the United States and developed substantial 

connections with the country. Once an alien lawfully enters 

and resides in this country he becomes invested with the rights 

guaranteed by the Constitution to all people within our borders. 

When the alien was lawfully, albeit involuntarily, brought to 

this country, the presence is not of the sort to indicate any 

substantial connection with our country.

Although the Fourth Amendment does not apply to 

foreign searches of the property of a non-resident alien, controls 

exist over the investigative activities of American agents 

operating in foreign countries. Besides the obligations imposed 

by the host countries themselves, Congress has restricted 

American agents‘ foreign activities. For example, in the 

narcotics area, Congress has prohibited American agents from 

directly effecting an arrest in any foreign country as part of any 

foreign police action with respect to narcotic control efforts and 

has prohibited American agents from interrogating or being 

present during the interrogation of any United States person 

arrested in any foreign country with respect to narcotic control 

efforts. Additionally, the United States has entered into 

agreements and treaties with other countries which provide for 

mutual legal assistance and establish procedures for obtaining 

evidence in criminal investigations abroad. The Office of 

International Affairs, (202) 514-0000, provides advice and 

assistance regarding the requirements for these agreements, 

and maintains a current list of mutual legal assistance 

agreements and treaties. This list is on the DOJNET at 

http://10.173.2.12/criminal/oia/MLAT.html. 

(c) Searches of United States Citizens and 

Resident Aliens in Foreign Countries

The Fourth Amendment applies to searches and seizures 

against United States citizens and resident aliens while abroad 

when conducted by, on behalf of, or jointly with the United 
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States Government. The Fourth Amendment applies to 

overseas searches in three related situations: (1) when the 

search is being conducted solely by United States law 

enforcement personnel; (2) when the search is being conducted 

by foreign officials acting on behalf of the United States 

Government; and (3) when the search is a ―joint venture‖ 

between the United States and foreign officials.

Foreign searches raise privacy issues that do not always 

have clear solutions. Rule 41 of the Federal Rules of Criminal 

Procedure does not authorize a Federal judge to issue a search 

warrant for a location outside the United States. In fact, even if 

such a warrant were issued, it would be a dead letter outside 

the United States. Even when no warrant is required, American 

agents must articulate specific facts giving them probable cause 

to undertake a search or seizure if they wished to comply with 

the Fourth Amendment. Any search that is conducted must 

also meet the reasonableness requirements of the Fourth 

Amendment.

While American law governs whether illegally obtained 

evidence should be suppressed under the exclusionary rule, 

any analysis of the reasonableness of a foreign search will 

generally include a review of local, foreign law on the subject. 

At least two Federal courts have decided that compliance with 

the law of the foreign nation in which the search occurred is not 

dispositive on the issue of a search‘s reasonableness, but is a 

factor to be considered. The Ninth Circuit has determined that 

compliance with foreign law alone determines whether the 

search violated the Fourth Amendment.

5. Inevitable Discovery

Evidence should be admitted if the prosecution can 

establish by a preponderance of the evidence that it ultimately 

or inevitably would have been discovered by lawful means 

because the ―exclusionary rule‘s‖ deterrence rationale has so 

little basis. This has become known as the ―inevitable 

discovery‖ exception. The Federal circuits are split on whether 

the ―inevitable discovery‖ exception requires that law 

enforcement officers be actively pursuing an alternative 
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investigation at the time the constitutional violation occurred. 

The Second, Fifth, and Eighth Circuits require the government 

to be actively involved in an independent investigation that 

would have ―inevitably‖ resulted in the discovery of the 

evidence. The First, Sixth, Ninth, and Tenth Circuits have held 

that the ―inevitable discovery‖ exception applies whenever an 

independent investigation inevitably would have led to discovery 

of the evidence, whether or not the investigation was ongoing at 

the time of the illegal police conduct.

6. Miscellaneous Exceptions

In addition to the exceptions to the exclusionary rule 

outlined above, there are a variety of miscellaneous exceptions 

that may have applicability in a given case. The exclusionary 

rule does not apply to deportation proceedings, grand jury 

proceedings, sentencing proceedings, civil tax proceedings.

VIII. The “Plain View” Doctrine

The plain view doctrine allows officers to seize evidence 

they discover while in a public place or lawfully inside an REPprotected area. There are three requirements you must meet for 

a permissible plain view seizure of evidence. First, you must 

lawfully be in a position to observe the item; second, the 

incriminating nature of the item must be immediately apparent; 

and third, you must have a lawful right of access to the object 

itself.

A. Lawful Position of Observation

The first requirement of any plain view seizure is that you 

must have a lawful reason to be in the location from which you 

observed the item. A lawful reason to be in a dwelling would be 

a warrant, consent, or an exigent circumstance. If you conduct 

a lawful protective sweep (see XII below) while serving an arrest 

warrant and find a sawed-off shotgun in a bedroom closet, you 

may seize that evidence under the plain view doctrine. If you 

are exceeding the lawful scope of a protective sweep by opening 

the medicine cabinet, however, any evidence you see inside the 

medicine cabinet would fall outside the plain view doctrine. 
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B. The Incriminating Nature of the Item Must Be 

Immediately Apparent

Second, not only must the item be seen from a place you 

have a legal right to be, but its incriminating character must 

also be immediately apparent. This means you must have

probable cause to believe that the object is contraband or 

evidence of a crime. If you must conduct some further search 

of the object before you can establish probable cause to believe 

that it is contraband, then its incriminating character is not 

immediately apparent and the plain-view doctrine cannot justify 

its seizure. The standard is not high, and a plain view seizure 

is presumptively reasonable, provided there is probable cause to 

associate the property with criminal activity.

In determining whether an item‘s incriminating nature is 

immediately apparent, courts will examine factors such as: (1) 

the nexus between the seized object and the items 

particularized in a search warrant; (2) whether the intrinsic 

nature or appearance of the seized object gives probable cause 

to associate it with criminal activity; and (3) whether probable 

cause is the direct result of the executing officer‘s 

instantaneous sensory perceptions.

C. Lawful Right of Access

Finally, even if you can see the object from a place where 

you are lawfully present, you may not seize it unless you have a 

lawful right of access to the object itself. Your personal 

observations may convince you that there is criminal evidence 

inside a premises. But even when the evidence is contraband, 

the basic rule is that you may not enter and seize it without a 

warrant, consent, or exigent circumstances.

For example, you may stand on the public sidewalk and 

see a marijuana plant growing inside someone‘s living room. 

Without additional facts, however, you may not yet enter the 

residence and seize the plant. You have no lawful right of 

access to the living room where the plant is located. If the 

resident were to grant you consent to enter, however, or if the 

resident saw you through the window and began destroying the 
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plant, you could lawfully enter the house and access the 

evidence. Remember, the plain view doctrine is not a tool that 

allows you to search for evidence, but only to seize it if you meet 

the rule‘s criteria.

IX. Arrest Warrants

Within the federal system, arrest warrants may be 

obtained in several ways, including a criminal complaint, a 

grand jury indictment, or an information. The form and

issuance of federal arrest warrants are detailed in Rules 4 and 9 

of the Federal Rules of Criminal Procedure3.

A. Arrest Warrant Upon Complaint

Rule 4 addresses the issuance of federal arrest warrants 

based upon a complaint. Subsection (a) of the rule provides 

that ―if the complaint or one or more affidavits filed with the 

complaint establish probable cause to believe that an offense 

has been committed and that the defendant committed it, the 

judge must issue an arrest warrant to an officer authorized to 

execute it.‖ A ―complaint‖ is defined by Rule 3 as ―a written 

statement of the essential facts constituting the offense 

charged. It must be made under oath before a magistrate judge 

or, if none is reasonably available, before a state or local judicial 

officer.‖

B. Arrest Warrant Upon Indictment or Information

Rule 9 addresses the issuance of federal arrest warrants 

based upon an indictment or information. Subsection (a) of the 

rule provides that ―the court must issue a warrant - or at the 

government‘s request, a summons - for each defendant named 

in an indictment or named in an information if one or more 

affidavits accompanying the information establish probable 

cause to believe that an offense has been committed and that 

 

3 These Rules can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Rules of 

Criminal Procedure.‖
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the defendant committed it.‖ An information is similar to a 

criminal complaint except that an Assistant U.S. Attorney 

(AUSA) prepares it. An information is used to charge 

misdemeanor offenses. An indictment is the result of a grand 

jury decision that there is probable cause to believe that a crime 

was committed and the defendant committed it. In order to try 

a defendant for a felony, the government must usually obtain 

an indictment.

C. The Form of a Federal Arrest Warrant

A federal arrest warrant must contain the following:

Signature of the Judge. The warrant must be 

―signed by the magistrate judge‖ or by whatever 

judge issues the warrant. For arrest warrants 

based upon an indictment or information, the 

warrant ―must be signed by the clerk.‖

Name of the Defendant. ―... the defendant‘s name 

or, if it is unknown, a name or description by which 

the defendant can be identified with reasonable 

certainty.‖

The Offense Charged. The warrant must ―describe 

the offense charged in the complaint.‖ For arrest 

warrants based upon an indictment or information, 

the warrant ―must describe the offense charged in 

the indictment or information.‖

Command to Arrest. The warrant must ―command 

that the defendant be arrested and brought without 

unnecessary delay before a magistrate judge or, if 

none is reasonably available, before a state or local 

judicial officer.‖

D. Technical Aspects of Executing Arrest Warrants

Rule 4(c) describes the manner in which arrest warrants 

based upon a complaint must be executed.
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Who Can Execute? ―Only a marshal or other 

authorized officer may execute a warrant.‖ The 

arresting officer need not be the one who obtained 

the warrant.

Territorial Limits. An arrest warrant ―may be 

executed ... within the jurisdiction of the United 

States or anywhere else a federal statute authorizes 

an arrest.‖

Time Limits. Unlike a search warrant, there is 

typically no timeframe in which an arrest warrant is 

required to be executed.

E. Manner of Execution

A warrant is executed by your arrest of the defendant. 

―Upon arrest, an officer possessing the warrant must show it to 

the defendant.‖ There is no requirement, however, that you 

have the warrant present at the time of the arrest. ―If the officer 

does not possess the warrant, the officer must inform the 

defendant of the warrant‘s existence and of the offense charged 

and, at the defendant‘s request, must show the warrant to the 

defendant as soon as possible.‖

F. Return of the Arrest Warrant

Both Rule 4 and Rule 9 provide for a return of the arrest 

warrant. When you arrest someone on a warrant issued upon a 

complaint, indictment, or information, you must return it to the 

judge before whom the defendant is brought for the Initial 

Appearance. At the request of an attorney for the government, 

an unexecuted warrant must be brought back to and canceled 

by a magistrate judge or, if none is reasonably available, by a 

state or local judicial officer.

X. Arrests

A warrant is not always required for an arrest to be 

lawful. However, when an individual is arrested, both statutory 

and Constitutional requirements must be satisfied. The three 
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requirements for a lawful arrest are (1) probable cause, (2) 

arrest authority, and (3) a lawful right of access to the suspect.

A. Arrest Authority

In the federal system, the authority to make arrests varies 

from agency to agency. The scope of your arrest authority is 

established by statute. You must know the extent of your 

authority granted by these statutes. For some, authority and 

jurisdiction are limited to certain geographical areas; for others, 

authority is limited to certain subject matter. For example, a 

United States Park Police officer can enforce almost all Federal 

laws, but only within specific physical boundaries. On the 

other hand, an Internal Revenue Service agent may enforce only 

internal revenue laws, but may do so anywhere within the 

jurisdiction of the United States. You may not make an arrest 

just because a federal crime has been committed, but may do 

so only if you have the statutory authority to arrest for that 

specific crime.

Your authority to make arrests comes from three different 

sources.

Statutory Authority. Most Federal law enforcement 

officers have statutory grants of authority provided 

to them by Congress. For example, 8 U.S.C. § 3056 

outlines the arrest authority for officers and agents 

of the United States Secret Service. 22 U.S.C. § 

2709 provides the arrest authority for special 

agents of the Department of State.

Peace Officer Status. You may, in certain states, 

make arrests for violations of state law. This is 

typically referred to as ―peace officer‖ status. State 

law determines whether you have such authority, 

which may then be restricted by your agency policy.

Citizen’s Arrest Authority. Numerous states still 

have what is referred to as ―citizen‘s arrest‖ 

authority, which allows a citizen with probable 

cause of a felony to make an arrest for that crime. 
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Your reliance upon ―citizen‘s arrest‖ authority 

should be rare.

B. Arrests Based on Outstanding Arrest Warrants

In the course of your duty, you may discover the 

existence of an arrest warrant for a person with whom you are 

in contact. You typically learn of the existence of the warrant 

through an identity check run with the Treasury Enforcement 

Communications System (TECS) or National Crime Information 

Center (NCIC). Your actions upon discovery of the warrant 

typically are determined by whether the warrant was issued by 

Federal or State authorities.

1. Outstanding Federal Warrants

Authority to arrest is limited to your statutory authority. 

Verify that the warrant is still valid, and that the person 

arrested is the individual specified on the warrant. If you 

encounter a person with an outstanding Federal warrant for a 

crime which is outside the scope of your statutory arrest 

authority, detain the individual until an officer with the proper 

authority can make the arrest.

2. Outstanding State Warrant

No Federal statute authorizes you to arrest someone on 

an outstanding state warrant. Such arrests might be made 

with state peace officer authority, depending on the law of the 

state in which the arrest is made. In these types of situations, 

the best practice is to contact local police to determine if the 

requesting state wants the suspect detained and, if so, detain 

the person for a reasonable period until state or local police 

officers can make the arrest.

The discovery of a person with a pending state arrest 

warrant may indicate a violation of Federal law. For example, 

18 U.S.C. § 1073 prohibits persons from traveling in interstate 

commerce with the intent to avoid prosecution or to avoid giving 

testimony in any felony criminal proceeding.
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C. Right of Access: Entering a Home to Make An Arrest

The ―physical entry of the home is the chief evil against 

which the wording of the Fourth Amendment is directed.‖ 

Welsh v. Wisconsin. For that reason, entering a home to arrest 

a person without a warrant is typically a violation of the Fourth 

Amendment, regardless of whether you have probable cause to 

arrest the suspect. In order to lawfully enter a person‘s home to 

make an arrest, you must have: (1) a warrant; (2) consent; or 

(3) an exigent circumstance.

1. Entering the Suspect’s Home to Make an 

Arrest

―[F]or Fourth Amendment purposes, an arrest warrant 

founded on probable cause implicitly carries with it the limited 

authority to enter a dwelling in which the suspect lives when 

there is reason to believe the suspect is within.‖ Payton v. New 

York (emphasis added). In essence, this means that you must 

have: (1) a reasonable belief that the suspect lives at the home 

to be entered, and (2) a reasonable belief that the suspect is 

currently present in the home.

In determining whether a suspect is present in the home 

prior to executing the arrest warrant, courts look to the totality 

of the circumstances known to you at the time of the entry. In 

deciding this issue, courts typically consider several factors, 

including:

Any surveillance information indicating the suspect 

is in the home, although the actual viewing of the 

suspect is not required;

The presence of the suspect‘s vehicle, which may 

indicate his presence;

The time of day (e.g., 8:30 a.m. on a Sunday 

morning);
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Observation of lights or other electrical devices, 

such as televisions or stereos;

The circumstances of a suspect‘s employment, 

which may indicate when he is likely to be at his 

home;

Information from third parties (e.g., confidential 

informants or neighbors) indicating the suspect is 

present in the home.

2. Entering a Third-Party’s Home to Make An 

Arrest

An arrest warrant does not allow you to lawfully enter a 

home where the target does not reside to make the arrest. 

Instead, you must have: (1) a search warrant; (2) the consent of 

the third-party homeowner/occupier; or (3) an exigent 

circumstance. Steagald v. United States.

D. Warrantless Arrests

The legality of a warrantless arrest depends on whether 

the crime is a felony or a misdemeanor, and whether the 

suspect is in a public or private area.

1. Felonies

When you have probable cause to believe that a suspect 

located in a public place has committed a felony offense, you 

may make a warrantless arrest of that person. This presumes, 

of course, that you are authorized by statute or otherwise to do 

so. If the person for whom you have probable cause is located 

inside a residence, you must have consent or an exigent 

circumstance to enter the residence to make an arrest without a 

warrant.

2. Misdemeanors

If you have probable cause to believe that an individual 

has committed a misdemeanor offense in your presence, you 
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may, without violating the Fourth Amendment, arrest the 

offender. You have probable cause to believe a misdemeanor is 

taking place ―in your presence‖ when the facts and 

circumstances as observed by you through your senses are 

sufficient to warrant an officer of reasonable caution to believe 

that an offense is occurring. 

Neither the Constitution nor the Supreme Court has ever 

mandated that a misdemeanor crime occur ―in your presence‖ 

for an arrest to be authorized. However, the ―in the presence‖ 

requirement has been incorporated into the vast majority of 

statutes that provide federal law enforcement officers with 

arrest authority. If the misdemeanor crime does not occur in 

your presence, a warrantless arrest is typically not statutorily 

authorized.

As with a felony, lawful entry into a person‘s home to 

make a warrantless arrest for a misdemeanor requires either 

consent or an exigent circumstance.4

XI. Title 18 U.S.C. § 31095 (The “Knock and Announce” 

Statute)

Title 18 U.S.C. § 3109 imposes a ―knock and announce‖ 

requirement upon federal law enforcement officers when 

executing warrants in dwellings. Although the Fourth 

Amendment does not specifically require such an action, the 

Supreme Court has held the ―knock and announce‖ statute to 

be part of the Fourth Amendment‘s reasonableness 

requirement. The statute requires that before you execute a 

search or arrest warrant in a residence, you must first 

announce your authority and purpose. You may force your way 

into the residence only when you have been refused or denied 

 

4

 The exigent circumstance of ―hot pursuit,‖ discussed in section XIX.A., is 

only available when pursuing a suspect who is believed to have committed a 

―serious crime.‖ While some misdemeanors may qualify, the hot pursuit 

exigency is most often limited to use in felony pursuits.

5 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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admittance, or when exigent circumstances would make an 

announcement unreasonable.

A. The Statute

Titled ―Breaking Doors or Windows for Entry or Exit,‖ the 

statute provides as follows:

The officer may break open any outer or inner door 

or window of a house, or any part of a house, or 

anything therein, to execute a search warrant, if, 

after notice of his authority and purpose, he is 

refused admittance or when necessary to liberate 

himself or a person aiding him in the execution of 

the warrant.

The plain language of the statute appears to limit its 

application to the execution of search warrants. But, case law 

has made the statute equally applicable to the execution of 

arrest warrants.

B. The Primary Purposes of the Statute

The requirement to ―knock and announce‖ has three 

primary purposes: (1) to reduce the potential for violence to 

both the officers and the occupants of the house; (2) to prevent, 

or at least reduce, the needless destruction of private property; 

and (3) to recognize an individual‘s right of privacy in his house.

C. A ―Breaking‖ Under the Statute

Although the phrase ―break open‖ implies some use of 

force, force is not an indispensable element of a violation of 

§ 3109. Section 3109 basically prohibits an unannounced 

intrusion into a dwelling. ―Break open‖ includes:

Breaking down a door;

Forcing open a chain lock on a partially open door;

Opening a locked door by use of a passkey; or
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Opening a closed but unlocked door.

D. Requirements Under the Statute

Under the knock and announce statute, three 

requirements must be met before you may lawfully use force to 

―break open‖ some part of a house when executing a search or 

arrest warrant.

1. You Must First “Knock” 

Section 3109 actually contains no explicit ―knock‖ 

requirement, and instead only requires you to give notice of 

your ―authority and purpose.‖ Nevertheless, the practice of 

physically knocking on the door is preferred by Federal courts. 

An actual physical knocking is only one manner in which you 

can give notice of your presence. Other methods include placing 

a phone call to the residence, utilizing a bullhorn, or utilizing a 

police loudspeaker or public address system.

2. Announcement of Authority and Purpose

In addition to providing notice, § 3109 requires that you 

announce your authority and purpose for being there. No 

special words are necessary to satisfy this requirement. 

Announcing the title of your agency, such as ―Office of the 

Inspector General,‖ is overly complex and difficult for people to 

understand. Instead, simply announce, ―Police with an arrest 

(or search) warrant, open the door!‖ The focus of the ―knock 

and announce‖ rule is not on what magic words are spoken by 

the police, or whether the police rang the doorbell, but rather on 

how the words and other actions of the police will be perceived 

by the occupant. The proper trigger point, therefore, is when 

those inside should have been alerted that the police wanted 

entry to execute a warrant.

3. You Must Be Refused or Denied Admittance

The final requirement under § 3109 is that you be refused 

or denied admittance. Once you have been refused or denied 

admittance, you can use force to ―break‖ into the residence and 
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execute the warrant. While the refusal or denial of admittance 

is sometimes done explicitly, more often it is inferred from the 

circumstances. Some of the most common circumstances 

indicating a refusal of admittance are:

Silence. A refusal to comply with an officer‘s order 

to ―open up‖ can be inferred from silence. This is 

only true in situations where a ―reasonable‖ period 

of time has passed after your command. 

Unfortunately, neither the Supreme Court nor any 

other Federal court has come up with a definitive 

timeframe that you must wait before entering a 

residence after knocking and announcing. Instead, 

rulings on what constitutes a ―reasonable‖ amount 

of time are very fact intensive, with every situation 

having to be considered on a case-by-case basis. 

The facts known to you are what count in judging 

reasonable waiting times for purposes of § 3109. 

Factors that courts have considered in making this 

determination include: (1) the time of day; (2) the 

size and physical layout of the residence; (3) the 

nature of the crime at which the warrant is 

directed; (4) any evidence indicating guilt of the 

suspect; (5) and any other observations supporting 

a forced entry, such as defensive measures taken 

by the residents of the premises.

Sounds of Flight by the Occupants.

Sounds of Evidence Being Destroyed. For example, 

the sounds of a toilet flushing.

The Nature of the Evidence Sought. How quickly 

could the occupants destroy the items you‘re 

looking for?

Verbal Refusal. For example, the occupant yells ―go 

away!‖

Gunfire From Inside the Residence.
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E. Exigent Circumstances and the Statute

The Fourth Amendment does not require that you comply 

with § 3109 in all instances prior to using force to enter a 

residence. Instead, the statute has an ―exigent circumstances‖ 

exception, which allows you to dispense with the knock and 

announce requirement in certain situations. To lawfully use 

force to enter a residence without complying with ―knock and 

announce‖ requirements, you must have a reasonable 

suspicion, under the particular circumstances, that knocking 

and announcing your presence would be dangerous or futile, or 

that it would inhibit the effective investigation of the crime by, 

for example, allowing the destruction of evidence. The primary 

exigent circumstances that would allow officers to dispense with 

the requirements of § 3109 are:

Danger to Officers or Third Parties. Reasonable 

suspicion exists to believe that knocking and 

announcing could result in danger to law 

enforcement officers or third parties.

Destruction of Evidence. Reasonable suspicion 

exists that knocking and announcing would result 

in the destruction of evidence.

Useless Gesture. ―Knocking and announcing‖ 

would be a ―useless gesture‖ when the suspect is 

already aware of a law enforcement presence.

Hot Pursuit. You are not required pause at the front 

door of a residence to ―knock and announce‖ your 

presence when you are in ―hot pursuit‖ of a 

suspect.

Ruses or Decoys. In the detection of many types of 

crime, the Government is entitled to use decoys and 

conceal the identity of its agents. For that reason, 

an entry obtained without force by ruse or 

deception is not a violation of section 3109. If an 

attempted entry by ruse fails, the knock-and-
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announce rule continues to apply to a later forcible

entry.

F. Ordinary Violations of the Statute Do Not Lead to 

Suppression of Evidence

The common law principle that law enforcement officers 

must announce their presence and provide residents an 

opportunity to open the door is an ancient one and a command 

of the Fourth Amendment. Hudson v. Michigan. Not every 

Fourth Amendment violation, however, triggers the exclusionary 

rule. Ordinary violations of knock and announce alone will not 

result in the application of the exclusionary rule, because 

officers with a warrant inevitably would have entered the 

residence and discovered the evidence inside. Suppression of 

that evidence, therefore, would have a high societal cost and 

little deterrent effect. Of course, it is a serious matter if law 

enforcement officers violate the sanctity of the home by ignoring 

the requisites of lawful entry. You are still required to comply 

with the § 3109, and you remain susceptible to civil liability and 

administrative discipline for violations.

G. ―No-Knock‖ Warrants

In the right circumstances, you may request a ―no-knock‖ 

warrant, which allows you to dispense with the requirements to 

knock and announce before entry. ―The practice of allowing 

magistrates to issue no-knock warrants seems entirely 

reasonable when sufficient cause to do so can be demonstrated 

ahead of time.‖ Richards v. Wisconsin. When you anticipate 

exigent circumstances before searching, ask for pre-search 

judicial approval to enter without knocking. The issuance of a 

warrant with a no knock provision potentially insulates you 

against the subsequent finding that exigent circumstances did 

not exist.

The facts that justify a no-knock warrant are the same 

you would need to justify an on-site decision to dispense with 

the knock-and-announce requirement. There should be 

reasonable grounds that an exigency exists or will arise 
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instantly upon knocking, or that knocking would be futile. A 

judge‘s decision to refuse authorization of a no-knock entry 

does not preclude you, when executing a warrant, from 

concluding that it would be reasonable to enter without 

knocking and announcing. You may still make that decision at 

the scene.

When you obtain a no-knock warrant, you do not have to 

reaffirm the circumstances when you get to the scene. You 

cannot, however, disregard reliable information clearly negating

the existence of exigent circumstances when you actually 

receive such information before the execution of the warrant. 

Under such circumstances, you are required to reevaluate your 

plan to forcibly enter without knocking and announcing.

XII. Protective Sweeps

A. What is a ―Protective Sweep?‖

A ―protective sweep‖ is a quick and limited search of a 

premises incident to an arrest, which is conducted to protect 

the safety of police officers or others. It is narrowly confined to 

a cursory visual inspection of those places in which a person 

might be hiding.

B. Scope of a Protective Sweep

1. Areas to be Searched

A ―protective sweep‖ is not a full search of a dwelling. You 

may only ―sweep‖ those spaces where an individual might be 

found. For example, a search inside a medicine cabinet is 

outside the scope of a permissible protective sweep because 

persons could not reasonably hide inside a medicine cabinet.

Incriminating evidence found during a lawful protective 

sweep may be seized under the ―plain view‖ doctrine. This 

discovery of evidence does not, however, justify a subsequent 

warrantless search of the residence for additional evidence. You 

may use the incriminating evidence to obtain a search warrant 

for the premises.
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2. Timing of the Sweep

The Supreme Court has ruled that a protective sweep 

may last ―no longer than it takes to complete the arrest and 

depart the premises.‖ Maryland v. Buie. Although there is no 

bright-line rule on how long a protective sweep may last, they 

are generally measured in minutes. The longer you take to 

complete a protective sweep, the more likely a court will find the 

sweep excessive. For example, a protective sweep was upheld 

when the special response team opened doors only to areas 

large enough to harbor a person; there is no evidence that the 

officers opened drawers or that the sweep of the house was over 

extensive; and the sweep was short, lasting only about a 

minute. A two-hour protective sweep was held unlawful 

because it appeared to be a fishing expedition for evidence and 

because it greatly exceeded the permissible scope. Protective 

sweeps lasting as little as thirty minutes have been held 

unlawful.

C. Two Kinds of Protective Sweeps

The Supreme Court has identified two types of protective 

sweeps. The first, which requires no articulable suspicion, 

involves looking in closets and other people-sized places 

immediately adjoining the place of arrest from which an attack 

could be immediately launched. The second, which requires 

reasonable suspicion, allows a greater intrusion into the 

premises.

1. “Automatic” Protective Sweeps

Officers armed with an arrest warrant (or a search 

warrant for a person to be arrested) may enter the premises and 

search for the arrestee in any area that could conceal a person. 

Once the arrestee is located and the arrest is made, ―as a 

precautionary matter and without probable cause or reasonable 

suspicion, [officers may] look in closets and other spaces 

immediately adjoining the place of arrest from which an attack 

could be immediately launched.‖ Buie (italics added). Although 

the limited search is for people, any evidence or contraband 

found in plain view may be seized. 
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2. “Extended” Protective Sweeps

In Buie, the Supreme Court held that if officers wish to 

sweep beyond the area immediately adjacent to the place of 

arrest, ―there must be articulable facts which, taken together 

with the rational inferences from those facts, would warrant a 

reasonably prudent officer in believing that the area to be swept 

harbors an individual posing a danger to those on the arrest 

scene.‖

Facts establishing a reasonable suspicion that another, 

dangerous person is present at the scene include an occupant‘s 

demeanor, furtive movements by an occupant, noises indicating 

that additional persons are present at the residence, and cars in 

the driveway registered to criminal associates of the suspect. 

An agency policy mandating an automatic sweep of the entire 

premises during every arrest – regardless of the circumstances -

is invalid under the Fourth Amendment. Such a policy cannot 

justify a suspicionless extended sweep. 

D. ―Protective Sweeps‖ When the Arrest Occurs 

Outside the Home

There is no bright-line rule that prohibits you from 

performing protective sweeps of premises when an arrest occurs 

outside of that building. Instead, as with an extended 

―protective sweep,‖ you must have reasonable suspicion to 

believe a third party who poses danger to you is inside the 

home. If facts supporting that reasonable suspicion exist, it 

does not matter whether the arrest occurred inside or outside 

the residence. A bullet fired at an arresting officer standing 

outside a window is as deadly as one that is projected from one 

room to another. Additionally, the likelihood of the destruction 

of evidence is the same whether the arrest occurs indoors or in 

an outside area within the sight or hearing of an accomplice 

within the residence.

XIII. Searches Incident to Arrest (SIA)

It has long been recognized that conducting a search 

incident to a lawful arrest is a ―reasonable‖ search under the 
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Fourth Amendment and a valid exception to the warrant 

requirement.

A. Rationales for the Rule

In Chimel v. California, the Supreme Court outlined three 

distinct reasons for permitting searches incident to arrest: (1) to 

discover weapons; (2) to prevent the destruction or concealment 

of evidence; and (3) to discover any means of escape.

You do not have to specifically believe that the arrestee 

possesses evidence, weapons, or a means of escape on his 

person before a search incident to that arrest is justified. The 

fact the individual has been arrested enables you to conduct a 

search of that person.

B. Requirements for a Search Incident to Arrest

A search incident to arrest may only be conducted when 

three requirements have been met. First, there must be a lawful 

custodial arrest. This requires both probable cause that the 

arrestee has committed a crime and an actual arrest. A search 

incident to arrest may not be conducted in a situation where an 

actual custodial arrest does not take place. For example, you 

may not conduct a search incident to arrest in a Terry-type 

situation. A search incident to arrest is more intrusive than a 

frisk for weapons. A search incident to arrest is not authorized 

when an individual receives only a citation for an offense, such 

as a traffic violation, even if the individual could have been 

taken into custody. Knowles v. Iowa.

The second requirement for a lawful search incident to 

arrest is that the search must be ―substantially 

contemporaneous‖ with the arrest. New York v. Belton. The 

exact meaning of this phrase is open to interpretation, but it 

generally means that a search incident to arrest must be 

conducted at about the same time as the arrest. A search too 

remote in time or place from the arrest cannot be justified as 

incident to the arrest. ―Substantially contemporaneous‖ is 

determined in light of the Fourth Amendment‘s general 

reasonableness requirement, taking into consideration all of the 
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circumstances surrounding the search. While a search 

conducted 10 minutes after an arrest might be valid, a search 

30 to 45 minutes after the arrest might not. 

The contemporaneous requirement does not have a major 

effect on the ability to search the suspect‘s body (suspects are 

often searched at the scene, and again later as part of jail 

security measures). But it becomes a critical issue for

searching the area surrounding the suspect, or searching 

through items that may have been within the suspect‘s control, 

such as bags or cell phone call logs. These must be searched at 

the time of arrest in order to be valid. 

There is a third requirement that the area to be searched 

has to be currently accessible, at least in some measure, by the 

defendant. If the defendant has been removed from the area of 

the search, the justification for finding weapons or destructible 

evidence is gone. Arizona v. Gant (―If there is no possibility that 

an arrestee could reach into the area that law enforcement 

officers seek to search, both justifications for the searchincident-to-arrest exception are absent and the rule does not 

apply.‖) Some courts may even consider a well-secured suspect 

(handcuffed, with multiple officers present) to lack access to the 

surrounding area. At a minimum, officers should avoid 

performing a search incident to arrest once the suspect has 

been removed from the area.

In limited circumstances, the search may take place 

before the actual arrest occurs. ―Where the formal arrest 

follow[s] quickly on the heels of the ... search of [the 

defendant‘s] person,‖ it is not ―particularly important that the 

search preceded the arrest rather than vice versa.‖ Rawlings v. 

Kentucky. In such cases, none of the evidence found during the

pre-arrest search may be used as probable cause for the arrest.

C. The Scope of a Search Incident to Arrest

The permissible scope of a search incident to arrest varies 

depending on the context of the arrest.
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1. The Person of the Arrestee

When you make a custodial arrest of an individual, you 

are entitled to search the suspect‘s person. In the case of a 

lawful, custodial arrest, a full search of the person is reasonable 

under the Fourth Amendment and a valid exception to the 

warrant requirement. You may search for weapons, evidence, 

and any means of escape. Any evidence found on the suspect --

even if unrelated to the basis of the arrest -- may be seized.

2. The Area Within the Arrestee’s “Immediate 

Control”

In addition to the person of the arrestee, you are also 

entitled to search any area within the suspect‘s immediate 

control. This includes any containers within the arrestee‘s 

immediate control at the time of the arrest, such as a wallet, 

backpack, briefcase, or luggage. The phrase ―immediate 

control‖ means the area from within which the arrestee might 

gain possession of a weapon or destructible evidence.

Whether an area is within an arrestee‘s immediate control 

is determined on a case-by-case basis, and should take into 

consideration a variety of factors, including: (a) the distance 

between the arrestee and the place to be searched; (b) whether 

the arrestee was handcuffed or otherwise restrained; (c) whether 

the police were in a position to block the arrested person‘s 

access to the area in question; (d) the ease with which the 

arrested person could access the area; and (e) the number of 

law enforcement officers present at the scene.

The reference point for the area within the arrestee‘s 

immediate control is the location of the person at the time of the 

search, not where the person may later be moved. Generally, 

this should also be the location of the arrest, absent some 

extenuating circumstance. Once removed from that location, 

the right to conduct a search incident to arrest of that area is 

lost (but not for the suspect‘s body).
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This rule does not allow you to move the arrestee from 

one place to another within the house simply to justify a search 

incident to arrest of a different area. Obviously, the arrestee 

can be moved from a room as needed for safety and control 

reasons, or perhaps to obtain clothing, but this does not justify 

a search of the new location. You may accompany the arrestee, 

of course, and seize evidence observed in plain view during the 

relocation. Should he need to obtain clothing items, or perhaps 

be placed on a couch, the item or area could be checked prior to 

allowing the subject access. Arrest outside of a home will not 

justify a search incident to arrest inside of the residence itself.

3. “Vehicles and SIA

The rule that allows officers to search the area within the 

immediate control of an arrested suspect also applies to 

vehicles. Custodial arrest of an occupant of the vehicle is 

required. There is no search incident to citation. There is no 

requirement that the occupant arrested be the owner or driver 

of the vehicle. The term ―occupant‖ could include someone 

located outside the vehicle at the time of the arrest, so long as 

the person arrested is a ―recent occupant‖ of the vehicle. 

Thornton v. United States.

As with other searches incident to arrest, the purpose is 

to search for potential weapons and evidence that could be 

destroyed. This includes the entire passenger compartment of 

the vehicle, along with containers in that part of the car. As 

stated above, however, when ―there is no possibility that an 

arrestee could reach into the area that law enforcement officers 

seek to search... the rule does not apply.‖ Arizona v. Gant. A 

―container‖ is any object capable of holding another object, and 

includes closed or open glove compartments, consoles, or other 

receptacles located anywhere within the passenger 

compartment, as well as luggage, boxes, bags, clothing, and the 

like. While this definition does not expressly address ―locked‖ 

containers, several federal circuits have held that locked 

containers are within the scope of a lawful search incident to 

arrest. The inaccessible trunk of a vehicle, however, is not 
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within the immediate control of an arrestee and cannot be 

searched incident to arrest.

The Supreme Court also created a second rule that 

applies just to vehicles. It may allow for a search incident to 

arrest even when the standard Chimel rule does not. So there 

are two possible situations when the passenger compartment of 

a vehicle can be searched incident to arrest.

The first situation exists when the arrestee is close to the 

vehicle and can readily access the passenger compartment. 

This will be fairly rare in practice, as safety and good sense 

dictate controlling the defendant early, often by securing him in 

handcuffs and taking him away from the car. But where 

circumstances dictate that he remains nearby, not fully 

secured, a search incident to arrest can be done. For example, 

with just one officer present, even a handcuffed suspect could 

conceivably access the interior. But, when there are multiple 

officers present, or once the suspect is secured in the back of a 

patrol car, the search will not be allowed. A suspect should not 

be intentionally detained next to the vehicle for the sole purpose 

of justifying this type of search.

If the suspect is no longer in a position to access the car, 

there is a second situation in which a vehicle can be searched 

incident to arrest. This occurs when it is reasonable to believe 

the vehicle contains evidence of the crime. This only applies to 

the crime of arrest, and not other conceivable crimes the 

defendant may have committed. For example, if the arrest is 

for passing counterfeit currency, it is reasonable to think the 

vehicle contains evidence of that crime (additional notes, etc.). 

If, however, the arrest was for driving on a suspended license, 

no additional evidence would be found within the car, and a 

search incident to arrest would not be justified this way. 

If neither of these rules applies, the search incident to 

arrest cannot be done, but this does not stop an officer from 

applying other exceptions to the Fourth Amendment warrant 

requirement. For example, if there was a reasonable suspicion 

that an individual still close enough to access the car was 
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armed and dangerous, a frisk could still be conducted of the 

passenger compartment. And, where there is probable cause to 

believe the car contains evidence of a crime, it could be 

searched based on the Carroll doctrine. Finally, if the vehicle is 

being lawfully impounded, officers may conduct an inventory 

search.

XIV. Issuance of Federal Search Warrants

The rules delineating who may issue Federal search 

warrants are a mix of statutes and Federal case law.

A. Who May Request a Federal Search Warrant?

Rule 41(d)(2)(A) of the Federal Rules of Criminal 

Procedure provides that federal search warrants may be 

requested by (a) federal law enforcement officers, or (b) an 

attorney for the government.

―Federal law enforcement officer‖ is defined as a 

government agent (other than an attorney for the government) 

who is engaged in enforcing the criminal laws and is within any 

category of officers authorized by the Attorney General to 

request a search warrant. You are required to obtain the 

concurrence of the United States Attorney‘s Office before 

applying for a search warrant. Specifically, 28 CFR § 60.1 

provides ―that only in the very rare and emergent case is the law 

enforcement officer permitted to seek a search warrant without 

the concurrence of the appropriate U.S. Attorney‘s office.‖

An ―attorney for the government‖ is defined in Rule 

1(b)(1), and includes Assistant United States Attorneys.

B. Who May Issue a Federal Search Warrant?

Rules 1 and 41 of the Federal Rules of Criminal 

Procedure authorize the following individuals to issue federal 

search warrants:

United States Magistrate Judges (Rule 41(b));
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United States District Court Judges (Rule 1(c));

United States Circuit Court of Appeals Judge (Rule 

1(c));

United State Supreme Court Justice (Rule 1(c)); 

and

State Court Judges who are of a ―court of record.‖ 

State judges were included in Rule 41 because they

are far more plentiful than the small corps of 

federal magistrates. Whether a State court judge is 

of a ―court of record‖ is determined by State law. 

The one essential feature necessary to constitute a 

court of record is that a permanent record of the 

proceedings of the court must be made and kept.

C. Jurisdictional Requirements

Various statutory provisions also outline jurisdictional 

limits on the issuance of Federal search warrants. As a starting 

point, a federal judge, if ―neutral and detached,‖ can issue a 

search warrant to search a person or property located within a 

district in which the judge is otherwise empowered to act. 

Thus, a United States Magistrate or District Judge assigned to 

the Southern District of Georgia can authorize a search of a 

home in the Southern District of Georgia, but not in the 

Northern District of Georgia. Sometimes, however, as outlined 

below, a federal judge can authorize a search conducted outside 

―his‖ district as well.

Within the District. Pursuant to Rule 41(b)(1), 

federal search warrants may be issued by federal 

judges, or a judge from a State court of record, ―to 

search for and seize a person or property located 

within the district.‖

Outside the District. Pursuant to Rule 41(b)(2), ―a 

magistrate judge with authority in the district has 
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authority to issue a warrant for a person or 

property outside the district if the person or 

property is located within the district when the 

warrant is issued but might move or be moved 

outside the district before the warrant is executed.‖

Terrorism Investigations. Pursuant to Rule 41(b)(3), 

―a magistrate judge - in an investigation of domestic 

terrorism or international terrorism - having 

authority in any district in which activities related 

to the terrorism may have occurred, may issue a 

warrant for a person or property within or outside 

that district.‖

Stored Wire or Electronic Communications. 

Pursuant to 18 U.S.C. § 2703(a) and (b), you may 

obtain federal search warrants for the contents of 

wire or electronic communications (email and its 

attachments) held in temporary storage by either an 

electronic communications service or remote 

computing service from ―a court with jurisdiction 

over the offense under investigation.‖ This means 

that you may obtain a federal search warrant from 

a federal judge who has jurisdiction over the offense 

in question, although not necessarily the place to 

be searched. For example, this provision would 

allow you to obtain a search warrant from a 

magistrate judge in the Southern District of Georgia 

for e-mails temporarily stored on the server of an 

Internet Service Provider in California.6

Tracking Devices. Pursuant to Federal Rule of 

Criminal Procedure 41(b)(4), ―a magistrate judge 

with authority in the district has authority to issue 

a warrant to install within the district a tracking 

device; the warrant may authorize use of the device 

to track the movement of a person or property 

 

6This nationwide provision does not apply to data that do not qualify as 

―stored electronic communications.‖ Seizure of ordinary data requires a 

warrant in every district in which that data may be located.
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located within the district, outside the district, or 

both.‖

D. The ―Neutral and Detached‖ Requirement

The primary reason for the warrant requirement is to 

interpose a ―neutral and detached magistrate‖ between the 

citizen and the officer engaged in the often competitive 

enterprise of ferreting out crime. For that reason, any judge 

who issues a federal search warrant must be ―neutral and 

detached.‖ This means that the judge issuing the search 

warrant should have no personal stake in the outcome of the 

investigation.

For example, a judge may not issue the search warrant 

and also participate in the search. The ―neutral and detached‖ 

magistrate requirement was found to have been violated when 

the issuing authority was the State Attorney General who was 

actively in charge of the investigation and later was chief 

prosecutor at the trial. Similarly, a warrant issued by the 

District Attorney does not meet the requirements of neutrality 

and detachment. Finally, when the issuing magistrate has a

financial interest in the issuance of search warrants, the 

magistrate is not ―neutral and detached.‖

XV. The Components of an Affidavit for a Search Warrant

The decision to proceed by search warrant is a drastic 

one, and must be carefully circumscribed so as to prevent 

unauthorized invasions of the sanctity of a person‘s home and 

the privacies of life. General warrants are prohibited by the 

Fourth Amendment. The problem posed by the general warrant 

is not that of intrusion per se, but of a general, exploratory

rummaging in a person‘s belongings. As noted by the Supreme 

Court:

The Warrant Clause of the Fourth Amendment 

categorically prohibits the issuance of any warrant 

except one ―particularly describing the place to be 

searched and the persons or things to be seized.‖ 

The manifest purpose of this particularity 
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requirement was to prevent general searches. By 

limiting the authorization to search to the specific 

areas and things for which there is probable cause 

to search, the requirement ensures that the search 

will be carefully tailored to its justifications, and 

will not take on the character of the wide-ranging 

exploratory searches the Framers intended to 

prohibit. Maryland v. Garrison.

To comply with the Fourth Amendment, every search 

warrant must particularly describe: (1) the place to be searched, 

and (2) the person or things to be seized.

A. Establishing a Nexus

A search warrant affidavit must establish a nexus (or 

connection) between the evidence being sought and the location 

being searched. An affidavit must provide facts that 

demonstrate probable cause that a piece of evidence (e.g., 

drugs) is located in the place to be searched (e.g., the 

defendant‘s home).

There are several specific factors used to determine 

whether the ―nexus‖ requirement has been satisfied. These 

factors include: (a) direct observations by law enforcement 

officers; (b) the nature of the crime; (c) the nature of the items 

sought; (d) the opportunity for concealment; and (e) the normal 

inferences as to where a criminal would hide evidence. For 

example, many courts have determined that if an individual 

deals drugs, evidence is likely to be found in the dealer‘s home. 

These courts rely upon the fact that evidence associated with 

drug dealing (e.g., drugs, paraphernalia, records, etc.) must be

stored somewhere, and that a drug dealer‘s home provides the 

most logical and safe place for the dealer to conceal those items. 

B. The Information Establishing Probable Cause 

Cannot Be ―Stale‖

In an affidavit for a search warrant, you must establish 

probable cause to believe the evidence sought is currently 
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located at the place to be searched. (An exception exists for 

anticipatory warrants; see Part C.) When the information is 

outdated, it is said to be ―stale.‖ Probable cause cannot be 

established based on stale information. There is no ―brightline‖ rule to establish at what point information becomes stale. 

Instead, courts consider the following factors:

Age of the Information. The age of the information 

alone, however, will not automatically determine 

whether the information is stale.

Whether the Criminal Activity is Continuing. Older 

information may still support probable cause when 

the criminal activity being investigating is ongoing 

(e.g., a large-scale fraud scheme).

The Type of Evidence Sought in the Search. Older 

information may still support probable cause when 

the evidence sought is of the sort that a suspect 

would reasonably keep for longer periods of time.

The Nature of the Location to be Searched. Older 

information may still support probable cause when 

the place to be searched is owned by the suspect.

C. Anticipatory Search Warrants

An anticipatory warrant is a warrant based upon an 

affidavit showing probable cause that at some future time (but 

not presently) certain evidence of crime will be located at a 

specified place. United States v. Grubbs. When judges issue 

an anticipatory search warrant, they are not deciding there is 

probable cause at the time they sign the warrant, but that 

probable cause will exist upon the occurrence of an identifiable 

―triggering event.‖ In many cases, the triggering event is a 

controlled delivery of drugs or other contraband by law 

enforcement officers. You must specifically describe the 

triggering event in the affidavit, and it must be something other 

than the mere passage of time. You may not execute an 

anticipatory warrant unless and until the triggering event 

specified in the affidavit occurs.
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D. Particularity and the Place to be Searched

Under the Fourth Amendment, the affidavit must 

particularly describe the place to be searched. In providing this 

description, you should be as technically accurate as possible. 

However, 100% technical accuracy is not required. Instead, 

―practical‖ accuracy determines whether the affidavit adequately 

describes the place to be searched. The description of the place 

to be searched must be such that the officer with a search 

warrant can, with reasonable effort, ascertain and identify the 

place intended. This means the place to be searched should be 

described with enough particularity that any law enforcement 

officer executing the warrant could reasonably know what 

location was intended. The test is whether the description is 

sufficient to enable the executing officer to locate and identify 

the premises with reasonable effort, and whether there is any 

reasonable probability that another premise might be 

mistakenly searched. Thus, an affidavit that contains a 

technically wrong address (e.g., ―187‖ versus ―178‖) will not 

automatically invalidate a search warrant, so long as the 

remainder of the description is sufficiently particular to allow 

law enforcement officers executing the warrant to ascertain and 

identify the place intended to be searched.

1. Particularity and Residences

The description of a place, such as a home, may vary 

depending on such factors as whether the house is in a rural or 

urban setting. When describing a home, state the nature of the 

dwelling (e.g., house, mobile home, etc.), along with the 

complete address, including street number, street name, town 

and state. Also describe the appearance of the property, such

as the number of stories, its color, house signs and their 

locations, and the type of construction (e.g., brick, wood, etc.). 

Where the residence is part of a multi-unit structure such 

as an apartment complex, include the unit number or 

apartment number.
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2. Particularity and Persons

When describing a person, state the person‘s name 

(including any known aliases), age, sex, race, eye color, hair 

color, weight, height, and any distinguishing marks such as 

tattoos or scars. If you have information as to where the person 

can be found, include it as well.

3. Particularity and Vehicles

When describing a vehicle, include the name of the 

owner, the make and model and year, color, license number, 

vehicle identification number, any unique markings, and where 

the vehicle can be found.

E. Particularity and the Persons or Things to be Seized

The Fourth Amendment requires that a warrant 

particularly describe ―the person or thing to be seized.‖ There 

are three distinct rationales underlying this particularity 

requirement. First, it limits the discretion of officers executing 

the warrant. Second, it informs the subject of the search what 

items the officers are entitled to take. And third, it defines the 

legally permissible scope of the search.

The degree of specificity required depends on the 

circumstances of the case and the type of items being sought. 

For example, a very specific description of the items is required 

when books or some other items that may be protected by the 

First Amendment right to free speech are sought. There is 

much more latitude when particularly describing contraband, 

such as drugs. This type of criminal evidence makes a precise 

description very difficult. The practical import of this difference 

is that, in a drug warrant, generic descriptions such as ―drug 

paraphernalia‖ or ―drug monies‖ are generally acceptable. 

Similarly, child pornography warrants can describe the items as 

―child pornography,‖ ―sexual conduct between adults and 

minors,‖ or as material ―depicting minors engaged in sexually 

explicit activity.‖
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Warrants for stolen property require a more particular 

description, especially when the items to be seized are of a 

common nature, such as jewelry.

F. Types of Items That Can Be Seized

Rule 41(c) provides that a warrant may be issued for any 

of the following: (a) evidence of a crime; (b) contraband; (c) 

fruits of crime, or other items illegally possessed; (d) property 

designed for use, intended for use, or used in committing a 

crime; or (e) a person to be arrested or a person who is 

unlawfully restrained. Each item that you wish to seize must 

fall into one, but may fall into more than one, of the above 

categories. As a practical example, photographs depicting child 

pornography are evidence of a crime, contraband, fruits of a 

crime, or other items illegally possessed.

When you execute a search warrant, the general rule is 

that you may seize only those items that are particularly 

described in the warrant. The ―plain view‖ doctrine, discussed 

above in section XIII, provides an exception to this general rule. 

When you have a warrant to search a given area for specified 

objects, and in the course of the search you come across some

other article of incriminating character, you may seize it. 

Horton v. California. For instance, if you have a warrant to 

search for 27‖ television sets, you can look in those areas where 

27‖ television sets could be hidden. If, when searching those 

areas, you come across an item that you immediately recognize 

as incriminating (e.g., a controlled substance on the floor of a 

bedroom closet), you may seize it based upon the ―plain view‖ 

doctrine. Remember, however, that the plain view doctrine does 

not expand the scope of a search warrant. Discovery of a 

controlled substance on the floor of the bedroom closet does 

not, without further judicial approval, allow you to broaden 

your search to include all areas that could contain controlled 

substances. You are simply allowed to seize the controlled 

substance and continue searching areas that could conceal a 

27‖ television set. The items you saw that are outside the scope 

of the warrant may be used to establish probable cause for an 

additional search warrant.
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G. False or Misleading Statements in the Affidavit

Before a search (or arrest) warrant is issued, the Fourth 

Amendment requires a truthful factual showing in the affidavit 

used to establish probable cause. In Franks v. Delaware the 

Supreme Court addressed the issue of whether a false 

statement by a government affiant invalidates a search or arrest 

warrant.

If the court determines by a preponderance of the 

evidence that a false statement was knowingly and 

intentionally, or with reckless disregard for the truth, included 

in the warrant affidavit, and if the false statement is necessary 

to the finding of probable cause, the false material is set aside. 

If the affidavit‘s remaining content does not establish probable 

cause, the search warrant is invalid and the fruits of the search 

are excluded.

XVI. Telephonic Search Warrants

A judge may wholly or partially dispense with a written 

affidavit and base a warrant on sworn testimony if doing so is 

reasonable under the circumstances. In such circumstances, 

Rule 41(d)(3), titled ―Requesting a Warrant By Telephonic or 

Other Means,‖ outlines the procedural rules for obtaining 

telephonic search warrants. Subsection (A) of the rule provides 

that:

A magistrate judge may issue a warrant based on 

information communicated by telephone or other 

reliable electronic means.

A. Purpose of Rule 41(d)(3)

The purpose of Rule 41(d)(3) is to encourage federal law 

enforcement officers to seek search warrants in situations when 

they might otherwise conduct warrantless searches.

B. Telephonic Warrants and Exigent Circumstances

The time necessary to obtain a traditional warrant is 
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relevant to a determination whether circumstances are exigent. 

Telephonic warrants typically take less time. Courts also 

consider the amount of time necessary to obtain a warrant by 

telephone in determining whether exigent circumstances exist. 

Exigent circumstances exist only when the critical nature of the 

circumstances clearly prevented the effective use of any warrant 

procedure. In sum, when an exigency is already occurring, no 

search warrant is required. When there is time to use 

traditional procedures, traditional procedures must be used. 

But in between, when an exigency is looming or impending, 

there is not enough time to get a traditional warrant, but there 

is enough time left to obtain a warrant telephonically, the 

telephonic search warrant procedure must be used. Officers 

cannot merely do nothing, let the situation develop until the 

exigency occurs, and then claim there was no time left to get a 

search warrant.

Failing to make a good faith attempt to obtain a 

telephonic warrant or to present evidence showing that a 

telephonic warrant was unavailable ordinarily requires 

suppression.

C. Who Can Issue Telephonic Warrants?

Unlike traditional federal search warrants issued 

pursuant to Rule 41, a state court judge may not issue a 

telephonic search warrant. Telephonic search warrants must be 

issued by federal judges.

D. Procedural Requirements

Rules 41(d)(3) and 41(e)(3) set out a variety of procedural 

requirements that must be met to obtain and execute a 

telephonic search warrant. There are actually two warrants 

involved in a telephonic warrant request: The ―original‖ warrant, 

completed by the magistrate judge, and a ―duplicate original 

warrant,‖ completed by the law enforcement officer involved.
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1. Prepare the “Duplicate Original Warrant”

First, you must prepare a ―proposed duplicate original 

warrant.‖ The duplicate original warrant must be in writing, 

although there is no requirement that the affidavit be in writing.

2. Read It Verbatim or Transmit it by Reliable 

Electronic Means

Second, you must read or otherwise transmit the 

contents of that document verbatim to the magistrate judge. 

This means that you may, if the option is available, transmit the 

duplicate original warrant to the magistrate judge by e-mail or 

facsimile.

3. Preparation of “Original” Warrant

If you read the contents of the proposed duplicate original 

warrant, the magistrate judge must enter those contents into an 

original warrant. Of course, the magistrate judge may modify 

the original warrant. In that case, the judge will direct you to 

modify the proposed duplicate original warrant accordingly.

If you send the proposed duplicate original warrant to the 

judge by reliable electronic means, that transmission may serve 

as the original warrant. A judge who chooses to modify the 

warrant must transmit the modified warrant back to you by 

reliable electronic means or direct you to modify the proposed 

duplicate original warrant accordingly.

4. The Warrants Are Signed

Next, upon determining to issue the warrant, the 

magistrate judge must immediately sign the original warrant, 

enter on its face the exact time it is issued, and direct you to 

sign the judge‘s name on the duplicate original warrant.
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5. Time of Execution Must Be Entered on the 

“Duplicate Original Warrant” 

Finally, you must enter the exact date and time it is 

executed.

E. Recording and Certification Requirements

In addition to the requirements listed above, recording 

and certification requirements must be met.

1. Oath or Affirmation

Upon learning that you are requesting a telephone 

warrant, the magistrate judge must place you under oath. You 

must be under oath from the inception of the call.

2. A Verbatim Record of the Conversation

The magistrate judge must make a verbatim record of the 

conversation with a suitable recording device, if available, or by 

a court reporter, or in writing.‖

3. Certification of the Recording

Finally, the magistrate judge must have any recording or 

court reporter‘s notes transcribed, certify the transcription‘s 

accuracy by signature, and file a copy of the record and the 

transcription with the clerk. The purpose of transcribing the 

taped conversation and certifying the transcription is to give 

reviewing courts an accurate account of the facts originally 

presented to the magistrate which resulted in the issuance of a 

search warrant.

XVII. Executing Search Warrants

There are both statutory and case law rules that guide 

you in the execution of a search warrant. Some of the more 

common rules are listed below.
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A. Who May Execute a Federal Search Warrant

Rule 41(e)(1) provides that a search warrant must be 

issued ―to an officer authorized to execute it.‖ Title 18 U.S.C. § 

31057 determines who qualifies as an authorized officer.

A search warrant may in all cases be served by any 

of the officers mentioned in its direction or by an 

officer authorized by law to serve such warrant, but 

by no other person, except in aid of the officer on 

his requiring it, he being present and acting in its 

execution.

It is generally left to the discretion of the executing 

officers to determine the details of how best to proceed with the 

performance of a search authorized by warrant. Issues can 

arise, however, when non-federal law enforcement officers assist 

in the execution of a federal search warrant.

State and local law enforcement officers may assist you in 

the execution of federal search warrants. These officers may be 

―cross-designated‖ as federal law enforcement officers, but are 

not required to be, so long as a federal law enforcement officer 

is directing the execution of the search warrant.

Private citizens may also lawfully assist you in the 

execution of a federal search warrant when three general 

requirements are met. First, the private citizen‘s role must be 

to aid your efforts. Private citizens cannot be present during 

the execution of a search warrant solely to further their own

goals. Second, you must be in need of assistance from the 

private citizen. This may occur, for example, when you execute 

a search warrant for computers. Computer technicians are 

often needed to ensure data is not lost during the seizure of the 

computer. Third, private citizens are limited to doing only those 

things that you are entitled to do.

 

7 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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B. When May a Federal Search Warrant Be Executed?

A federal search warrant must command the officer to 

execute the warrant during the daytime, unless the judge for 

good cause expressly authorizes execution at another time. The 

term ―daytime‖ means the hours between 6:00 a.m. and 10:00 

p.m. according to local time. To ―execute‖ the warrant means to 

make initial entry. After the initial entry, agents may remain on 

the premises as long as reasonably necessary to complete the 

search.

Nighttime execution of a search warrant is also 

permissible if you specifically request it. The judge will approve 

the request if there is reasonable cause to believe a nighttime 

search is necessary based on the likelihood of danger to the 

officers or destruction of evidence. 

Title 21 U.S.C. § 8798 provides that ―a search warrant 

relating to offenses involving controlled substances may be 

served at any time of the day or night if the judge or United 

States Magistrate Judge issuing the warrant is satisfied that 

there is probable cause to believe that grounds exist for the 

warrant and for its service at such time.‖ Such cases require no 

special showing for a nighttime search, other than a showing 

that the contraband is likely to be on the property or person to 

be searched at that time.

Finally, Rule 41(e)(2)(A) provides that a search warrant 

must be served within one of two possible periods of time. 

First, the rule provides for service ―within a specified time.‖ 

Thus, the search warrant itself may specify when service is 

required. Second, if no specified time period for the search is 

contained in the warrant itself, the warrant must be served 

within a period ―no longer than 10 days‖ from the date of 

issuance.

 

8 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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If these timing requirements are met, a premises warrant 

can be executed even if the suspect or other occupants are not 

present. 

Tracking warrants that authorize installation of a 

tracking device ―must command the officer to complete any 

installation authorized by the warrant within a specified time no

longer than 10 calendar days‖ from the date the warrant is 

issued. Installation must be performed in the daytime, ―unless 

the judge for good cause expressly authorizes installation at 

another time.‖ Rule 41(e)(2)(B)(i)-(ii).

C. Use of Force in Executing a Federal Search Warrant

The facts of each individual case determine whether you 

may lawfully handcuff the occupants of the premises while 

executing a search warrant. Whether that force was reasonable 

is determined by looking at the ―totality of the circumstances.‖ 

Among the factors considered by the courts in making this 

determination are: (a) the severity of the crime; (b) whether the 

suspect poses an immediate threat to the safety of the officers 

or others; (c) whether the suspect is actively resisting or 

attempting to evade arrest by flight; (d) the number of 

individuals the officers confronted; (e) whether the physical 

force applied was of such an extent as to lead to injury; and (f) 

whether the suspect was elderly, a child, or suffering from 

illness or medical disability.

D. Presenting the Warrant Prior to Beginning the 

Search

The general rule is that you are not required to present a 

copy of the search warrant to the occupant prior to beginning 

the search. However, where the circumstances permit, the best 

practice is to first provide a copy of the warrant to the occupant. 

At least one federal circuit court of appeals (the Ninth) requires 

this course of action where no justifiable reason exists that 

would excuse it.
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E. Answering the Telephone While Executing a Search 

Warrant

You may answer a ringing telephone without violating the 

Fourth Amendment if you are lawfully on the premises 

executing a search warrant. Any incriminating evidence 

acquired from those telephone calls is not subject to 

suppression on grounds of constitutionally protected privacy 

concerns.

F. Temporary Seizure of Weapons

When, during the execution of a search warrant, you find 

a dangerous weapon (such as a handgun) that is not listed in 

the warrant and is not obviously contraband or evidence, you 

may temporarily seize it for safety reasons. If the weapon is not 

contraband or evidence of crime, the weapon should be safely 

returned to its owner upon his release from the scene or at the 

conclusion of the warrant execution.

G. Detaining the Occupants of a Premises During the 

Execution of a Federal Search Warrant (The 

―Summers Doctrine‖)

A search warrant for contraband carries with it the limited 

authority to detain the occupants of the premises until a proper 

search is completed. Michigan v. Summers. This is sometimes 

referred to as the ―Summers Doctrine.‖ Contraband generally 

includes items that are unlawful to possess, such as controlled 

substances, illegal firearms, and stolen property. 

There are three distinct justifications for the detention of 

occupants during the execution of a contraband search 

warrant. First, there is a legitimate law enforcement interest in 

preventing flight in the event illegally possessed items are 

found. If contraband is found at the scene, there is a 

significant likelihood that one or more occupants of the 

premises will be arrested. It makes sense, therefore, to retain 

control of those persons until such a determination is made. 

Second, there is a societal interest in minimizing the risk of 

harm to the officers who are serving the search warrant. This is 
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accomplished when the officers are able to exercise 

unquestioned control of the situation. And third, the occupants 

of the premises may assist in the orderly completion of the 

search. Their self-interest may induce them to open locked 

doors or locked containers to avoid a use of force that might not 

only damage property, but may also delay completion of the 

search. 

For the ―Summers Doctrine‖ to apply, the occupant must 

be in or around the residence when the search warrant is being 

executed. When an individual approaches and attempts to 

enter a residence where a search warrant is being executed, 

Summers may provide a justification for detaining that person. 

The same rule applies to persons seen leaving the premises as 

officers are about to execute the warrant. While there is no 

bright-line geographic limit, the farther a person is from the 

premises to be searched, the less likely the detention will be 

upheld under the ―Summers Doctrine.‖

Warrants for ―mere evidence,‖ such as documents 

evincing tax fraud, do not fall squarely within the ―Summers

Doctrine.‖ During the execution of non-contraband warrants, 

you may detain occupants of the premises for a reasonable 

period of time. This would include the time required to identify 

the occupants and determine their relationship to the premises 

and the investigation at hand. Once you determine that an 

occupant is not needed for the orderly execution of the warrant 

and poses no threat of harm if released, you should ordinarily 

release that person. 

You may use reasonable force to conduct lawful 

detentions during the execution of any premises search 

warrant. Using handcuffs or other restraints is not 

automatically justified, however, simply because a detention is 

authorized. Rather, using restraints is a use of force that must 

be supported by the totality of the circumstances. In Muehler v. 

Mena police had a premises search warrant for weapons and 

evidence of gang membership that related to a recent drive-by 

shooting. While executing the warrant, police found Mena, who 

was not a suspect, asleep in one of the bedrooms. Mena was 

handcuffed and detained in the garage with other occupants for 
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two to three hours while agents conducted the search. Notably, 

the occupants of the residence outnumbered the officers 

assigned to supervise them. Relying on the dangerous nature of 

the crime under investigation, the items sought in the warrant, 

and the number of persons found on the premises, the Supreme 

Court held that both the length of Mena‘s detention and the use 

of handcuffs were justified. 

H. Frisking and Searching Persons on the Premises

You are not allowed to automatically ―frisk‖ every person 

located on the premises during the execution of a search 

warrant. Instead, as with any pat-down for weapons, you must 

be able to explain the facts that gave you reasonable suspicion 

to believe the person frisked was presently armed and 

dangerous. ―The  ̳narrow scope‘ of the Terry exception does not 

permit a frisk for weapons on less than reasonable belief or 

suspicion directed at the person to be frisked, even though that

person happens to be on premises where an authorized search 

is taking place.‖ Ybarra v. Illinois.

A premises search warrant does not authorize you to 

search any person located on the premises at the time the 

warrant is executed. Consistent with the Summers Doctrine, 

individuals located on the premises may be briefly detained. 

When the facts justify it, a frisk of some or all of those persons 

may be permissible. The mere fact that you have a premises 

search warrant does not authorize a full search of persons on 

the premises. Of course, if an individual present during the 

search is listed in the warrant, you may search that person.

I. Permissible Search Locations on a Premises

In United States v. Ross the Supreme Court discussed the 

scope of a search conducted pursuant to a premises search 

warrant:

A lawful search of fixed premises generally extends 

to the entire area in which the object of the search 

may be found and is not limited by the possibility 

that separate acts of entry or opening may be 
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required to complete the search. Thus, the warrant 

that authorizes an officer to search a home for illegal 

weapons also provides authority to open closets, 

chests, drawers, and containers in which the weapon 

might be found.

1. Premises, Outbuildings, and Curtilage

You may search all buildings and other structures within 

the curtilage, even if not specifically referenced in the search 

warrant. The best practice, however, is to list all known 

outbuildings or significant structures in the search warrant.

2. Vehicles Located on the Curtilage

Pursuant to the premises warrant, you may search those 

vehicles located on the curtilage of the property that are or 

appear to be owned by or under the control and dominion of the 

premises owner/occupier, even if not specifically listed in the 

search warrant. The vehicle must be parked on the curtilage of 

the home where the warrant is being served. The best practice 

is to specifically list the owner‘s known vehicles in the search 

warrant. Some circuits, such as the Seventh and Fifth Circuits, 

allow a search of vehicles within the curtilage that are not 

owned or controlled by the premises owner, but that have some 

other logical connection to the premises. Vehicles that may not

be searched in any jurisdiction are those that are incidentally 

present, such as a delivery vehicle.

3. Containers

Generally, you may search any container located within 

the premises that is capable of holding the property that is the 

subject of the warrant. However, if the container belongs to a 

person who is only visiting the premises, special concerns arise. 

In addressing this issue, the federal courts have taken two 

different approaches.

The first focuses on the relationship between the visitor 

and the premises being searched. Under this approach, the 

stronger the relationship is between the visitor and the 
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premises being searched, the more likely you may search the 

visitor‘s personal possessions. You may search the property of 

an overnight guest of the homeowner. On the other hand, an 

individual who was simply a casual visitor to the home would 

likely not have a significant enough connection with the 

property to justify a search of the individual‘s belongings. You 

may not search the personal possessions of a dinner guest or a 

commercial visitor (e.g., appliance repairman) pursuant to the 

warrant.

The second approach focuses on the physical possession 

or location of the item in question. Under this approach, you 

may not search an item that is in the physical possession of the 

visitor. In that circumstance, the container is an extension of 

the person and clearly outside the scope of a premises search 

warrant. You may search an item not in the physical 

possession of the visitor because it falls outside the scope of a 

―personal‖ search.

J. Damage or Destruction of Property During the 

Search

When you execute search warrants, you may occasionally 

damage or destroy property in order to conduct a complete and 

thorough search. The damage or destruction of an individual‘s 

property during the execution of a search warrant does not 

automatically violate the Fourth Amendment. However, such 

damage or destruction will constitute an unreasonable search 

and seizure if the destruction was not reasonably necessary to 

the execution of the warrant.

K. Preparing an Inventory

Rule 41(f)(1)(B) outlines the requirements for completion 

of an inventory following the execution of a search warrant. 

Specifically, the Rule provides that ―[a]n officer present during 

the execution of the warrant must prepare and verify an 

inventory of any property seized.‖ Further, the officer who 

prepares the inventory ―must do so in the presence of another 

officer and the person from whom, or from whose premises, the 
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property was taken.‖ If either another officer or the person 

whose property is being seized ―is not present, the officer must 

prepare and verify the inventory in the presence of at least one 

other credible person.‖

L. A Copy of the Warrant and the Inventory Must Be 

Provided

Rule 41(f)(1)(C) requires that you provide a copy of the 

warrant and the inventory following completion of the search. 

Specifically, the Rule provides that ―the officer executing the 

warrant must give a copy of the warrant and a receipt for the 

property taken to the person from whom, or from whose 

premises, the property was taken; or leave a copy of the warrant 

and receipt at the place where the officer took the property.‖

M. Return of the Warrant

Rule 41(e)(2) requires that a search warrant ―designate 

the magistrate judge to whom it must be returned.‖ Rule 

41(f)(1)(D) requires that ―the officer executing the warrant must 

promptly return it - together with a copy of the inventory - to 

the magistrate judge designated on the warrant. The judge 

must, on request, give a copy of the inventory to the person 

from whom, or from whose premises, the property was taken 

and to the applicant for the warrant.‖ Rule 41(f)(3) states, 

however, that ―[u]pon the government‘s request, a magistrate 

judge – or if authorized by Rule 41(b), a judge of a state court of 

record – may delay any notice required by this rule if the delay 

is authorized by statute.‖ Examples of statutes that permit 

delayed notice are Rule 41(f)(2)(C) (warrants for electronic 

tracking devices), and 18 U.S.C. § 3103a(b) (―sneak and peek‖ 

or ―covert entry‖ warrants).

XVIII. The “Carroll Doctrine” (Mobile Conveyance 

Exception)

First established by the Supreme Court in the 1925 case 

of Carroll v. United States, the ―Carroll Doctrine‖ provides that 

if you have probable cause to believe that a mobile conveyance 
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located in a public place has evidence of a crime or contraband 

located within it, you may search it without first obtaining a 

warrant.

A. Rationales for the Rule

There are two separate and distinct rationales underlying 

the mobile conveyance exception to the warrant requirement. 

First, the inherent mobility of vehicles typically makes it 

impracticable to require a warrant to search, in that the vehicle 

can be quickly moved out of the locality or jurisdiction in which 

the warrant must be sought. Second, while the original focus 

was on a vehicle‘s inherent mobility, recent cases have focused 

on an individual‘s reduced expectation of privacy in a vehicle to 

support a warrantless search based on probable cause. 

Pennsylvania v. LaBron.

B. Prerequisites for a Search Under the ―Carroll 

Doctrine‖

There are two requirements for a lawful search under the 

mobile conveyance exception. First, there must be probable 

cause to believe that evidence of a crime or contraband is 

located within the vehicle. This means that before conducting a 

warrantless search of a vehicle, you must have sufficient facts 

available to you to successfully obtain a warrant from a 

magistrate judge. Under the ―Carroll Doctrine,‖ however, the 

requirement to obtain the warrant is excused.

You may establish probable cause to search a vehicle in a 

variety of ways. For example, you may be able to establish 

probable cause based on a tip provided by a reliable confidential 

informant. You may establish probable cause through your 

personal observation of evidence or contraband in open view 

inside a vehicle. The ―plain smell‖ corollary to the plain view 

doctrine may also allow you to establish probable cause to 

search a vehicle based upon your sense of smell.

The second requirement for a valid search under the 

mobile conveyance exception is that the vehicle be ―readily 
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mobile‖ at the time you encounter it. ―Readily mobile‖ means 

the vehicle reasonably appears to be operational, or appears as 

though it will be operational with minor effort or repair. A 

vehicle stuck in the mud, for instance, is inherently mobile even 

though the driver cannot drive it away immediately. On the 

other hand, a vehicle that will obviously remain immobile for a 

long time – such as a car up on blocks – should be treated as a 

stationary container, rather than a mobile conveyance. 

There is no requirement that a mobile conveyance

actually be moving or even occupied at the time of the search. 

The ―Carroll Doctrine‖ will still apply as long as the probable 

cause and mobile conveyance prerequisites are met.

C. There is No ―Exigency‖ Required to Conduct a 

Search Under the ―Carroll Doctrine‖

There is no ―exigency‖ required to conduct a warrantless 

vehicle search; all that is required is a mobile conveyance and 

probable cause. Thus, even if you have the opportunity to 

obtain a warrant and fail to do so, the search will still be valid if 

the two requirements discussed above are present.

D. The Timing of a Search Under the ―Carroll Doctrine‖

Once you have probable cause to search a readily mobile 

vehicle, you may conduct the search immediately or later at the 

police station. There is no requirement that the warrantless 

search of a vehicle occur contemporaneously with its lawful 

seizure. The justification to conduct such a warrantless search 

does not vanish once the car has been immobilized. ―Carroll

Doctrine‖ searches are lawful regardless of the likelihood that 

the car will be driven away, or that its contents will be tampered 

with during the period required for you to obtain a warrant.

Even though the courts have given you wide latitude in 

deciding when to conduct a vehicle search, you are still required 

to act ―reasonably‖ and may not indefinitely retain possession of 

a vehicle and its contents before you complete a vehicle search. 

If time permits, a search warrant for the vehicle should be 
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obtained, even in situations where a warrantless search may be 

permissible.

E. The Scope of a Search Under the ―Carroll Doctrine‖

In United States v. Ross the Supreme Court defined the 

permissible scope of a search conducted pursuant to the mobile 

conveyance exception: ―We hold that the scope of the 

warrantless search authorized by [the mobile conveyance] 

exception is no broader and no narrower than a magistrate 

could legitimately authorize by warrant. If probable cause 

justifies the search of a lawfully stopped vehicle, it justifies the 

search of every part of the vehicle and its contents that may 

conceal the object of the search.‖ Thus, if a search warrant 

could authorize you to search for an item in a particular 

location, such as the passenger compartment or trunk of the 

vehicle, you may search there without a warrant under the 

mobile conveyance exception to the warrant requirement.

Probable cause to search does not automatically entitle 

you to search every part of a vehicle. Scope of search applies to 

warrantless searches just as it does to searches authorized by a 

warrant. Any search based upon probable cause is necessarily 

limited by the nature of the object being sought. If you have 

probable cause to believe that a vehicle contains a full-size 

shotgun, you may not lawfully look inside the glove 

compartment during your search.

You are generally not required to have a ―particularized‖

suspicion that evidence (e.g., drugs) is located in the trunk 

before you may lawfully search that area. For example, if drugs 

(or drug paraphernalia) are found in the passenger 

compartment of a vehicle, you may typically search the trunk 

for additional drugs. This is true even if the drugs found in the 

passenger compartment are small, ―personal use‖ amounts.

If you have probable cause to search the entire vehicle 

and discover a closed container during your search, you may 

search the container, whether locked or unlocked, if what you 

are seeking could be concealed inside of it. The scope of a 

warrantless search of an automobile is not defined by the 
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nature of the container in which contraband is hidden. Rather,

it is defined by the items you are searching for and the place in 

which there is probable cause to believe they may be found.

If you have probable cause to believe a specific container 

inside a vehicle contains evidence of a crime or contraband, you 

may stop and search the vehicle to retrieve that container. 

Once retrieved, you may search the container without a warrant 

under the vehicle exception. California v. Acevedo. Importantly, 

the probable cause relating to the specific container does not 

support a general search of other areas of the vehicle (e.g., the 

glove compartment). If you wish to extend your search to the 

entire vehicle, you must have some additional justification to do 

so, such as additional probable cause gained after the stop, 

consent, or a search incident to arrest.

Finally, the mobile conveyance exception has been 

extended to include a passenger‘s belongings. When you have 

probable cause to search a car, you may search passengers‘ 

belongings found in the car that are capable of concealing the 

object of the search.

XIX. Searches Based on Exigent Circumstances

It is a well-established rule of law that searches 

conducted without warrants are presumptively unreasonable, 

subject to only a few limited exceptions. A warrantless search 

based upon an exigent circumstance is one such exception. 

Exigent circumstances exist when a reasonable person would 

believe that, based on the available facts, an immediate search 

is necessary to prevent the escape of a suspect, the destruction 

of evidence, or the death or injury of a person.

The government always has the burden of proving a 

lawful search. For this exception to the warrant requirement, 

the government must prove both the existence of probable 

cause and the exigent circumstance. Factors considered by 

courts in determining whether exigent circumstances exist 

include: (a) the gravity or violent nature of the offense with 

which the suspect is to be charged; (b) a reasonable belief that 
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the suspect is armed; (c) probable cause to believe the suspect 

committed the crime; (d) strong reason to believe the suspect is

in the premises being entered; (e) the likelihood that a delay 

could cause the escape of the suspect or the destruction of 

essential evidence; and (f) the safety of the officers or the public 

jeopardized by delay.

The scope of a warrantless search is ―strictly 

circumscribed by the exigencies which justify its initiation.‖ 

Once the exigent circumstances that justified the warrantless 

search no longer exist, the right to conduct a warrantless 

search also ends.

A number of situations are covered under the definition of 

exigent circumstances. Below are three of the most common 

types of exigent circumstances you are likely to encounter.

A. Hot Pursuit

The parameters of the hot pursuit exception were 

established by the Supreme Court in Warden v. Hayden and 

United States v. Santana. In general, the following 

requirements must exist for hot pursuit to be a lawful exigent 

circumstance:

Probable Cause to Arrest. Probable cause must 

exist to arrest the suspect.

Serious Crime. The warrantless entry into the home 

must be for a ―serious‖ crime. The more serious the 

crime, the more likely that the warrantless entry to 

affect the arrest will be upheld. ―[I]t is difficult to 

conceive of a warrantless home arrest that would 

not be unreasonable under the Fourth Amendment 

when the underlying offense is extremely minor.‖ 

Welsh v. Wisconsin.

Immediate or Continuous Pursuit. There must be an 

―immediate or continuous‖ pursuit of the suspect. 

This does not require that you actually observe the 

suspect commit the crime, nor does it require that 
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you actually see the suspect flee from the scene of 

the crime.

From a Public Place. ―Hot pursuit‖ occurs when a 

suspect enters a home from a public place. A 

suspect may not defeat an arrest which has been 

set in motion in a public place by escaping to a 

private place. 

Probable Cause to Believe That the Suspect is in the 

Residence. You must have probable cause to 

believe the suspect is inside. Probable cause may 

be based on your own observations or on 

information provided to you by reliable sources.

B. Destruction or Removal of Evidence

A second common exigent circumstance involves the 

actual or potential destruction or removal of evidence. This 

exception allows you to make a warrantless search of an area or 

item when you have sufficient facts that would lead a 

reasonable person to believe that evidence is being, or will be, 

destroyed or removed in the time it would take the officers to 

obtain a search warrant. The test is an objective one, focusing 

on what a reasonable person in your position would believe 

based on the facts available to you at the time.

An example of when the potential destruction of evidence 

may allow a warrantless entry and search is when an occupant 

of a home, upon seeing police officers standing on her porch, 

hurriedly begins to pour illegal drugs down a drain. Another 

example is the warrantless drawing of blood from a DUI suspect 

arrested at 1 a.m. Were the blood not drawn and evidence 

(alcohol content) preserved, the body itself would destroy much 

of the evidence before a warrant could be obtained.

The federal circuit courts of appeal differ in what they 

require for a lawful warrantless search to prevent destruction of 

evidence. The majority rule, (followed in the Sixth, Eighth, and 

D.C. Circuit Courts of Appeal), holds that a warrantless search 
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to prevent the destruction or removal of evidence is justified if 

the government can prove two factors: (1) a reasonable belief 

that third parties are inside the dwelling; and (2) a reasonable 

belief that the loss or destruction of evidence is imminent.

In contrast, the Tenth Circuit Court of Appeals has 

announced a four-part test to determine whether the imminent 

destruction of evidence will justify a warrantless entry: (1) any 

entry should be made pursuant to clear evidence of probable 

cause; (2) a warrantless entry is available only for serious 

crimes and in circumstances where the destruction of evidence 

is likely; (3) the entry must be limited in scope to the minimum 

intrusion necessary; and (4) the entry must be supported by 

clearly defined indicators of exigency that are not subject to 

police manipulation or abuse.

C. Emergency Scene

The need to protect or preserve life typically justifies 

actions that would otherwise violate the Fourth Amendment. 

Numerous state and federal cases have recognized that the 

Fourth Amendment does not bar you from making warrantless 

entries and searches when you reasonably believe that a person 

within is in need of immediate aid.

Examples of ―emergency‖ situations in which courts 

found exigent circumstances include: (a) a report of a woman 

and child in danger in a crack house; (b) a report that a victim 

had been stabbed; (c) an explosion in an apartment; (d) a report

that children had open access to controlled substances; (e) the 

need to render medical aid to a defendant who had been shot by 

the police; (f) reports of gunshots from inside a residence; (g) 

activation of a burglar alarm; (h) finding a blood puddle on the 

driveway with a trail of blood leading into the home; and (i) the 

existence of a methamphetamine lab.

A valid emergency scene search must usually meet two 

requirements: (1) you must have objectively reasonable 

grounds to believe that there is an emergency at hand and an 

immediate need for your assistance for the protection of life or 
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property; and (2) there must be some reasonable basis, 

approximating probable cause, to associate the emergency with 

the area or place to be searched.9 The term ―probable cause‖ in 

this context is different from how that term is typically used. 

Probable cause generally means facts exist that would lead a 

reasonable person to believe that evidence of a crime will be 

discovered. But in the context of an emergency scene situation, 

the term ―probable cause‖ means facts exist that would lead a 

reasonable person to believe that a person is in some type of 

danger.

As with any lawful warrantless search, you may seize any 

evidence that is in plain view during the course of your

legitimate emergency activities. For instance, firefighters 

responding to a call may seize evidence of arson that is in plain 

view.

Finally, there is no ―murder scene‖ or ―crime scene‖ 

exception to the Fourth Amendment. In three separate cases, 

the Supreme Court has rejected attempts at creating such an 

exception. In Mincey v. Arizona the Court declined ―to hold that 

the seriousness of the offense under investigation itself creates 

exigent circumstances of the kind that under the Fourth 

Amendment justify a warrantless search.‖ Later, in Thompson 

v. Louisiana the Court found a ―murder scene‖ exception 

―inconsistent with the Fourth and Fourteenth Amendments.‖ 

Lastly, in Flippo v. West Virginia the Court reiterated its earlier 

rejections of a ― ̳murder scene exception‘ to the Warrant Clause 

of the Fourth Amendment.‖

XX. Consent Searches

―It is ... well-settled that one of the specifically established 

exceptions to the requirements of both a warrant and probable 

cause is a search that is conducted pursuant to consent.‖

Schneckloth v. Bustamonte. When you obtain valid consent to 

search a given area or object, neither reasonable suspicion, nor 

 

9 A previous requirement that the search not be primarily motivated by the 

intent to arrest and seize evidence was eliminated by Brigham City v. Stuart.
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probable cause, is required. In situations where you have some 

evidence of illicit activity, but lack probable cause to arrest or 

search, a search authorized by valid consent may be the only 

means of obtaining important and reliable evidence. Consent 

may be expressly sought from and given by a suspect (e.g., ―Do 

you mind if we search your vehicle?‖).

A. The Requirements for a Consent Search

There are two requirements for a consent search to be 

valid: (1) the consent must be voluntarily given, and (2) the 

consent must be given by an individual with either actual or 

apparent authority over the place to be searched.

1. Voluntariness

The Fourth Amendment requires that consent not be 

coerced, by explicit or implicit means, by threat or covert force. 

Any consent provided must be given voluntarily, and not as a 

result of duress or coercion. Courts look at the totality of the 

circumstances surrounding a grant of consent, analyzing all the 

circumstances to determine whether it was voluntary or 

coerced. Factors a court will consider in deciding whether 

consent was given voluntarily include:

The age, education, and intelligence of the 

individual granting consent;

The individual‘s knowledge of the right to refuse to 

give consent;

The length of the individual‘s detention;

The repeated and prolonged nature of any 

questioning that occurred;

Whether the consent was given in writing;

The use of physical punishment, such as the 

deprivation of food or sleep;
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Whether the individual cooperated in the search, 

such as by assisting law enforcement officers in 

opening a locked container;

Whether the individual was in custody at the time 

the consent was given;

The presence of coercive police procedures, such as 

displaying weapons or using force;

The individual‘s past experience in dealing with law 

enforcement officers;

Whether the individual was under the influence of 

any drugs or alcohol;

Whether the individual was notified of his Miranda

rights prior to giving consent;

Whether the police made promises or 

misrepresentations to the individual in order to 

obtain the consent;

The location where the consent was given (i.e., was 

it given on a public street or in the confines of a 

police station);

Whether the individual was told a search warrant 

could be obtained; and

Whether there were repeated requests for consent 

made to the individual.

Acquiescence to a law enforcement officer‘s show of 

authority is not voluntary consent. Consent will not be valid if 

it is given after you falsely assert an independent right to make 

the search. For example, consent given only after you assert 

that you have a warrant is not truly voluntary in that you are

―announcing in effect that the [individual] has no right to resist 

the search.‖ Bumper v. North Carolina. The government has 
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the burden of proving that the consent was voluntarily given,

and it is not enough to show mere acquiescence to a claim of 

lawful authority.

Consent may be inferred from a suspect‘s words or 

actions. For example, you knock on a person‘s door and, when 

the person answers, you ask for permission to enter the 

residence. Without saying anything, the person steps back and 

clears a path for you to enter the home. In this case, the 

person‘s actions have given you consent to enter the home, even 

though no words were spoken.

2. Actual or Apparent Authority

The second requirement is that the consent must be given 

by an individual with either actual or apparent authority over 

the place to be searched. Actual authority comes ―from the 

individual whose property is searched.‖ Illinois v. Rodriguez. A

third-party ―who possesses common authority over or other 

sufficient relationship to the ... effects sought to be inspected‖ 

has actual authority to consent to a search. United States v. 

Matlock. Common authority is not determined solely by who 

owns the property. Rather, it is based on mutual use of the 

property by persons generally having joint access or control.

Any of the joint users has the authority to consent, and the 

others have assumed the risk that one of them might permit the 

shared area or item to be searched.

The consent of one party who has authority over the place 

to be searched, however, is not valid if another party with 

authority is present and expressly refuses to give consent for 

the search. You are not required to attempt to locate any or all 

of those who might have authority over the premises to 

determine whether they are willing to consent to search; 

however, you may not isolate or remove the potentially nonconsenting party just to avoid a possible objection to the search. 

Georgia v. Randolph.

You may also obtain valid consent from an individual who 

has apparent authority over the place or item to be searched. 
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This typically occurs when you conduct a warrantless search 

based upon the consent of a third-party who you, at the time of 

the search, reasonably -- but mistakenly -- believe possesses

common authority over the object. If your belief is reasonable

considering all of the facts available to you at the time the 

search is conducted, the search will still be valid, despite the 

fact that the consenting party lacked actual authority to give 

consent. 

B. The Scope of a Consent Search

―The standard for measuring the scope of a suspect‘s 

consent under the Fourth Amendment is that of  ̳objective‘

reasonableness – what would the typical reasonable person 

have understood by the exchange between the officer and the 

suspect?‖ Florida v. Jimeno. In answering this question, 

courts look at not only the words used by both you and the 

person, but also the overall context in which the exchange took 

place. For example, in a situation involving a consent search of 

a vehicle, a general grant of permission to ―search the car‖

allows an examination of the entire vehicle, to include any 

containers or compartments within the vehicle that could hold 

the item(s) sought.

It is typically unreasonable, however, to believe that an 

individual who has given a general consent to search is 

consenting to the damage or destruction of the property. Seek 

additional, express permission to search a locked container 

(e.g., a locked briefcase) and proceed only if consent is granted. 

To support the reasonableness of any such search, refrain from 

damaging or destroying the container in the process of opening 

it.

An individual may limit the scope of any consent by 

saying something like, ―You may search here but not there.‖ 

You must honor such a limitation. An individual may also 

revoke consent. When consent is revoked, you are required to 

stop searching, unless another exception to the Fourth 

Amendment‘s warrant requirement (e.g., probable cause to 

search a vehicle) is present.
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C. Third-Party Consent Situations

The types of third party consent situations that you may 

confront are limitless. The following are some of the most 

frequently occurring ones.

1. Husband - Wife Situations

Absent an affirmative showing that the consenting spouse 

has no access to the property searched, the courts generally 

hold that either spouse may consent to search all of the 

couple‘s property. Several federal circuits have held that a 

spouse‘s consent may be effective even after he or she leaves the 

marital home.

2. Parent - Child Situations

Consent in parent-child situations can be divided into 

cases in which the child is a minor, and those where the child is 

eighteen years or older.

In cases where the child is a minor, a parent can almost 

always consent to a search of the child‘s belongings or living 

area, such as the bedroom.

Circuit courts have addressed the issue of whether a 

minor child may consent to the search of a parent‘s home or 

property. Assuming that the child has authority over the area 

to be searched, these circuits hold that the fact that the child is 

a minor does not, per se, bar a finding of actual authority to 

grant third-party consent to search. A child‘s minority is simply 

a factor in determining the voluntariness of the consent. 

Consent from a child as young as nine has been found valid. 

Exercise caution and obtain additional guidance from the 

appropriate legal advisor in any situation involving the consent 

of a minor.

When an adult child still lives in the parent‘s home, the 

issue of parental consent is more complicated. In determining 

whether a parent may consent to a search of an adult child‘s 

living areas, courts have focused on two distinct questions.
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First, does the adult child pay rent to live in the home? 

Where rent is being paid, courts typically treat the situation as 

a landlord-tenant relationship rather than a parent-child 

relationship. Second, has the adult child taken any steps to 

deny the parents access or use of the property or living area in 

question? Examples of this include the installation of locks on 

a bedroom door, or an explicit or implicit agreement between 

the parties that the parents will not access the area. The more 

steps the adult child has taken to deny parents access, the 

more likely those parents will be unable to consent to a search 

of the child‘s property or living area within the parents‘ home.

3. Roommate Situations

An individual who shares a residence with another person 

assumes the risk that the other person might consent to a 

search of all common areas of the residence, as well as all areas 

to which the other person has access. However, one roommate 

may not generally give consent to search the personal property 

or exclusive spaces (e.g., bedroom) of the other.

XXI. Inventory Searches

Inventory searches are a well-defined exception to the 

warrant requirement of the Fourth Amendment. Once an item 

(e.g., a vehicle) has been lawfully impounded by law 

enforcement officers, an inventory search may be conducted if it 

is done ―reasonably.‖ South Dakota v. Opperman. Inventory 

searches are routine, non-criminal procedures which do not 

require probable cause or a warrant. An inventory must not be 

a ruse for a general rummaging in order to discover 

incriminating evidence. Rather, the policy or practice governing 

inventory searches should be designed to produce a list of 

personal property found in the vehicle. An inventory search is

invalid when conducted in bad faith or for the sole purpose of 

investigation.

Criminal evidence found during a lawfully conducted 

inventory search may be seized under the ―plain view‖ doctrine 

and may provide probable cause for a warrant or for a more 
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thorough search under an exception such as the ―Carroll

doctrine.‖

A. Justifications for Inventory Searches

The Supreme Court has recognized three justifications for 

allowing the inventory of lawfully impounded property without 

first obtaining a warrant. First, law enforcement must protect 

the owner‘s property while it remains in police custody. 

Second, an inventory protects the police against claims or 

disputes over damaged, lost or stolen property. And third, an 

inventory is necessary to protect the police from potential 

dangers that the property may pose.

B. Requirements for Inventory Searches

To conduct a lawful inventory search, two requirements 

must be met. First, you must have lawfully come into the 

possession of the property being inventoried. And second, you 

must conduct the inventory pursuant to a standardized policy.

1. Lawful Impoundment 

An inventory search will not be valid if the property 

searched is not lawfully in the custody of the law enforcement 

officers who perform the inventory. The impoundment of an 

individual‘s property must be based upon either: (a) probable 

cause, such as a violation of local and state motor vehicle laws 

(e.g., multiple parking violations), or (b) law enforcement‘s 

―community caretaking‖ function.

2. Standardized Policy

Your agency must have a standardized policy governing 

how inventory searches are to be conducted, and you must 

know and follow the policy. Standardized policies promote the 

underlying rationale for the inventory exception to the Fourth 

Amendment warrant rule by removing officer discretion to 

determine the scope of the inventory search. This absence of

discretion ensures that inventory searches will not be used as a 

purposeful and general means of discovering criminal evidence.
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While there must be a standardized inventory policy, 

several courts have upheld unwritten policies based upon 

testimony regarding standard practices within an agency. 

Nonetheless, the best way for law enforcement agencies to avoid 

potential legal challenges to inventory searches is to reduce 

their standardized inventory policy to writing. Law enforcement 

agencies may establish their own standardized policies, so long 

as they are reasonably constructed to accomplish the goals of 

inventory searches and are conducted in good faith.

C. Scope of Inventory Searches

The scope of an inventory search is defined by the 

standardized inventory policy of the particular agency involved. 

As a general rule, inventory searches may not extend any 

further than is reasonably necessary to discover valuables or 

other items for safekeeping. For example, when conducting an 

inventory search of a vehicle, you would not be justified in 

looking inside the heater ducts, the door panels, the gas tank,

or the spare tire. Valuables are not normally kept in such 

locations.

You may conduct an inventory search of passenger 

compartments, including the glove compartment, since it is a 

customary place for documents of ownership and registration as 

well as a place for the temporary storage of valuables. 

Inventory searches of the trunk have also been found valid. 

You may also conduct an inventory search of containers, locked 

or unlocked, so long as the standardized inventory policy 

permits. Excessive or unnecessary destruction of property in 

the course of an inventory search may violate the Fourth 

Amendment, even though the entry itself is lawful and the fruits 

of the search not subject to suppression. When a trunk is 

locked, use keys or other tools to enter it in order to comply 

with the Fourth Amendment. Finally, a valid inventory search 

may include the engine compartment of a vehicle.

D. Location of an Inventory Search

Although inventory searches typically occur at a police 

station or an impoundment facility, rather than at the time of 
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the arrest, the Fourth Amendment does not require that police 

conduct inventory searches at any particular location. You may 

conduct an inventory search on-site, before impounded 

property is removed.

XXII. Administrative Searches

The Supreme Court has allowed searches for certain 

administrative purposes without particularized suspicion of 

misconduct, provided that those searches are appropriately 

limited. Generally termed ―inspections,‖ these types of 

administrative searches take place in a variety of different 

forums, including both personal and real property. 

Administrative searches must be conducted as part of a general 

regulatory scheme in furtherance of an administrative purpose, 

rather than as a part of a criminal investigation to secure 

evidence of a crime. The regulatory scheme must have a 

properly defined scope and limit the discretion of the officers 

conducting the search. An inspection cannot be used as a 

subterfuge to avoid Fourth Amendment requirements in order 

to obtain criminal evidence.

Criminal evidence discovered during the course of a valid 

administrative search may be seized under the ―plain view‖

doctrine and may be used to establish probable cause to obtain 

a criminal search warrant.

A. Sobriety Checkpoints

The use of highway sobriety checkpoints does not violate 

the Fourth Amendment. Michigan Dep‘t of State Police v. Sitz. 

In reaching this conclusion, the Supreme Court found that a 

state‘s interest in preventing accidents caused by drunk drivers 

outweighed the minimal intrusion upon drivers who are 

temporarily stopped.

B. Driver‘s License and Registration Checkpoints

In Delaware v. Prouse the Supreme Court suggested that 

a Sitz type roadblock to verify drivers‘ licenses and vehicle 
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registrations would be permissible. Several federal circuits have 

since expressly approved them.

C. Information-Gathering Checkpoints

―[S]pecial law enforcement concerns will sometimes justify 

highway stops without individualized suspicion.‖ Illinois v. 

Lidster. Such is the case where the checkpoint is set up to 

gather information regarding a previous crime. In Lidster, 

police set up a checkpoint in the area of a fatal accident one 

week after it occurred. The police were trying to find motorists 

who may have been witnesses to the accident. The Supreme 

Court upheld the checkpoint. No individualized suspicion is 

necessary when the stop‘s primary law enforcement purpose is 

not to determine whether a vehicle‘s occupants are committing 

a crime, but to ask them, as members of the public, for help in 

providing information about a crime in all likelihood committed 

by others.

D. Checkpoints for General Crime Control Purposes

The Supreme Court has never approved a checkpoint 

program whose primary purpose was to detect evidence of 

ordinary criminal wrongdoing. In City of Indianapolis v. 

Edmond police set up a checkpoint to discover drugs. The 

Supreme Court determined that because the primary purpose of 

the checkpoint was to advance ―the general interest in crime 

control,‖ the checkpoint was unlawful. Individualized suspicion 

is required when police employ a checkpoint primarily for the 

ordinary enterprise of investigating crimes.

E. Administrative Inspections of Businesses

Inspections of businesses, such as those in the food and 

drug industry, are relatively commonplace. These businesses 

are subject to inspection for a variety of reasons, including 

ensuring compliance with fire, health, and safety regulations. 

Generally speaking, these types of administrative searches must 

be conducted pursuant to ―administrative‖ warrants.
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For an administrative warrant, probable cause in the 

criminal law sense is not required. Instead, courts will look to 

see if a ―valid public interest‖ justifies the inspection. If it does, 

then there is probable cause to issue a warrant for a limited 

administrative inspection. This probable cause may be based 

on specific evidence of an existing violation or on reasonable 

legislative or administrative standards for conducting an 

inspection. There must be a regulatory scheme that authorizes 

any administrative search. This means that legislative, 

administrative, or judicially prescribed standards for 

conducting an inspection must exist before there is probable 

cause to issue an administrative warrant.

Consent to conduct an administrative search should 

normally be sought before seeking an administrative search 

warrant. As a practical matter and in light of the Fourth 

Amendment‘s requirement that a warrant specify the property 

to be searched, warrants should normally be sought only after 

entry is refused.

Special rules apply when the administrative inspection is 

conducted on the premises of what the law terms a ―closely 

regulated‖ industry. Firearms and alcohol industries are among 

the most ―closely regulated‖ industries. These types of business 

establishments may ordinarily be inspected without an 

administrative warrant.

There are two justifications for allowing warrantless 

administrative searches of closely regulated industries. First, if 

an administrative inspection is to be effective and serve as a 

credible deterrent, then unannounced, even frequent, 

inspections are essential. Requiring an administrative search 

warrant for inspections of closely regulated industries could 

easily frustrate inspection; and if the necessary flexibility as to 

time, scope, and frequency is to be preserved, the protections 

afforded by a warrant would be negligible. Second, the owner or 

operator of commercial premises in a ―closely regulated‖

industry has a reduced expectation of privacy.
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Warrantless searches of closely regulated industries must 

still be reasonable and may not be used as a pretext for 

gathering criminal evidence. 

F. Security Checkpoints at Sensitive Government 

Facilities and Airports

Security screening at airports and sensitive government 

facilities generally consists of using magnetometers, explosives 

detectors, and x-ray machines to examine individuals and their 

containers. It is clear that the use of both magnetometers and 

x-ray machines to scan individuals and their belongings

constitutes a search implicating the Fourth Amendment. It is 

equally clear that a search conducted without a warrant is 

presumed to be unreasonable unless it falls within one of the 

recognized exceptions to the warrant requirement. 

1. Searches at Security Checkpoints

Searches conducted at designated security checkpoints in 

airports and sensitive government facilities fall within the class 

of warrantless searches that are conducted as part of a general 

regulatory scheme in furtherance of an administrative purpose, 

rather than as part of a criminal investigation to secure 

evidence of crime. The government has a substantial interest in 

protecting airline passengers, government employees, and 

government property; thus, searches of those who present 

themselves for entry into a controlled area are reasonable when 

carried out in accordance with the regulatory scheme. 

2. Searches Prior to Security Checkpoints - Terry

Stops

Different standards apply to searches conducted at 

airport security checkpoints as opposed to those conducted in 

other areas of the airport. Persons within the generally 

accessible airport area typically may only be stopped and 

searched based upon the principles of Terry, tested under a 

case-by-case application of the reasonableness standard. A
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more relaxed standard applies to those who actually try to 

board an aircraft. Those who actually present themselves for 

boarding on an air carrier will undergo a suspicionless 

administrative search. The same standard applies to security 

checkpoints at controlled government facilities. Persons may be 

inspected pursuant to the regulatory scheme when they attempt 

to enter the facility, but not before.

3. The Point of No Return

Individuals wishing to fly on an airplane or enter a 

controlled government facility are required to participate in the 

administrative screening process. Those not willing to undergo 

security screening have the option of choosing not to enter the 

security checkpoint. In fact, screening searches are valid only if 

they recognize the right of a person to avoid a search by electing 

not to enter the secured area. 

While an individual has the right to avoid a search by 

choosing not to enter a controlled area, that right is not without 

limits. Someone who begins the security screening process no 

longer has the right to avoid a search by electing to leave. A 

rule allowing a passenger to leave without a search after an 

inconclusive x-ray scan would encourage terrorism by providing 

a secure exit whenever detection was likely. Also, government 

security personnel have a duty to ferret out firearms, explosive 

devices, and other dangerous items carried by those who 

attempt to enter controlled areas. This duty could not be 

fulfilled if the agent was prohibited from conducting a visual 

inspection and limited hand search after an inconclusive x-ray 

scan. Thus, one who chooses to avoid a search must elect to 

leave before passing through a magnetometer or placing 

belongings on the x-ray machine‘s conveyor belt.

G. Border Searches

Border protection is a core task of the nations whose 

geographic limits are defined by them. The government has a 

very strong interest in repelling invasion, intercepting 

dangerous persons and contraband, collecting duties, and
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preventing the entry of diseases. Courts generally find that this 

compelling government interest greatly outweighs an 

individual‘s reduced expectation of privacy when crossing a

border. Government intrusions at the border are likely to be 

deemed reasonable in a broad variety of circumstances. 

Because of the breadth of border search authority, the power to 

conduct border searches is restricted to certain categories of 

federal law enforcement officers.

Federal courts have focused on two factors in analyzing 

the reasonableness of such intrusions: (1) the category of the 

intrusion, and (2) the geographic limits of the government‘s 

border authority.

1. Categories of Intrusions

Border intrusions are categorized into two types: routine 

and non-routine. The reasonableness standard of the search 

depends upon the category of the search. Those standards 

apply regardless of the direction of travel. In other words, 

searches of travelers leaving the nation are subject to the same 

standards that apply to searches of arriving travelers.

(a) Routine border search

i. scope

The scope of a routine border search is determined, at 

least in part, by the traveler‘s own reduced expectation of 

privacy when crossing a border. Travelers arriving at a border 

checkpoint expect to: (1) be briefly detained; (2) have their 

vehicles and luggage opened and visually searched; and (3) be 

asked to remove their topcoats and empty their pockets. 

Although the following required actions are slightly more 

intrusive, they are still within the scope of a routine border 

search: (1) remove shoes; (2) empty the contents of wallets or 

purses; and (3) lift shirts or skirts.

ii. basis

You may conduct a border search even when you have no 
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suspicion that the traveler is violating the law. Your agency 

policies may set some restrictions on you to conduct such 

searches and choose which travelers to search. Violating those 

restrictions may expose you to disciplinary action, but will not 

usually result in suppression of any evidence found.

(b) Non-routine border search

i. scope

The scope of a non-routine border search is also 

determined at least in part, by the traveler‘s own expectations. 

Some inspections are a customary part of crossing an 

international border. Others are very intrusive and therefore 

non-routine. A full strip search, an X-ray examination of the 

body, a demand to remove an artificial leg and a body cavity 

search are examples of non-routine border searches. Certain 

detailed searches of vehicles and other belongings may also be 

non-routine. Detailed disassembly and partial destruction of 

personal effects and drilling holes in car bodies are non-routine 

border searches. Finally, lengthy detentions of persons – those 

lasting hours rather than minutes -- often are considered nonroutine seizures of the individual.

ii. basis

At a minimum, you must have reasonable suspicion of a 

violation for non-routine border searches and seizures. Some 

courts have required more. In one case, a court order founded 

on reasonable suspicion was required before a person could be 

involuntarily x-rayed. In another case a court order founded on 

reasonable suspicion was required to be obtained within 48 

hours before a suspected drug-containing balloon swallower 

could be detained any longer. Body cavity searches can only be 

conducted by medical personnel, and a court has defined the 

reasonable suspicion needed to justify such a search as 

requiring a ―clear indication‖ or a ―plain suggestion‖ that the 

cavity was being used to conceal contraband. Sealed letters 

which apparently contain only correspondence cannot be 

opened without consent or a search warrant.
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2. Geographic limits of the border

Border search authority can be lawfully asserted only 

when there is some connection, or ―nexus,‖ to the border. 

Border searches can lawfully be conducted in three areas: (a) 

the actual border; (b) the functional equivalent of the border; 

and (c) the extended border. Persons and objects do not have to 

be intercepted within inches of the border, and border stations 

do not have to directly abut the border. But mere entry of a 

person or object into the United States does not mean that that 

authority to conduct a border search persists no matter where

and when that person or object is discovered by law 

enforcement.

(a) The actual border

A border search can be conducted at the actual land 

border between the United States and Canada or Mexico. 

Determining the nation‘s sea borders over water is more 

complex. The air border extends above the surface from the 

nation‘s land and sea borders.

(b) The functional equivalent of the border

Stopping vessels on the ocean, or aircraft in midair, is 

difficult if not impossible. It is more practical to wait until the 

ship has docked or the aircraft has landed. Sometimes seaports 

and airports receiving international shipments and passengers 

are many miles inland from the nation‘s actual borders. For 

example, ships departing Singapore may first dock in 

Philadelphia (well inland on the Delaware River), and flights 

leaving Paris may first touch American soil in Kansas City. In 

such situations, the Philadelphia dock and the Kansas City 

airport are considered the functional equivalent of the border. 

If the following requirements are met, you may lawfully conduct 

border searches at these functional equivalents of the border.

i. Persons and objects entering the country

You may stop and search persons and objects entering 
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the United States if the following conditions exist:

You are reasonably certain that a nexus exists 

between the person or object and either a bordercrossing by them or contact by them with 

something that has itself crossed the border;

You are reasonably certain that no material change 

has occurred to the object or person since this 

nexus has formed;

and

You stop and/or search at the first practical 

detention point after the nexus has formed.

ii. Persons and objects leaving the country

You may stop and search persons and objects leaving the 

United States if the following conditions exist:

You are reasonably certain that a nexus will arise 

between the person or object and either a bordercrossing by them or contact by them with 

something that will itself cross the border;

You are reasonably certain that no material change 

will occur to the object or person before this nexus 

has formed;

and

You stop and/or search at the last practical 

detention point before the nexus has formed.

iii. Other applications of the functional

equivalent of the border concept

This concept has been held to apply to searches and 

seizures at places other than international airports and 
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seaports. For example, imported items may be stored 

temporarily in a bonded warehouse before legally entering the 

United States. Searches of persons exiting those facilities have 

been upheld as border searches when the requirements 

pertinent to the functional equivalent of the border have been 

met. Other situations in which the concept has been held to 

apply include those involving foreign mail, persons who have 

access to bonded shipments, and, in very limited 

circumstances, foreign merchandise held in a Foreign Trade 

Zone for purposes other than those listed in the Foreign Trade 

Zone Act of 1934.

(c) The extended border

Even if the border or its functional equivalent has been 

crossed some time before, certain federal officers can conduct a 

border search if they can articulate reasonable suspicion that 

criminal activity is afoot. You cannot assert extended border 

search authority unless:

You are reasonably certain that a nexus exists 

between the person or object and either a bordercrossing by them or contact by them with 

something that has itself crossed the border;

You are reasonably certain that no material change 

has occurred to the object or person since this 

nexus has formed;

and

You have reasonable suspicion that criminal 

activity will be uncovered by the stop or search.

Extended border search authority is sometimes relied 

upon when agents follow smugglers from the border to their incountry rendezvous point, to catch other members of the 

smuggling conspiracy waiting there.
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NOTES
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415

Chapter Ten

Government Workplace Searches1

I. INTRODUCTION.................................................................415

II. DEFINING THE “WORKPLACE”.............................................416

III. IS IT A “SEARCH” UNDER THE FOURTH AMENDMENT? ............417

A. Does REP Exist? ............................................................... 417

1. Prior Notice to the Employee ........................................ 419

2. Common Practices and Procedures .............................. 420

3. Openness and Accessibility.......................................... 421

4. The Position of the Employee ....................................... 422

5. Waiver of Rights........................................................... 423

IV. WAS THE SEARCH REASONABLE? ........................................424

A. Searches for Work-Related Purposes................................. 425

1. Non-investigatory purpose ........................................... 425

2. Work-related misconduct investigations....................... 425

3. ―Reasonable‖ intrusions............................................... 359

B. Searches for Evidence of Criminal Violations .................... 427

C. ―Dual-Purpose‖ Searches .................................................. 428

*****

I. Introduction

There are a variety of reasons why a government 

supervisor might look in a government employee‘s workplace. A

supervisor might wish to locate a needed file or document, to 

discover whether the employee is misusing government 

property, such as a government-owned computer, or to look for 

evidence of a crime, such as using the internet to download 

child pornography.

 

1

―Warrantless Workplace Searches of Government Employees‖ complete with 

case cites is available on the Legal Division website (www.fletc.gov/legal) at 

Downloads, Articles, and FAQs / Articles / Research by Subject / Fourth 

Amendment.
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416

Is it a ―search‖ under the Fourth Amendment when a 

government supervisor looks in an employee‘s workplace? Does 

the government employee have a reasonable expectation of 

privacy (REP) in the office, desk, computer, and/or filing 

cabinet? If REP exists, what standards must a supervisor 

follow to lawfully conduct a warrantless search of those areas? 

Is probable cause required, or is a search permitted on some 

lesser standard of suspicion? While the Supreme Court 

addressed some of these questions in O‘Connor v. Ortega2, it 

has fallen to lower courts to address many others.

As a government supervisor, when considering the search 

of a government employee‘s workplace, use this two-part 

analysis to simplify the process. First, determine whether the 

employee has REP in the area or item to be searched. Second, 

if REP does exist, then determine if a search would be

reasonable under the totality of the circumstances. Before 

turning to those issues, however, it is necessary to first define 

exactly what is meant by the term ―workplace.‖

II. Defining the “Workplace”

―Workplace‖ as defined in O‘Connor includes those areas 

and items that are related to work and are generally within the 

employer‘s control, including offices, desks, filing cabinets, 

computers, and government vehicles. However, not everything 

found within the business address can be considered part of the 

workplace. As a general rule, a government employee has REP

in personal belongings, such as closed personal luggage, a 

handbag, or a briefcase, even when in the ―workplace.‖ A

public employee‘s private property may be considered a part of 

the workplace when the employee is using the personally-owned 

property as part of the workplace. 

In the Seventh Circuit Court of Appeals case of 

Gossmeyer v. McDonald, Gossmeyer was employed by the 

Illinois Department of Children and Family Services (DCFS) as a 

Child Protective Investigator. Her position required her to 

 

2 This case is briefed in the companion book, Legal Division Reference Book.
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Government Workplace Searches

417

investigate instances of child neglect, abuse, and sexual abuse 

and to photograph evidence for use in court proceedings. 

Because of a lack of storage space, Gossmeyer, at her own 

expense, purchased two storage cabinets in which she kept 

photographs, photographic equipment, files, documents, and 

other various items. In response to a tip that Gossmeyer had 

pornographic pictures in these cabinets, IG agents conducted a 

warrantless search of Gossmeyer‘s office, storage cabinets, and 

desk. Gossmeyer asserted that the storage cabinets she had 

personally bought were not part of the ―workplace.‖ The court 

refused to find an expectation of privacy in the cabinets simply 

because Gossmeyer bought them herself. As noted by the 

court: ―The cabinets were not personal containers which just 

happened to be in the workplace; they were containers 

purchased by Gossmeyer primarily for the storage of workrelated materials. ... These items were part of the  ̳workplace,‘

not part of Gossmeyer‘s personal domain.‖

 

III. Is It a “Search” Under the Fourth Amendment?

Under the Fourth Amendment, a ―search‖ occurs when 

the ―government‖ intrudes upon an individual‘s REP. Two 

concepts about this definition are important in the government 

workplace search context. First, the term ―government‖ does 

not solely refer to law enforcement. Instead, the Fourth 

Amendment acts as a restraint on the entire government. The 

Supreme Court has never limited the Fourth Amendment‘s 

prohibition on unreasonable searches and seizures to 

operations conducted by law enforcement. If an employee has a 

reasonable expectation of privacy in his workplace, then an 

intrusion into that area qualifies as a ―search‖ even when the 

government acts simply as employer. Second, ―motive‖ is not a 

component of the definition of ―search.‖ An intrusion into a 

workplace REP is a ―search‖ even when it is not a quest for 

criminal evidence.

A. Does REP Exist?

As with all Fourth Amendment analysis, the first step is 

to determine whether the government employee has REP in that 
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418

area or item. REP exists when (1) an individual exhibits an 

actual expectation of privacy, and (2) that expectation is one 

that society is prepared to recognize as being reasonable. Katz 

v. United States3. This analysis must be specific to the area or 

item to be searched. REP may exist in a desk drawer, a file 

cabinet, or a computer even though there is no REP in the office 

itself. If there is no REP, a workplace intrusion is not controlled 

by the Fourth Amendment, regardless of its nature and scope.

Government employees can, and often do, establish REP

in all or part of their government offices, desks, computers, and 

filing cabinets. A cursory glance into any government office will 

show that individual government employees typically expect 

some form of privacy, based on the intermingling of their 

personal and professional lives (e.g., pictures of kids on desks 

and diplomas on walls). To promote efficiency, many 

government agencies allow, if not encourage, individuals to 

perform some personal business, such as using a government 

telephone to make a personal phone call during a lunch hour,

while in a governmental workplace. Nonetheless, an 

expectation of privacy in a government workplace is different 

from, and indeed less than, a similar expectation in an 

individual‘s home. A government employee‘s REP is limited by 

the operational realities of the workplace. Whether an employee 

has REP must be addressed on a case-by-case basis. 

REP does not turn on the nature of the property interest 

in the searched area or item but on the reasonableness of the 

employee‘s privacy expectation. Government ownership of the

property to be searched (e.g., a government-owned computer 

assigned to a government employee) is an important 

consideration; but, it does not, standing alone, mean that there 

is no REP. Courts consider a variety of factors when 

determining whether a government employee has REP in the 

workplace. Among the most important are the following:

 

3 This case is briefed in the companion book, Legal Division Reference Book.
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419

1. Prior Notice To The Employee (Legitimate 

Regulation) 

Prior notice, such as signs, personnel policies, and 

computer banners, advising government employees that their 

employer has retained rights to access or inspection, can 

eliminate REP in the workplace. Conversely, the absence of 

such notice is a factor supporting REP. In the Fourth Circuit 

Court of Appeals case of United States v. Simons, Simons 

worked for the Foreign Bureau of Information Services (FBIS), a 

division of the Central Intelligence Agency. FBIS had an 

Internet usage policy that (1) specifically prohibited accessing 

unlawful material, (2) prohibited use of the Internet for anything 

other than official business, and (3) noted that FBIS would 

―periodically audit, inspect, and/or monitor the user‘s Internet 

access as deemed appropriate.‖ When a keyword search 

indicated that Simons had been visiting numerous illicit web 

sites from his government computer, multiple searches of his 

hard drive were conducted from a remote location, resulting in 

the discovery of child pornography. The court held that in light 

of the FBIS Internet policy Simons did not have a legitimate 

expectation of privacy in the record or fruits of his Internet use. 

Through its language, this policy placed employees on notice 

that they could not reasonably expect that their Internet activity 

would be private.

In the Seventh Circuit Court of Appeals case of Muick v. 

Glenayre Electronics, the court noted that it was possible to 

have REP in employer-owned equipment furnished to an 

employee for use in the workplace. For example, if the employer 

equips the employee‘s office with a safe or file cabinet or other 

receptacle in which to keep his private papers, he can assume 

that the contents of the safe are private. In this case, Muick 

was employed by Glenayre at the time of his arrest for receiving 

and possessing child pornography on the laptop computer 

furnished to him by Glenayre. Glenayre had announced that it 

could inspect the laptops that it furnished for the use of its 

employees. This destroyed any REP that Muick might have had. 

As stated by the court:
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The laptops were Glenayre‘s property and it could 

attach whatever conditions to their use it wanted. 

They didn‘t have to be reasonable conditions; but 

the abuse of access to workplace computers is so 

common (workers being prone to use them as 

media of gossip, titillation, and other entertainment 

and distraction) that reserving a right of inspection 

is so far from being unreasonable that the failure to 

do so might well be thought irresponsible.

Likewise, a departmental policy which provides, in part, 

that ―all departmental vehicles (to include all enclosed 

containers) shall be subject to search and inspection ...at 

anytime, day or night‖ can defeat a claim of REP in a 

government vehicle. 

2. Common Practices and Procedures

Even in the absence of written policies and procedures, 

actual office practices and procedures may eliminate REP in the 

workplace. An employer who actually conducts searches or 

inspections dispels in advance any expectations of privacy. 

Conversely, even when written policies and procedures exist,

failure to implement them may permit a government employee 

to establish REP in an area where one would otherwise not 

exist. For example, in the Third Circuit Court of Appeals case of 

United States v. Speights, Speights was a police officer who 

retained a locker at his police headquarters, secured by both a 

personal lock and a lock that had been issued by the 

department. There were no regulations that addressed the 

issue of personal locks on the police lockers, nor was there any 

regulation or notice that the lockers could be searched. There 

was also no regulation as to what a police officer might keep in 

the locker. Upon receiving information that Speights had a 

sawed-off shotgun in his locker, supervisors opened the locker 

with a master key (for the police-issued lock) and bolt cutters 

(for Speights‘ personal lock). They recovered a sawed-off 

shotgun during the search, and Speights was later convicted of 

illegally possessing the weapon. The court held that in the 

absence of regulations Speights had REP in the locker that 
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could be defeated only if the police department had a practice of 

opening lockers with private locks without the consent of the 

user. While there had been scattered instances of inspections 

of the lockers for cleanliness (3-4 in 12 years), there was 

insufficient evidence to conclude that the police department 

practice negated Speights‘ REP.

Other federal courts in analogous cases have reached 

parallel conclusions. The search of a locker maintained by an 

employee of the United States Mint was upheld because, among 

other things, the locker was ―regularly inspected by the Mint 

security guards for sanitation purposes.‖ No reasonable 

expectation of privacy could be expected in an office or credenza 

due to ―extremely tight security procedures,‖ to include frequent 

scheduled and random searches by security guards. In both of 

these cases, the courts relied on specific regulations and 

practices in finding that an expectation of privacy was not 

reasonable. 

3. Openness and Accessibility

There is no REP in areas that are, by their very nature, 

―open‖ and ―public.‖ REP may exist in a private space (such as 

a desk) within an otherwise public space (such as a government 

building). REP in an item or area is more likely to exist when 

that item or area is given over to an employee‘s exclusive use. 

Locking office doors and the use of passwords to restrict an 

employer‘s access to computer files is evidence of the employee‘s 

subjective expectation of privacy.

The more accessible the item or area is to others, the less 

likely that REP exists. Offices that are continually entered by 

fellow employees and other visitors during the workday for 

conferences, consultations, and other work-related visits may 

be so open to fellow employees or the public that no expectation 

of privacy is reasonable. Nevertheless, the fact that others may 

be permitted access to an employee‘s office, desk, computer, or 

filing cabinet does not alone automatically destroy REP. Privacy 

does not require solitude. The existence of a master key or an 

employee‘s failure to consistently shut and lock an office door 
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does not automatically sacrifice any expectation of privacy in 

that area.

The Second Circuit Court of Appeals case of Leventhal v. 

Knapek illustrates how the realities of the workplace can result 

in a finding that REP does exist. Leventhal had a private tax 

preparation business. In running the business, he violated 

agency policy by impermissibly loading unauthorized software 

on his government computer. He committed a second violation 

when he improperly used agency computer equipment to print 

private tax returns. A warrantless search of his computer in 

response to an anonymous tip uncovered the unauthorized 

software. After disciplinary actions were completed, Leventhal 

filed suit alleging the warrantless search of his computer was a 

violation of the Fourth Amendment. In finding that he had REP

in the computer, the court noted:

Leventhal occupied a private office with a door. He 

had exclusive use of the desk, filing cabinet, and 

computer in his office. Leventhal did not share use 

of his computer with other employees in the 

Accounting Bureau nor was there evidence that 

visitors or the public had access to his computer.

While support personnel may have had access to 

Leventhal‘s computer at all times, ―there was no evidence that 

these searches were frequent, widespread, or extensive enough 

to constitute an atmosphere so open to fellow employees or the 

public that no expectation of privacy is reasonable.‖

4. The Position of the Employee

REP is less likely for jobs with high security 

requirements. REP is less likely in industries that are subjected 

to pervasive regulation to ensure the safety and fitness of its 

employees. REP is less likely in certain forms of public 

employment even with respect to personal searches. Employees 

of the United States Mint, for example, should expect to be 

subject to certain routine personal searches when they leave the 

workplace every day. Law enforcement is in this special 
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category. The government has the power to regulate the 

conduct of its police officers even when the conduct involves the 

exercise of a constitutionally protected right. While law 

enforcement officers do not lose their Constitutional rights, 

there is a substantial public interest in ensuring the 

appearance and actuality of police integrity. This interest in 

police integrity may justify some intrusions on the privacy of 

police officers which the Fourth Amendment would not 

otherwise tolerate. 

5. Waiver of Rights / Consent

Government employees may actually waive their 

expectation of privacy as a precondition of receiving a certain 

benefit from their employer such as lockers, government 

vehicles, or computers. Employees are often required to sign 

forms acknowledging inspection and search policies, waiving 

any objections, and consenting to those policies. In the Sixth 

Circuit Court of Appeals case of American Postal Workers Union 

v. United States Postal Service, postal employees were eligible to 

receive personal lockers at their postal facility. Before being 

allowed to do so, however, each employee had to sign a waiver 

that noted the locker was ―subject to inspection at any time by 

authorized personnel.‖ The administrative manual of the Postal 

Services noted that all property provided by the Postal Service 

was ―at all times subject to examination and inspection by duly 

authorized postal officials in the discharge of their official 

duties.‖ Finally, the collective bargaining agreement for these 

employees ―provided for random inspection of lockers under 

specified circumstances.‖ In light of the clearly expressed 

provisions permitting random and unannounced locker 

inspections under the conditions described above, there was no 

REP in the lockers.

REP exists in the workplace when the employee has a 

subjective expectation of privacy that is reasonable, based on 

the totality of the circumstances (especially those discussed 

above).
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IV. If REP Does Exist, Is an Intrusion Reasonable?

Even though there is a strong preference that searches be 

performed pursuant to warrants, courts have recognized that in 

certain special situations the requirement to obtain a warrant is 

impractical. Such is the case with public employers who find 

themselves in a somewhat unique position. On the one hand is 

the obligation to follow the mandates of the Fourth Amendment; 

on the other is the responsibility for ensuring the efficient and 

proper operation of the department or agency. In cases 

involving searches conducted by a government supervisor, 

courts balance the invasion of the employees‘ REP against the 

government‘s need for supervision, control, and the efficient 

operation of the workplace. As noted by the Supreme Court in 

O‘Connor:

Employers and supervisors are focused primarily 

on the need to complete the government agency‘s 

work in a prompt and efficient manner. An 

employer may have need for correspondence, or a 

file or report available only in an employee‘s office 

while the employee is away from the office. Or ... 

employers may need to safeguard or identify state 

property or records in an office in connection with a 

pending investigation into suspected employee 

misfeasance. In our view, requiring an employer to 

obtain a warrant whenever the employer wished to 

enter an employee‘s office, desk, or file cabinets for 

a work-related purpose would seriously disrupt the 

routine conduct of business and would be unduly 

burdensome. Imposing unwieldy warrant 

procedures in such cases upon supervisors, who 

would otherwise have no reason to be familiar with 

such procedures, is simply unreasonable.

For public employers, there is an exception to the 

probable cause and warrant requirements. In O‘Connor, the 

Supreme Court outlined two basic categories of workplace 

searches: (1) searches for work-related purposes (either noninvestigatory or for the purpose of investigating workplace 
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misconduct), and (2) searches for evidence of criminal 

violations. Special needs, beyond the normal need for law 

enforcement, make the probable cause requirement 

impracticable for legitimate work-related, non-investigatory 

intrusions as well as for investigations of work-related 

misconduct. Even though not a component of the definition of 

―search,‖ motive is an essential factor in determining the 

reasonableness of a government workplace intrusion.

A. Searches for Work-Related Purposes

For the probable cause and warrant exception to apply, 

the search must be work-related. This element limits the 

exception to circumstances in which government supervisors

who conduct the search act in their capacity as employers, 

rather than law enforcers. Work-related intrusions by public 

employers are justified by the need for the efficient and proper 

operation of the workplace. Work-related searches typically fall 

within one of two similar, but distinct, circumstances. 

1. Non-investigatory purpose

A warrantless search of a government employee‘s 

workplace may be conducted for a work-related, noninvestigatory purpose, such as retrieving a needed file. 

Operational efficiency would suffer if employers were required to 

have probable cause before they entered an employee‘s desk for 

the purpose of finding a file, a piece of office correspondence, a 

book, or a floppy disk. For this reason, public employers must 

be given wide latitude to enter employee offices for work-related, 

non-investigatory reasons.

2. Work-related misconduct investigations

A warrantless search of an employee‘s workspace may be 

performed during an investigation into allegations of workrelated misconduct, such as improper computer usage. As 

noted by the Supreme Court in O‘Connor:

Public employers have an interest in ensuring that 

their agencies operate in an effective and efficient
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manner, and the work of these agencies inevitably 

suffers from the inefficiency, incompetence, 

mismanagement, or other work-related misfeasance 

of its employees. Indeed, in many cases, public 

employees are entrusted with tremendous 

responsibility, and the consequences of their 

misconduct or incompetence to both the agency 

and the public interest can be severe. ... In our 

view, therefore, a probable cause requirement for 

searches of the type at issue here would impose 

intolerable burdens on public employers. The delay 

in correcting the employee misconduct caused by 

the need for probable cause rather than reasonable 

suspicion will be translated into tangible and often 

irreparable damage to the agency‘s work, and 

ultimately to the public interest.

3. “Reasonable” intrusions

In either of the above situations, the search must be 

―reasonable‖ based on the totality of the circumstances. 

Generally, a government supervisor‘s search of an employee‘s

REP is reasonable when the measures used are reasonably 

related to the objectives of the search and not excessively 

intrusive in light of its purpose. Under this standard, the 

search must meet two requirements: the search must be (1) 

justified at its inception, and (2) permissible in scope. This is 

the equivalent of the ―reasonable suspicion‖ standard outlined 

by the Supreme Court in Terry v. Ohio4.

(a) Justified at the Inception

A warrantless search of an employee‘s REP for a noninvestigatory, work-related purpose, such as to retrieve a 

needed file, will be ―justified at its inception‖ when the 

supervisor reasonably believes that the sought object is located 

there. A search of a government employee‘s REP for evidence of 

work-related misconduct will be ―justified at its inception‖ when 

 

4 This case is briefed in the companion book, Legal Division Reference Book.
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there are reasonable grounds for suspecting that the search will 

turn up evidence of such misconduct. A supervisor must have 

an articulable reason (or reasons) for believing that work-related

materials or evidence of work-related misconduct are located in 

the place to be searched.

(b) Permissible In Scope

A search is ―permissible in scope‖ when the measures 

used are reasonably related to the objectives of the search and 

not excessively intrusive in light of the nature of the 

misconduct. This means that the search is limited to only those 

areas where the item sought is reasonably expected to be 

located. For example, it is reasonable to look in a desk drawer 

for a highlighter. It is not ―permissible in scope‖ to boot up the 

computer when looking for a highlighter.

(c) Plain View Seizures

The plain view doctrine allows seizure of evidence 

discovered while lawfully inside an REP area. There are three 

requirements for a permissible plain view seizure of evidence. 

First, you must lawfully be in a position to observe the item; 

second, the incriminating nature of the item must be 

immediately apparent; and third, you must have a lawful right 

of access to the object itself.

Criminal evidence discovered during a government 

workplace search for a work-related purpose will be admissible 

as a plain view seizure so long as the search meets the criteria 

discussed above.

B. Searches for Evidence of Criminal Violations

Although in O‘Connor the Supreme Court specifically 

declined to, several lower courts have address the appropriate 

standard for searches when an employee is being investigated 

for criminal misconduct that does not violate some workforce 

policy. They have found that the rationale for the lesser burden 

O‘Connor places on public employers is not applicable in a 
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purely criminal investigation. Where the sole motivation behind 

a workplace search is to uncover evidence of criminal 

wrongdoing, the appropriate standard is probable cause.

The line between a work-related search and a search for 

criminal evidence may be clear in theory, but is often blurry in 

fact. This is especially true when the personnel conducting the 

search are members of an agency or department that is 

undeniably in the business of investigating the violation of the 

criminal laws. The mere involvement of law enforcement 

personnel will not automatically convert a work-related search 

into a criminal investigation. An agent‘s dual role as an 

investigator of workplace misfeasance and criminal activity does 

not invalidate the otherwise legitimate work-related workplace 

search. On the other hand, when a supervisor‘s role is no 

longer that of a manager of an office but that of a criminal 

investigator for the government and when the purpose is no 

longer to preserve efficiency in the office but to prepare a 

criminal prosecution against the employee, searches and 

seizures by the supervisor or by other government agents are 

governed by the Fourth Amendment admonition that a warrant 

be obtained in the absence of exigent circumstances. In 

determining whether the investigation is criminal in nature, the 

proper focus is not on the positions or capabilities of the 

persons conducting the search, but rather on the reason for the 

search itself. Factors considered by courts in making this 

determination include whether a criminal investigation has 

been opened, whether a workforce policy was violated, and the 

position of the individual who conducted the search.

C. ―Dual-Purpose‖ Searches

There are situations in which a government employee‘s 

misconduct might also be criminal. For example, a government 

employee may be receiving and downloading child pornography 

on a government computer. This conduct could (and most 

likely does) constitute a violation of workforce policy rules on 

appropriate government computer/Internet usage, and it is 

clearly criminal in nature. In such a situation, a public 

employer has two purposes in conducting a search: (1) to 
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uncover evidence of the administrative violation, and (2) to 

uncover potential criminal evidence.

When a government supervisor receives information that 

an activity is occurring that violates both workforce regulations 

and criminal statutes, what standard must be followed when 

searching the employee‘s workplace? Because of the workrelated misconduct that is occurring, will the lesser standard of 

O‘Connor suffice? Or, because of the criminal nature of the 

allegations, must the traditional probable cause and warrant 

requirements be met? The courts have adopted fairly generous 

interpretations of O‘Connor when confronted with mixed-motive 

searches.

Even assuming that the dominant purpose of the 

warrantless search is to acquire evidence of criminal activity,

the search remains within the O‘Connor exception to the 

probable cause and warrant requirement. The government does

not lose the capacity and interests of an employer - its special 

need for the efficient and proper operation of the workplace -

merely because the evidence obtained is also evidence of a 

crime.
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NOTES
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Chapter Eleven

Officer Liability

I. INTRODUCTION.................................................................432

A. Civil Rights ....................................................................... 432

B. Civil Liability..................................................................... 433

1. Definition of a Tort....................................................... 433

2. Torts Versus Crimes .................................................... 433

II. CRIMINAL REMEDIES.........................................................434

A. Title 18 U.S.C. § 241, Conspiracy Against Rights .............. 434

1. Elements of Crime One ................................................ 435

2. Elements of Crime Two ................................................ 435

B. Title 18 U.S.C. § 242, Deprivation Under Color of Law ...... 436

1. Elements ..................................................................... 437

2. ―Under Color of Law‖.................................................... 437

3. ―Specific Intent (Willfully)‖............................................ 438

III. CIVIL REMEDIES - CONSTITUTIONAL TORTS...........................438

A. 42 U.S.C. § 1983 (Deprivation of Rights) ........................... 439

B. Bivens v. Six Unknown Named Agents of the Federal Bureau 

of Narcotics....................................................................... 440

IV. COMMON INCIDENTS AND IMMUNITY ....................................441

A. Arrests and Searches Without Probable Cause.................. 441

B. False or Misleading PC Affidavit ........................................ 442

C. Excessive Force Claims ..................................................... 443

D. Failure to Intervene When Excessive Force is Used ........... 444

E. Immunity For Constitutional Violations ............................ 445

1. Sovereign Immunity..................................................... 445

2. Absolute Immunity ...................................................... 445

3. Qualified Immunity...................................................... 446

V. CIVIL LIABILITY FOR TORTS ...............................................447

A. Negligent Torts.................................................................. 447

1. Duty ............................................................................ 448

2. Breach of Duty............................................................. 449

3. Causation .................................................................... 450

4. Damages...................................................................... 450

B. Intentional Torts ............................................................... 451

1. To the Person............................................................... 451

2. To Property .................................................................. 452
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VI. THE FEDERAL TORT CLAIMS ACT (FTCA).............................452

A. Negligent Torts.................................................................. 452

B. Intentional Torts ............................................................... 453

C. Scope of Employment........................................................ 453

1. The Federal Good Samaritan Act ................................. 454

2. Government Vehicles ................................................... 455

3. Certification of Within the Scope of Employment ......... 456

D. Initiating a Civil Lawsuit under the FTCA.......................... 456

E. Defenses ........................................................................... 457

1. To Negligent Torts ........................................................ 457

2. To Intentional Torts ..................................................... 457

*****

I. Introduction

Law enforcement work is dangerous. Contact with the 

public is constant, often confrontational and charged with 

emotion. Within this context, you are responsible for preventing 

and investigating crimes that may include violations of ―civil 

rights.‖ Further, the Constitution and Federal laws protect 

against the unjustified infringement of those civil rights by law 

enforcement officers themselves.

You must perform your duties in accordance with the 

Constitution and Federal law. You may be both civilly and 

criminally liable for violations of civil rights if you discharge 

your duties unreasonably, recklessly, or indiscriminately, or 

exceed the scope of your employment and authority.

A. Civil Rights

―Civil rights‖ are guaranteed to individuals by the 

Constitution and protected by Federal law. Constitutionally 

enumerated civil rights include, but are not limited to, the First 

Amendment‘s freedom of speech, freedom of religion, and 

freedom of assembly; the Fourth Amendment‘s protection 

against unreasonable searches and seizures; the Fifth 

Amendment‘s right of due process and the protection against 

self incrimination; and the Eighth Amendment‘s protection 

against cruel and unusual punishment. Federal statutes add to 
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the list of civil rights, including rights established in the areas 

of education, employment, voting, and access to public facilities 

and accommodations.

B. Civil Liability

1. Definition of a Tort

The civil liability of a federal law enforcement officer is 

predominantly an issue of state tort law. Broadly speaking, a 

tort is a civil wrong, other than breach of contract, for which the 

court will provide a remedy in the form of an action for 

damages. The remedy can involve money damages or an 

injunction. An injunction is an order from a court that 

prohibits someone from doing something.

2. Torts Versus Crimes

Torts differ from crimes in many respects, primarily in the 

interests affected by each and in the remedies afforded by each. 

A crime is an offense against the public at large, for which the 

state, as the representative of the public, will bring proceedings 

in the form of a criminal prosecution. As such, a Federal 

criminal prosecution is captioned as ―United States v. 

Defendant.‖ A tort, on the other hand, is a civil action 

commenced and maintained by the injured person. A civil 

lawsuit is captioned as ―Plaintiff (the injured party) v. Defendant 

(the wrongdoer).‖

The intent of a criminal prosecution is to protect and 

vindicate the interests of the public as a whole by punishing 

offenders, removing them from society (incarceration), reforming 

them, and deterring others from committing similar acts. The 

penalty upon conviction of a crime is a fine, imprisonment, and 

sometimes death. Criminal law is not primarily concerned with 

compensating the victim, although restitution and victim 

assistance programs may accomplish this end. Tort actions are 

intended to compensate the victim for the damage suffered, at 

the expense of the wrongdoer. A defendant who loses a lawsuit 

may be required to pay money damages (usually the amount 
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that will compensate the victim, but, in certain cases, punitive

damages may be awarded). Torts are private matters that are 

not usually a concern of the government or the public (unless, 

of course, the government is a party).

Both criminal prosecutions and civil lawsuits require the 

proof of ―elements.‖ In a criminal prosecution, the government 

must present evidence that proves each and every element of 

each offense charged beyond a reasonable doubt. In a civil 

action, the plaintiff must prove each and every element of each 

tort alleged by a preponderance of the evidence.

Although there are significant differences between crimes 

and torts, the remedies are not mutually exclusive. The same 

act or conduct can be the subject of both criminal prosecution 

and civil suit.

II. Federal Criminal Remedies

Congress passed criminal statutes designed to punish 

those who violate the civil rights of others.

A. Title 18 U.S.C. § 2411, Conspiracy Against Rights

This statute allows the Federal Government to prosecute 

anyone, including Federal, state, and local law enforcement 

officers, who conspire to violate a person‘s civil rights. It reads, 

in pertinent part:

If two or more persons conspire to injure, oppress, 

threaten, or intimidate any person in any State, 

Territory, Commonwealth, Possession, or District in 

the free exercise or enjoyment of any right or 

privilege secured to him by the Constitution or laws 

of the United States, or because of his having so 

exercised the same; or 

 

1 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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If two or more persons go in disguise on the 

highway, or on the property of another, with intent 

to prevent or hinder his free exercise or enjoyment 

of any right or privilege so secured...

The statute provides penalties, including fines, 

imprisonment, and in certain instances, death.

There are two distinct crimes under this statute.

1. Elements of Crime One

The elements of the first crime are:

A conspiracy

To injure, oppress, threaten or intimidate

Any person

In the exercise or enjoyment of any Constitutional

or Federal civil right

The conspiracy under this statute is an agreement 

between two or more persons to injure, oppress, threaten, or 

intimidate any person in the exercise of a constitutional or 

federally guaranteed right. Section 241 differs from 18 U.S.C. § 

371, the general federal conspiracy statute, by not requiring an 

overt act; that is, an act in furtherance of the conspiracy. 

Under § 241, the agreement by two or more persons, coupled 

with the specific intent to violate a person‘s civil rights, is 

sufficient to establish the crime. ―Any person‖ should be taken 

literally and includes citizens, visitors, legal and even illegal 

aliens.

2. Elements of Crime Two

The elements of the second crime are:

Two or more persons go in disguise on the highway

or property of another
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436

To prevent or hinder

Any person

In the exercise or enjoyment of any Constitutional

or Federal civil right

The historical context of this law is apparent. It was 

specifically designed to deal with the activities of the Ku Klux 

Klan. The crime is a felony, punishable by up to death.

B. Title 18 U.S.C. § 2422, Deprivation of Rights Under 

Color of Law

This statute empowers the Federal Government to 

prosecute federal, state, and local law enforcement officers and 

other public officials who, under the mantel of their official 

authority (―color of law‖), intentionally violate the civil rights of 

prisoners, suspects, or other persons. It reads, in pertinent 

part:

Whoever, under color of any law, statute, 

ordinance, regulation, or custom, willfully subjects 

any person in any State, Territory, Commonwealth, 

Possession, or District to the deprivation of any 

rights, privileges, or immunities secured or 

protected by the Constitution or laws of the United 

States, or to different punishments, pains, or 

penalties, on account of such person being an

alien, or by reason of his color, or race, than are 

prescribed for the punishment of citizens, shall be 

....

The statute provides penalties including fines, 

imprisonment, and in certain instances, death.

 

2

 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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Officer Liability

437

1. Elements

The elements of this crime are:

An activity ―under color of law‖

With the specific intent (willfully)

To deprive any person

Of any Constitutional or Federal civil right

2. “Under Color of Law”

―Under color of law‖ necessarily involves actions on the 

part of a law enforcement officer or public official, but not 

everything done by a law enforcement officer is done ―under 

color of law.‖ If status as a law enforcement officer did not 

materially facilitate the wrong committed, the officer is deemed 

to have acted in a purely private capacity, and will not be 

criminally liable under this statute.

Certainly, when an officer does an act of a general law 

enforcement nature, such as make an arrest, conduct a search, 

etc., the officer will be considered to have acted ―under color of 

law.‖ Whether the officer was in uniform or ―on duty‖ are 

important, but not controlling factors in determining whether 

an officer was acting under color of law. Law enforcement 

officers can act ―under color of law‖ even while off duty and out 

of uniform.

―Under color of law‖ is a broader legal concept than 

―within the scope of employment.‖ Misuse of power, possessed 

by virtue of law and made possible only because the wrongdoer 

is clothed with the authority of law, is action taken ―under color 

of law.‖ Even if the law enforcement officer does not purport to 

have acted in the line of duty, and even if the conduct clearly 

violates the law or agency policy, it will still be treated as ―under 

color‖ of his authority if his status as a law enforcement officer 

materially facilitated the wrong. An officer may not remove, 

literally or figuratively, the badge or mantel of authority by 
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438

disavowing it, and thereby avoid prosecution under this statute.

Therefore, an officer can act outside the scope of employment 

and even contrary to law, policy and practice and still be 

determined to have acted ―under color of law.‖

Private persons can act ―under color of law‖ if they act in 

concert and jointly engage with law enforcement in the violation 

of civil rights.

3. “Specific Intent (Willfully)”

It is not enough that the officer intended to do the act 

that resulted in the deprivation of a constitutional or Federal 

civil right. To convict an officer of violating § 242, the 

government must prove the officer possessed specific intent to 

deprive a person of a civil right. There must be the specific 

intent to punish or prevent the exercise of a constitutionally 

guaranteed right.

―Willfully‖ implies not merely the conscious purpose to do 

wrong, but intent to deprive a person of a right which has been 

made specific either by the terms of the Constitution or Federal 

law, or by court decisions interpreting them. Requisite intent 

can be established by all attendant circumstances. 

III. Federal Civil Remedies - Constitutional Torts

In addition to criminal prosecution, tort actions against 

the Federal government and its employees and agents can 

generally be classified as constitutional torts (based on a 

violation of rights found in the United States Constitution) or as 

state law torts (principles of civil liability that exist under the 

laws of the states).

Constitutional tort claims may be asserted against a law 

enforcement officer under two separate, but related, basis.
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A. Title 42 U.S.C. § 19833 (Civil Action For Deprivation 

of Rights)

Title 42 U.S.C. § 1983 reads, in pertinent part:

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of 

the United States or other person within the 

jurisdiction thereof to the deprivation of any rights, 

privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or other 

proper proceeding for redress.

This statute provides a civil cause of action against state 

and local law enforcement officers who, acting under color of 

law, deprive an individual of any civil right. It is not a criminal 

statute, but a civil one that permits state and local law 

enforcement officers to be civilly sued in federal court for civil 

rights violations.

In order to establish a civil lawsuit claim under § 1983, 

the following elements must be proven by a preponderance of 

the evidence:

An act

Under color of law of a state, territory or the District 

of Columbia 

Depriving any person (a citizen or other person 

within United States jurisdiction) 

Of rights, privileges, or immunities secured by the 

Constitution or Federal laws

 

3

 This statute can be found in its entirety in the companion book, Legal 

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
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―Under color of law‖ is the same principle as discussed 

regarding § 242. However, by its express language, this statute 

applies only to state and local law enforcement and does not 

apply to Federal officers and agents.

No specific intent to violate a Constitutional or Federal 

civil right is required. The plaintiff must only prove intent to do 

the act which results in the deprivation of civil rights. It must 

be a volitional act and not accidental or the result of 

misadventure.

The result of an action under this statute may be 

judgment for actual (compensatory) damages, punitive 

damages, attorney‘s fees, and/or injunction.

B. Bivens v. Six Unknown Named Agents of the 

Federal Bureau of Narcotics

Until the 1971 Supreme Court decision in Bivens v. Six 

Unknown Named Agents of the Federal Bureau of Narcotics4, a 

person whose civil rights were violated by a federal officer or 

agent was unable to sue a federal agent in federal court. 42 

U.S.C. § 1983 was not available since by its language, it applied 

only to civil rights violations committed by state and local 

officials. 

In the Bivens case, Mr. Bivens alleged that agents from 

the Federal Bureau of Narcotics (now the Drug Enforcement 

Administration) arrested him and searched his apartment 

without a warrant and that his arrest was made without 

probable cause. Mr. Bivens filed a civil suit against the federal 

agents in federal court. Bivens argued that the federal agents 

violated his Fourth Amendment Constitutional right to be safe 

in his own home from unreasonable searches and seizures.

Eventually, Bivens reached the Supreme Court on the 

issue of whether federal agents may be sued in federal court for 

 

4 Cases named in this chapter without a case cite are briefed in the 

companion book, Legal Division Reference Book.
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violations of Constitutionally protected rights. The Supreme 

Court decided the alleged behavior, if true, constitutes a federal 

Constitutional wrong which should be determined by a federal 

court rather than a state court. The Supreme Court also stated 

that since there was no remedy in state law for wrong doing 

committed by federal agents, the Court should create such a 

remedy. Based upon the Bivens decision, federal agents are 

now subject to civil suits alleging intentional civil rights 

violations.

In Bivens, the Supreme Court in essence created an 

analogy to 42 U.S.C. § 1983 under which Federal officers and 

agents may be sued in civil court for violating a person‘s 

Constitutional rights. It is commonly called a ―Bivens Action.‖

The Supreme Court has limited Bivens actions to only certain 

Constitutional violations. Specifically, the Supreme Court has 

held that only violations of rights protected by the Fourth 

Amendment, Fifth Amendment (Due Process), or Eighth 

Amendment (Cruel and Unusual Punishment) can serve as the 

basis for a Bivens lawsuit to recover damages.

IV. Common Incidents of Civil Liability under Bivens and 

the Defense of Qualified Immunity

The following are the most common types of 

Constitutional torts alleged against federal officers under 

Bivens.

A. Unlawful Arrests and Searches Without Probable 

Cause

In Bivens, the Supreme Court held that federal law 

enforcement officers are civilly liable for violations of the Fourth 

Amendment. Thus, when a federal law enforcement officer 

makes an arrest without probable cause or unlawfully conducts 

a search, a Bivens suit can be filed against the officer.

In determining whether a Bivens suit for an unlawful 

warrantless arrest is proper, the courts must determine 

whether a reasonable officer could have believed the arrest to be 
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lawful, in light of clearly established law and the information 

the arresting officers possessed. Whether an arrest is 

constitutionally valid depends upon whether, at the moment the 

arrest was made, the officers had ―arguable‖ probable cause to 

make it - whether at that moment the facts and circumstances 

within their knowledge and of which they had reasonably 

trustworthy information were sufficient to warrant a reasonable, 

prudent, cautious officer in believing that the person arrested 

had committed or was committing an offense. Where ―arguable‖

probable cause exists, law enforcement officers who reasonably 

but mistakenly conclude that probable cause is present are 

entitled to qualified immunity.

The same standard applies in unlawful search cases. In 

search cases, it is likewise inevitable that law enforcement 

officials will in some cases reasonably but mistakenly conclude 

that probable cause is present. The relevant question is whether 

a reasonable officer could have believed the search to be lawful, 

in light of clearly established law and the information known by 

the searching officer. An officer‘s subjective beliefs about the 

search are irrelevant.

B. Knowingly Submitting a False or Misleading 

Affidavit For Search or Arrest Warrants

In Franks v. Delaware the Supreme Court held that a law 

enforcement officer violates the Fourth Amendment if, in order 

to obtain a search warrant, he perjures himself or testifies in 

reckless disregard of the truth. It is clearly established that the 

Fourth Amendment requires a truthful, factual showing 

sufficient to constitute probable cause. Specifically, the Court 

noted that:

Where the defendant makes a substantial 

preliminary showing that a false statement 

knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant 

in the warrant affidavit, and if the allegedly false 

statement is necessary to the finding of probable

cause, the Fourth Amendment requires that a 

hearing be held at the defendant‘s request.
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In the event that at that hearing the allegation of 

perjury or reckless disregard is established by the 

defendant by a preponderance of the evidence, and, 

with the affidavit‘s false material set to one side, the 

affidavit‘s remaining content is not sufficient to 

establish probable cause, the search warrant must 

be voided and the fruits of the search excluded to 

the same extent as if probable cause was lacking on 

the face of the affidavit.

A Franks violation can also occur when law enforcement 

officers obtain a warrant through the intentional or reckless 

omission of material facts.

Although the Franks standard was developed in the 

criminal context, it also defines the scope of qualified immunity 

in civil rights actions, including Bivens suits.

When the information in an affidavit is reasonably 

believed to be true or appropriately accepted as true by the law 

enforcement officer, a Bivens civil lawsuit may not be properly 

brought. However, an affidavit that contains information the 

officer knew to be false or would have known was false had the 

officer not recklessly disregarded the truth violates the Fourth 

Amendment. In such circumstances, a Bivens suit may be 

properly brought, because the law enforcement officer cannot be 

said to have acted in an objectively reasonable manner. 

Qualified immunity cannot be asserted.

C. Fourth Amendment Excessive Force Claims

In Graham v. Connor the Supreme Court established the 

proper framework for analyzing an individual‘s claim that a law 

enforcement officer used excessive force. The Supreme Court 

has long recognized that the right to make an arrest or 

investigatory stop necessarily carries with it the right to use 

some degree of physical coercion or threat thereof to affect it.

The issue in cases involving claims of excessive force is 

whether the arresting officer‘s actions were ―objectively 
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reasonable‖ in light of the facts and circumstances confronting 

the officer, without regard to the officer‘s underlying intent or 

motivation. This ―reasonableness‖ analysis must be judged 

from the perspective of a reasonable officer on the scene, and 

not with the 20/20 vision of hindsight.

D. Failure to Intervene When Excessive Force is Used

An individual has the right under the Fourth Amendment 

to be free from the excessive use of force by law enforcement 

officers. A law enforcement officer has an affirmative duty to 

intercede on the behalf of a person whose constitutional rights 

are being violated in his presence by other officers. Accordingly, 

a federal law enforcement officer may, in certain circumstances, 

be sued under Bivens for failing to intervene to protect a victim 

from another officer‘s unlawful use of excessive force. One who 

is given the badge of authority of a police officer may not ignore 

the duty imposed by his office and fail to stop other officers who 

summarily punish a third person in his presence or otherwise 

within his knowledge.

It is not necessary that an officer actually participate in 

the excessive use of force to be held liable. Rather, an officer 

who is present at the scene and who fails to take reasonable 

steps to protect the victim of another officer‘s use of excessive 

force can be held liable for his inaction. An officer who fails to 

intercede is liable for the preventable harm caused by the 

actions of the other officers when that officer observes or has 

reason to know: (1) that excessive force is being used; or (2) that 

a citizen has been unjustifiably arrested; or (3) that any 

constitutional violation has been committed by a law 

enforcement official. Thus, if a law enforcement officer fails or 

refuses to intervene when a constitutional violation such as an 

unprovoked beating takes place in his presence, the officer can 

be held liable under Bivens.

There must have been a realistic opportunity to intervene 

to prevent the harm from occurring. In order for the officer to be 

liable, the excessive force must be of sufficient duration to allow 

the officer to intervene. If so, the officer who stands by without 

trying to assist the victim becomes a ―tacit collaborator.‖
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While most of the cases that recognize this cause of 

action involve state officials being sued under § 1983, the 

general trend in the appellate courts is to incorporate § 1983 

law into Bivens suits. Since the remedial purposes of Bivens

and § 1983 are essentially the same, appellate courts have 

generally looked to the principles established in the case law 

construing § 1983 when deciding cases brought under Bivens.

E. Immunity For Constitutional Violations

1. Sovereign Immunity

Sovereign (governmental) immunity has its common law 

roots in England under the theory that ―the King can do no 

wrong.‖ This theory was an outgrowth of the divine rights of 

kings, and, in effect, prevented any and all lawsuits against the 

Crown.

When the individual sovereign was replaced by the 

modern state, this principle was adopted to provide that a suit

against a ruling government without its consent was 

inconsistent with the very idea of supreme executive power. In 

the United States, public policy and necessity dictate that the 

United States as sovereign is immune from suit unless it 

consents to be sued. The terms of its consent to be sued in any 

court define the court‘s jurisdiction to entertain the suit.

2. Absolute Immunity

―Absolute immunity‖ avoids personal civil liability. It is 

conferred because of the status or position of the favored 

defendant. Officials, such as legislators in their legislative 

functions, judges in their judicial functions, and certain 

executive branch officials (the President, executive officer 

engaged in adjudicative functions, and prosecutors), whose 

special functions or constitutional status requires complete 

protection from suit, may assert the defense of absolute 

immunity.
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3. Qualified Immunity

This type of immunity applies to law enforcement officers. 

When a law enforcement officer is sued for a constitutional tort, 

the officer may be entitled to qualified immunity. Qualified 

immunity (sometimes called ―good faith‖ immunity) is an 

affirmative defense that can protect the officer from individual 

civil liability. It must be raised by the defendant (officer). 

Qualified immunity shields government officials from personal 

liability for civil damages provided: (1) they act reasonably and 

in good faith; and (2) their conduct does not violate clearly 

established statutory or constitutional rights of which a 

reasonable law enforcement officer would have known.

The cases of Hanlon v. Berger and Wilson v. Layne

illustrate the concept of ―qualified immunity.‖ In both of these 

cases, the plaintiffs sued federal agents under Bivens, alleging 

violations of the Fourth Amendment when the agents brought 

the media along during the service of an arrest warrant and a 

search warrant. In Wilson, federal marshals took a newspaper 

reporter and photographer along when they attempted to serve 

an arrest warrant at the home of the suspect‘s parents. In 

Hanlon, federal Fish and Wildlife Service agents took CNN along 

when they served a search warrant at the Berger ranch. Both 

followed established agency ride-along policies.

The Supreme Court had two questions to decide. First, 

was there a Constitutional violation? The Supreme Court held 

that police violate the Fourth Amendment rights of homeowners 

by bringing members of the media or other third parties into 

homes during the execution of a warrant, when the presence of 

the third parties in the home is not in aid of the warrant‘s 

execution. In other words, these federal agents had committed 

a Constitutional tort.

Second, if a violation was shown, were the agents entitled 

to qualified immunity? In assessing whether a law enforcement 

officer is protected by qualified immunity, the test to be applied 

is one of ―objective reasonableness.‖ The Supreme Court held 

that the agents acted reasonably and in good faith, relying on 
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their established policy for media ―ride-alongs‖ and the fact that 

media ride-alongs were a widespread practice.

In assessing whether the right that was allegedly violated 

was ―clearly established,‖ the Court said that the contours of 

the right must be sufficiently clear that a reasonable official 

would understand that what he is doing violates that right. The 

Court held that it was reasonable for these agents to have 

believed that bringing the media along during the execution of 

an arrest or search warrant (even in a home) was lawful. As 

such, the right was not clearly established. Therefore, the 

agents were entitled to qualified immunity.

In sum, when the defense of qualified immunity is 

applicable in a lawsuit alleging a constitutional tort, officers will 

not be held personally liable as long as their actions are 

reasonable in light of current law.

V. Civil Liability Under State Tort Principles

As stated previously, tort actions against the Federal 

government and its employees and agents can generally be 

classified as constitutional torts (based on a violation of rights 

found in the United States Constitution) or as state law torts 

(principles of civil liability that exist under the laws of the 

states). The traditional state law torts applicable to federal law 

enforcement officers are: (1) negligent torts; and (2) intentional 

torts (such as battery, assault, and false imprisonment).

A. Negligent Torts

For Federal law enforcement officers, negligence is the 

most frequently occurring of the state law torts due the 

operation of government motor vehicles. The elements of an
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action for negligence are: Duty; Breach of Duty; Causation; and 

Damages.

1. Duty

Generally, there is no 

affirmative duty to act. That is, 

the law does not usually 

require that people intercede, 

even in situations in which 

they could prevent property 

damage, injury, or loss of life at 

no risk to themselves. Failure 

to intercede will not create civil 

liability for death or injury or 

property damage. There are, 

however, exceptions to this general rule. For example, there is 

an affirmative duty to act when the plaintiff‘s peril results from 

the defendant‘s own negligence. In this case, the defendant is 

expected to intercede to aid the plaintiff.

In the law enforcement context, the general rule is that 

there is no right to basic public services and no affirmative duty 

on law enforcement to act when members of the general public 

are imperiled. There are, however, exceptions to this general 

rule. Special relationships can exist between a person and law 

enforcement creating an affirmative duty to act, such as when 

the police promise to protect the target of a threat (i.e., the 

Witness Protection Program), or when they assure a caller that 

they are responding to their request for assistance. Failure to 

do so can result in civil liability when reliance on those specific 

promises of protection causes the person to forego steps to 

protect themselves.

A special relationship will also exist when law 

enforcement officers have someone in their custody. Once the 

government takes a person into its custody, the law imposes a 

duty to assume some responsibility for the person‘s safety and 

general well-being. For example, federal officers were found to 

be liable when, while walking a disabled and intoxicated 

Elements of a

Negligent Tort

Duty

Breach Of Duty

Causation

Damages
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arrestee up a ramp and into the police station, the arrestee 

tripped and fell striking her head. As a result, the arrestee 

suffered a fracture and other injuries. The Court said that the 

arrestee would not have fallen were it not for the officers‘

negligence. The officers had a duty to assist the arrestee in 

walking to ensure that she did not fall since the arrestee‘s 

hands were cuffed behind her back. The officers breached that 

duty by failing to hold on to her securely to prevent her 

stumbling and by failing to break her fall.

Acting when not required to do so may create civil liability 

when there would otherwise be none. When there is no 

affirmative duty to act, one who gratuitously acts for the benefit 

of another assumes a duty to act like an ordinary, prudent, 

reasonable person. The actor may be civilly liable for injuries or 

property damage suffered by the person they are trying to aid.

In response to such liability exposure, many states have 

enacted ―Good Samaritan‖ statutes. These statutes are designed 

to encourage medical professionals to intervene to save lives 

and prevent serious injury when they would otherwise have no 

legal duty to do so. These laws protect licensed doctors, nurses, 

paramedics, EMTs, and similarly trained and skilled persons

from civil liability when they voluntarily render emergency 

treatment. They are still liable, however, for gross negligence.

2. Breach of Duty

Breach of duty is proven by showing that the defendant 

failed to meet the applicable standard of care. What is the 

applicable standard of care? For those to whom the defendant 

owes or has assumed a duty, the basic standard of care 

required is that of an objective ―reasonable person.‖ A 

fundamental question in a negligence action is, ―What would a 

reasonable person have done under the same or similar 

circumstances?‖

Sometimes, however, special standards will apply 

requiring a person to exercise care beyond that which would be 

expected of an ordinary ―reasonable person.‖ For example, 

professionals are required to possess and exercise the 
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knowledge and skill of a member of their profession in good 

standing and to use such superior judgment, skill, and 

knowledge as they may actually possess. For law enforcement 

officers and agents, for acts of a law enforcement nature within 

the scope of their duties, the fundamental question becomes, 

―What would a reasonable law enforcement officer or agent have 

done under the same or similar circumstances?‖

A breach of duty can be shown by proving that:

The care exercised was below the standard of care 

established by custom or usage;

A violation of a pertinent statute such as a violation 

of statutory rules of the road by a Federal employee 

in driving a motor vehicle in the course of 

employment; or

A violation of agency policies and practices.

3. Causation

The defendant‘s act that breached the duty of care must 

be the cause of plaintiff‘s damages.

4. Damages

The plaintiff must suffer some form of damage. In civil 

suits, the plaintiff may recover for the personal injury or 

property damage caused by defendant‘s breach of duty. The 

recovery is generally compensatory, designed to make the 

injured party whole by reimbursing actual expenses and 

providing for pain and suffering and permanent injury and 

damage. It may also include attorney‘s fees and costs of 

litigation. In intentional torts, it may also include punitive 

damages designed to punish the wrongdoer and deter future 

similar conduct.
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B. Intentional Torts

The elements of an 

intentional tort are identical 

to those of a negligent tort

except that the act that 

causes the damages must 

be willful and intentional. 

Intentional torts can 

be against a person, or 

against property. Among 

the most common 

intentional torts in each

category are the following:

1. Intentional Torts to the Person

Battery - a harmful or offensive contact with the 

plaintiff‘s person by the defendant.

Assault - a reasonable apprehension in the plaintiff 

of an immediate harmful or offensive contact with 

his person by the defendant.

False Imprisonment - the defendant‘s confining or 

restraining the plaintiff to a bounded area; in 

certain cases confining the plaintiff‘s personal 

property may give rise to a suit alleging false 

imprisonment.

False Arrest - a special category of false 

imprisonment involving the invalid use of the 

defendant‘s legal authority to confine the plaintiff.

Intentional Infliction of Emotional Distress - the 

infliction of emotional distress on the plaintiff by a 

defendant who has engaged in extreme and 

outrageous conduct.

Elements of an

Intentional Tort

Duty of Care

Willful / 

Intentional Act 

Which Breaches 

Duty

Causation

Damages
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2. Intentional Torts to Property

Trespass (damage) to Land (real property)

Trespass (damage) to Chattels (personal property)

Conversion (personal property) (theft)

VI. The Federal Tort Claims Act (FTCA)

In 1946, Congress enacted the Federal Tort Claims Act 

(FTCA). This act makes the United States liable under the local 

law of the place where the tort occurs for the negligent or 

wrongful acts or omissions of Federal employees within the 

scope of their employment in the same manner and to the same 

extent as a private individual under like circumstances.

The purposes of the FTCA are two-fold: (1) to provide 

persons injured by the torts of Federal employees with an 

appropriate remedy against the United States (a waiver of 

sovereign immunity) ; and (2) to protect Federal employees 

from personal liability for torts committed within the scope of 

their employment (absolute immunity) .

Under the FTCA, a ―federal agency‖ includes the 

executive departments, the judicial and legislative branches, the 

military departments, and corporations primarily acting as 

instrumentalities or agencies of the United States, but expressly 

excludes any contractor with the United States.

Under the FTCA, an ―employee of the government‖

includes officers or employees of any Federal agency, members 

of the military or naval forces of the United States, members of 

the National Guard while engaged in training or duty, and 

persons acting on behalf of a Federal agency in an official 

capacity.

A. Negligent Torts

The FTCA covers lawsuits for negligent or wrongful acts 

or omissions of Federal employees within the scope of their 
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employment that cause injury, loss of property, personal injury 

or death. This remedy against the United States is exclusive of 

any other civil action or proceeding for money damages by 

reason of the same subject matter against the employee whose 

act or omission gave rise to the claim. In those cases where the 

Federal government has waived its sovereign immunity from 

torts, a tort action against the United States is the sole remedy 

available to a plaintiff. A suit against the individual federal 

employee personally is precluded.

In effect, the United States has partially waived sovereign 

immunity. The United States has consented to be liable in the 

same manner and to the same extent as a private individual 

under like circumstances while reserving the right to any other 

defense to which it is entitled.

B. Intentional Torts

The FTCA specifically does not apply to intentional torts 

committed by Federal employees who are not law enforcement 

officers. However, intentional torts such as assault, battery, 

false imprisonment, false arrest, and malicious prosecution are 

common allegations against law enforcement officers. As a 

result, the Act was amended to provide additional protection for 

federal ―investigative and law enforcement officers.‖

The term ―investigative or law enforcement officer‖

means any officer of the United States who is empowered by law 

to: (1) execute searches; or (2) seize evidence, or (3) make 

arrests for violations of Federal law. Any one or more of these 

criteria will qualify. The FTCA now provides that if the act was 

that of an investigative or law enforcement officer, the 

government will permit itself to be sued with respect to assault, 

battery, false imprisonment, false arrest, malicious prosecution, 

or abuse of process.

C. Scope of Employment

―Scope of employment‖ is defined by determining whether 

the employee was performing the employer‘s (Federal 
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government) business at the time of the occurrence. All the 

facts and circumstances surrounding the incident are 

considered to make this determination. Factors such as the 

employee‘s job description and any agency policies promulgated

through directives and general orders must also be taken into 

account.

―Scope of employment‖ can be limited in a number of 

different ways. Law enforcement officers for some agencies and 

departments have broad authority to investigate and arrest 

anywhere for any federal crime. Others are limited to certain 

federal offenses or certain defined geographical areas. 

Exceeding these limitations can mean that the law enforcement

officer is outside the scope of employment.

Generally, Federal law enforcement officers who intervene 

in purely state and local criminal offenses are outside the scope 

of employment. There is no affirmative duty to intervene and, 

therefore, no civil liability for failure to do so. However, 

intervention in state and local incidents can create liability for 

both the individual federal law enforcement officer and the 

agency or department when there would otherwise be none. 

Even though states may grant varying degrees, up to full, of 

peace officer status to Federal law enforcement officers, many 

agency and department policies prohibit officers and agents 

from getting directly involved in state and local incidents.

1. The Federal “Good Samaritan” Act

Due to the vague nature of ―scope of employment‖ and the 

reluctance of many federal agents and officers to become 

involved in state criminal violations for fear of being outside 

their scope of employment, Congress enacted the ―Federal Law 

Enforcement Officers‘ Good Samaritan Act.‖ It applies only to 

law enforcement officers as defined in 5 U.S.C. § 8401(17).

Not every federal law enforcement officer is covered, but 

for those that are, the Act provides that they are within the 

scope of employment when taking reasonable action, including 

the use of force: (1) to protect an individual in the presence of 
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an officer from a crime of violence; or (2) to provide immediate 

assistance to individuals who have suffered or who are 

threatened with bodily harm; or (3) to prevent the escape of any

individual whom the officer reasonably believes to have 

committed in the presence of the officer a crime of violence.

In essence the Act extends the federal scope of 

employment to non-federal crimes of violence being committed 

in the federal officer‘s presence. It does not expand federal 

arrest authority. But, because this law is still relatively new, 

the contours of its protections are not clearly defined. Does it 

obligate the Department of Justice to provide legal counsel to 

the federal officer or agent? Does it mandate that the United 

States indemnify the officer or agent for any damages should 

the claim be successful? There are no clear answers. There

remains a real risk that intervening in purely state and local 

incidents will be outside the scope of employment and outside 

the purview of the FTCA, exposing the individual officer or agent 

to personal, civil liability.

2. Scope of Employment and Government Vehicles

Another common scope of employment issue involves the 

use of government vehicles. When is the use of a government 

vehicle considered outside the scope of employment? Agency or 

department policies and procedures generally outline 

authorized and prohibited uses. State law often defines scope of 

employment in the use of government vehicles in terms of 

―official business‖ and ―personal frolic.‖ State laws vary over 

how much of a deviation (both in purpose and distance) is 

required to put the use outside the scope of employment.

A law enforcement officer found to have used a 

government vehicle outside the scope of employment will not be 

protected by the FTCA and will, therefore, be personally liable 

for the injury and damages caused. Therefore, KNOW, 

UNDERSTAND, AND FOLLOW pertinent agency policies and 

procedures. Once the facts are determined, the law of the state 

where the alleged injury occurred is applied to decide whether 

the employee was ―within the scope of employment.‖
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3. Certification That Employee Was Acting Within the 

Scope of Employment

When presented with a claim, the agency makes the 

initial decision on scope of employment. If the agency refuses 

to certify that the employee was acting within the scope of 

employment, the employee may request the Attorney General to 

so certify. Upon certification by the Attorney General that the 

defendant employee was acting within the scope of employment 

at the time of the incident on which the claim is based, the 

United States will be substituted as the party defendant. If the 

Attorney General refuses to certify scope of employment, the 

employee may petition the U.S. District Court to find and certify 

that the employee was acting within the scope of employment.

D. Initiating a Civil Lawsuit under the FTCA

Before initiating a civil lawsuit against the government, a 

claimant must first exhaust administrative remedies. The 

agency may deny the claim or negotiate settlement of the claim 

within certain limits. Acceptance by a claimant of a settlement 

is final and conclusive, and constitutes a complete release of 

any claim against the United States and the employee of the 

government whose act or omission gave rise to the claim. The 

claimant may file suit only after the claim has been 

administratively denied or the claimant has refused the 

Government‘s final offer of settlement.

The United States District Court has exclusive 

jurisdiction over civil actions on FTCA claims against the United 

States. Furthermore, the trial in District Court will be without a 

jury.

A tort claim against the United States is barred unless it 

is presented in writing to the appropriate federal agency within 

two years of the date of the injury or damage. Suit may be filed 

beyond that two year limit so long as it is within six months of 

the date of the final denial of the claim by the agency to which it 

was presented.
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The absolute immunity afforded Federal employees under 

the FTCA against personal liability for torts does not apply in a 

Bivens action alleging a constitutional tort. Constitutional torts

are never within the scope of employment. Instead, the federal 

officer will likely rely upon qualified immunity regarding a 

constitutional tort claim.

E. Defenses

There are several common defenses available to every 

defendant to the extent that the defenses are recognized in the 

state where the tort occurred.

1. To Negligent Torts

Assumption of Risk - If a plaintiff has voluntarily 

placed himself or herself in a position of harm, 

knowing the dangers involved, the defendant will 

not be responsible for the subsequent injury to 

plaintiff. Plaintiff has assumed the risk of such 

injury.

Contributory/Comparative Negligence - If the 

plaintiff has been negligent, and that negligence is a 

cause of the plaintiff‘s damages, then, depending on 

the law of the state where the incident occurred, 

the plaintiff may be prevented from recovering 

anything against the defendant or may have the 

recovery apportioned according to the degree of 

culpability of each.

2. To Intentional Torts

Consent - Knowing and voluntary consent by 

plaintiff will bar recovery against defendant. 

However, defendant‘s actions must stay within the 

bounds (scope) of the consent.

Self-Defense and Defense of Others - Reasonable 

force may be used to defend against harmful or 
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offensive bodily contact. ―Reasonable force‖ is a fact 

intensive concept. The general rule is that only 

such minimal force as is necessary to prevent the 

harm is allowed.

Necessity - A defendant who acts to prevent a 

threatened injury from some force of nature, or 

other cause, independent of the defendant is acting 

under necessity. Such a defendant may not be 

liable for a lesser harm committed to prevent or 

avoid a greater harm.
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Chapter Twelve

Searching and Seizing Computers

and Other Electronic Devices

I. INTRODUCTION.................................................................460

II. PRIVATE SEARCHES ..........................................................460

III. REP IN COMPUTERS..........................................................460

A. Generally .......................................................................... 460

B. Losing REP ....................................................................... 461

1. Exposure to the Public................................................. 461

2. Stolen Computers ........................................................ 461

3. Third Party Possession................................................. 462

IV. EXCEPTIONS TO THE WARRANT REQUIREMENT ......................462

A. Consent ............................................................................ 462

1. Requirements .............................................................. 462

2. Scope of a consent search............................................ 463

3. Third party consent ..................................................... 463

4. Implied consent and network banners ......................... 464

B. Exigent Circumstances ..................................................... 465

C. Plain View......................................................................... 466

D. Search Incident to Arrest .................................................. 467

E. Inventory Searches ........................................................... 469

V. PREPARING A SEARCH WARRANT .........................................470

A. The Need for Pre-Search Information ................................ 470

B. Where to Look and What to Look For ................................ 471

1. The Independent Component Doctrine......................... 471

2. What to Look For ......................................................... 472

C. Justifying Off-Site Searches .............................................. 473

D. The Need for Multiple Search Warrants............................. 475

VI. EXECUTING A SEARCH WARRANT.........................................476

A. Technical Assistance During Execution............................. 476

B. Knock and Announce........................................................ 477

C. Time Frames Governing Retention of Seized Computers.... 478

VII. AUTHENTICATION OF COMPUTER INFORMATION .....................479

*****
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I. Introduction

The Fourth Amendment applies when searching 

computers and other electronic devices. This chapter will refer 

to basic Fourth Amendment concepts in summary fashion. 

Therefore, if you are unfamiliar with basic Fourth Amendment 

concepts, first review the Fourth Amendment chapter of this 

student handbook.

Searching a computer without a warrant is legally 

permissible in one of three situations: (1) when the search is 

conducted by a private (non-governmental) entity; (2) when 

government conduct does not intrude into an area where an 

individual has a ―reasonable expectation of privacy‖ (REP); or (3) 

when a recognized exception to the warrant requirement exists.

II. Private Searches

The Fourth Amendment does not apply to a search 

conducted by a private person who is not acting as an agent of 

the government or with the participation or encouragement of a 

government official. Private searches occur most commonly 

when customers take their computers to a private repair facility 

and incriminating evidence is found by the repair person. This 

evidence may be used by law enforcement even though it was 

obtained without a warrant. When searching without a warrant 

after a private search has occurred, you may not exceed the 

scope of the private search. This standard requires you to limit 

your investigation to the precise scope of the private search 

until you obtain a warrant or identified a valid exception to the 

warrant requirement.

III. Reasonable Expectation of Privacy (REP) in 

Computers

A. Generally

The test for REP is: first, whether the individual exhibited 

an actual (subjective) expectation of privacy; and, second, 

whether that expectation is one society is prepared to recognize 

as reasonable. If either prong of the test is not met, then no 
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REP exists. In computer search cases, the question is whether 

an individual enjoys a reasonable expectation of privacy in 

electronic information stored on computers, pagers, floppy 

disks, and other electronic storage media. If the answer is ―yes,‖ 

then you ordinarily must obtain a warrant before accessing the 

information. In analyzing the issue of REP in computers, courts 

have repeatedly compared computers to closed containers such 

as filing cabinets. That is a useful analogy as the Fourth 

Amendment generally prohibits you from accessing and viewing 

information stored in a computer without a warrant if, in the 

same situation, you would be prohibited from opening a closed 

container and examining the contents.

B. Losing REP in a Computer

Although individuals generally have a reasonable 

expectation of privacy in their computers, circumstances may 

eliminate that expectation. Some of these circumstances are

outlined below.

1. Exposure to the Public

In the landmark case of Katz v. U.S.

1, the Supreme Court 

made clear that ―what a person knowingly exposes to the 

public, even in his own home or office, is not a subject of Fourth 

Amendment protection.‖ When individuals make information 

on a computer openly available, they lose any expectation of 

privacy in that information. This can often occur when a person 

leaves data that is not encrypted or password protected on a 

computer that is accessible to others.

2. Stolen Computers

A thief will not have REP in the contents of a computer he 

has stolen. This includes a computer that was obtained through 

fraud – such as a purchase with a stolen credit card; however, 

the rightful owner or possessor of the stolen computer generally 

retains REP in the contents.

 

1 Cases named in this chapter without a case cite are briefed in the 

companion book, Legal Division Reference Book.
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3. Third Party Possession

The courts have repeatedly held that individuals who 

divulge information to third parties, even with the subjective 

expectation that the information will remain private, cannot 

retain control over that information once it has been provided to 

the third-party. They assume the risk that the third party will 

divulge the information to others.

IV. Exceptions to the Warrant Requirement

Warrantless searches that fall within an established 

exception to the warrant requirement do not violate the Fourth 

Amendment. Below are some of the common exceptions to the 

warrant requirement as they apply to searches of computers.

A. Consent

If a person gives valid consent to search, a warrant is not 

required.

1. Requirements

There are two requirements for a consent search to be 

valid. First, the consent must be given voluntarily (i.e., not 

coerced). If a defendant later challenges the voluntariness of 

his consent, for example, in a motion to suppress, the 

government carries the burden of proving that consent was 

voluntary. The consent must be also given by an individual 

with either actual or apparent authority over the computer to be 

searched.

In computer crime cases, two consent issues are 

common. First, when does a search exceed the scope of 

consent? For example, when a target consents to the search of 

a ―computer,‖ does the consent authorize you to search devices 

attached to the computer (such as a thumb drive or a portable 

USB hard drive) or media (such as CDs or DVDs) lying about on 

the computer desk? Second, who is the proper party from 

whom to obtain consent? Do roommates, friends, and parents 
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have the authority to consent to a search of another person‘s 

computer files?

2. Scope of a consent search

The scope of a consent search is defined by the terms and 

plain meaning of the consent given. An individual may limit the 

scope of any consent. The scope of a consent search cannot 

exceed, either in duration or physical scope, the limits of the 

consent given. Individuals may also revoke their consent. 

When consent is revoked, you must stop searching unless 

another Fourth Amendment exception applies.

Does consent to search a location or item implicitly 

include consent to access computer memory or electronic 

storage devices encountered during the search? Courts look to 

whether the particular circumstances of the request for consent 

implicitly or explicitly limited the scope of the search to a 

particular type, scope, or duration. Be especially careful about 

relying on consent as the basis for a search when consent was 

obtained for one reason or type of evidence, but you then want 

to conduct a search for a different reason or type of evidence. 

Because the decisions evaluating the scope of consent to search 

computers have sometimes reached unpredictable results, you 

must indicate the scope of the search explicitly when obtaining 

a suspect‘s consent to search a computer.

While consent to search ―a computer‖ includes the active 

memory, and internal hard drives, it does not necessarily

include storage media such as CDs, DVDs, thumb drives, 

portable hard drives, floppy diskettes and other media. Caution 

is best here; the consent obtained should specifically include 

these items if you want to search them. 

3. Third party consent

It is common for several people to use or own the same 

computer equipment. If any of those people give permission to 

search for data, you may generally rely on that consent. In such 

cases, all users have assumed the risk that a co-user might 
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discover everything in the computer, and might also permit law 

enforcement to search this ―common area‖ as well. A private 

third party may consent to a search of property under the third 

party‘s joint access or control. This rule often requires you to 

inquire into the third party‘s rights of access before conducting 

a consent search, and to draw lines between those areas that 

fall within the third party‘s common authority and those areas 

outside the third party‘s control.

Consent from all persons who could give it is not 

necessary to have a valid consent search; the valid consent of 

one person authorized to give consent is enough. Recent cases, 

however, changed the law in a situation when one person 

consents and another objects. Prior to the Supreme Court‘s 

holding in Georgia v. Randolph in 2006, consent by an 

occupant to search a home was sufficient to search even if 

another occupant objected. Randolph reversed that line of cases 

and held that when any cohabitant who is present on the 

premises objects to the search, officers may not conduct a 

consent search even if another cohabitant has consented. The 

rationale in Randolph has since been extended to prohibit a 

consent search of a computer in the home when the wife gave 

consent but the husband – who was not present – objected to 

the search.

The presence of encrypted or password protected data 

will, in most cases, indicate the absence of common authority to 

consent to a search by co-users who do not know the password 

or possess the encryption key. Conversely, if the suspect has 

given the co-user the password or encryption key, then the couser probably has the requisite common authority to consent to 

a search of the files.

4. Implied consent and network banners

Individuals often enter into agreements with the 

government whereby they waive some of their Fourth 

Amendment rights. For example, computer users may waive 

their rights to privacy as a condition of using a computer or the 

system to which the computer is connected. This often occurs 

through the use of written employment policies and/or network 
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―banners.‖ Banners are written notices that greet users before 

they log on to a computer or computer network. When 

individuals who have waived their rights have their computers 

searched and challenge the searches on Fourth Amendment 

grounds, courts typically focus on whether the waiver 

eliminated the individual‘s reasonable expectation of privacy 

against the search. A few courts have approached the same 

problem from a slightly different direction and have asked 

whether the waiver established implied consent to the search.

Consent to a search need not necessarily be written or 

verbal. It may be implied or inferred from an individual‘s 

conduct. Some courts have proven reluctant to apply the 

implied consent doctrine absent evidence that the suspect 

actually knew of the search and voluntarily consented to it at 

the time the search occurred. Other courts have held that the 

banner language was sufficient to permit intrusions only for 

network administrator housekeeping but not for general law 

enforcement purposes. These courts have preferred to examine 

general waivers of Fourth Amendment rights solely under the 

reasonable-expectation-of-privacy test. In any event, relying on 

banners has proved perilous. Consult with an AUSA before 

relying on a banner search.

B. Exigent Circumstances

Under the ―exigent circumstances‖ exception to the 

warrant requirement, you may search without a warrant if the 

circumstances ―would cause a reasonable person to believe that 

entry ... was 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.‖ United States v. 

Alfonso. In determining whether exigent circumstances exist, 

consider: (1) the degree of urgency involved, (2) the amount of

time necessary to obtain a warrant, (3) whether the evidence is 

about to be removed or destroyed, (4) the possibility of danger 

at the site, (5) information indicating the possessors of the 

contraband know the police are on their trail, and (6) the ready 

destructibility of the contraband. Exigent circumstances often 
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arise in computer cases because electronic data is perishable. 

Computer commands can destroy data in a matter of seconds, 

as can humidity, temperature, physical mutilation, or magnetic 

fields created, for example, by passing a strong magnet over a 

hard drive or flash memory such a thumb drive.

The exigent circumstances exception does not allow you 

to search or seize beyond what is necessary to prevent the 

destruction of the evidence. When the exigency ends, the right 

to conduct warrantless searches does as well; the need to take 

certain steps to prevent the destruction of evidence does not 

authorize you to search without a warrant once the exigency 

has ended. Accordingly, the seizure of computer hardware to 

prevent the destruction of information it contains will not 

ordinarily support a subsequent search of that information 

without a warrant. Once steps have been taken to prevent 

destruction of the evidence, you must quickly move to obtain a 

warrant unless valid consent to search is obtained.

C. Plain View

Evidence of a crime may be seized without a warrant 

under the plain view exception to the warrant requirement. To 

rely on this exception, you must be in a lawful position to 

observe and access the evidence, and its incriminating 

character must be immediately apparent. Horton v. California.

The plain view exception does not allow you to intrude 

into areas where REP exists. In other words, it is an exception 

that does not permit you to search, but only to seize. In 

computer cases, this means that you cannot rely on the plain 

view exception to open a closed computer file, look into a floppy 

diskette lying in the open, or search a computer because

incriminating evidence has been seen. The contents of a file that 

must be opened to be viewed are not in ―plain view.‖ For 

example, if you walk by a computer in a public place and see 

data on a suspect‘s computer monitor that is probable cause 

evidence of a crime, that permits seizing the computer at that 

time to prevent the destruction of the data. Thereafter, you will 

need a warrant or consent to search the computer; what was 

seen on the monitor can be used to establish probable cause. 
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The plain view rule also applies when a computer is being 

searched pursuant to a warrant and evidence outside the scope 

of the warrant is discovered. For example, with a search 

warrant to look for evidence of fraud, agents open a computer 

file that turns out to be an image of child pornography.2 This 

image is admissible because the agent was lawfully searching 

the computer pursuant to a warrant. If the agent continues the 

search for evidence of fraud and discovers more child 

pornography, those images too will be admissible so long as the 

agent remained within the scope of the warrant and a court 

later determined the agent had not ―redirected‖ his efforts to 

look for child pornography. If the agent was searching outside 

the scope of the warrant – that is, a court determined the agent 

was looking for something not listed on the warrant - the plain 

view rule would not save the items found during the search that 

were outside the scope of the warrant.

The best and recommended rule is that if during a 

computer search you find evidence of a crime that is outside the 

scope of the warrant, stop the search and obtain another 

warrant to search for the newly discovered evidence thereby 

expanding the scope of the original warrant.

D. Search Incident to Arrest (SIA)

A search conducted incident to a lawful custodial arrest is 

an exception to the warrant requirement and is considered 

reasonable. SIAs are permissible without a warrant because of: 

(1) the need to disarm the suspect to take him into custody, and 

(2) the need to preserve evidence for later use at trial. The 

permissible scope of an SIA includes a search of the person and 

the areas under the person‘s immediate control for weapons, 

means of escape, and evidence of a crime.

A search incident to arrest may only be conducted when 

two requirements have been met. First, there must have been a

 

2 Because suspects can conceal evidence by changing the file name or 

changing file extensions to make, for example, an image file appears to be a 

word processing document, agents are usually not restricted to looking for 

specific types of files or files with specific names.
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lawful custodial arrest. A search incident to arrest may not be 

conducted if an actual arrest does not take place. The second 

requirement is that the search be substantially 

contemporaneous with the arrest.

Agents are more frequently encountering handheld and 

portable computers and other electronic storage devices when 

conducting searches incident to arrest. With regard to searching 

electronic storage devices incident to arrest, the issue of the 

proper scope is not entirely clear. Courts have compared 

electronic pagers to closed containers, recognizing that an 

individual has REP in an electronic pager. As with other closed 

containers, a search warrant or an exception to the warrant 

requirement authorizes an intrusion into that expectation of 

privacy.

Courts have consistently allowed electronic pagers to be 

searched incident to lawful arrest, relying primarily on two 

factors: First, because of the finite nature of a pager‘s 

electronic memory, incoming pages may destroy currently 

stored telephone numbers in a pager‘s memory. Second, merely 

turning off the power or touching a button can destroy the 

contents of some pagers, creating a potential for destruction of 

evidence. For both of these reasons, ―it is imperative that law 

enforcement officers have the authority to immediately  ̳search‘ 

or retrieve, incident to a valid arrest, information from a pager

in order to prevent its destruction as evidence.‖

As to cell phones, the courts have begun to apply the 

same rationale as was applied to pagers. Those cases hold that 

cell phones discovered during a search incident to arrest may 

be searched for the data that the phone already contains to 

include incoming and outgoing text messages and phone logs. 

Data that is merely accessible from the cell phone but that is 

not stored on the cell phone itself (such as voice mail) may not 

be searched under a search incident to arrest authority.

You must be aware that searching cell phones is an 

emerging area in the law. Some courts have disallowed SIA cell 

phone searches because they were not contemporaneous with 
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the arrest (because done an hour later at the police station) or 

because the cell phone was not in the suspect‘s possession 

when arrested. Other courts have expressed concern that cell 

phones contain too much personal information for the exception 

to apply. Whenever possible, obtain a warrant or valid consent.

Courts have not yet addressed whether the law permits 

warrantless searches of electronic storage devices that contain 

more information than pagers or cell phones. Various court 

decisions have granted officers the authority to search wallets, 

briefcases, and address books during a valid search incident to 

arrest. By analogy, it can be argued that you should be able to 

search electronic counterparts (such as electronic organizers, 

thumb drives, and Personal Digital Assistants (Palm Pilots)) as 

well. There is yet no direct case law to support that proposition, 

but courts have suggested that while a search through a pager 

or cell phone is reasonable incident to an arrest, a timeconsuming search through a computer or other device with a 

large data capacity presents a different case and is 

unreasonable. When in doubt, obtain a search warrant before 

examining the contents of electronic devices that might contain 

large amounts of information.

E. Inventory Searches

Inventory searches are a well-recognized exception to the 

warrant requirement. Evidence found during a lawfully 

conducted inventory search may be used against the defendant 

in a later trial. There are three justifications for allowing an 

inventory of lawfully impounded property without first obtaining 

a warrant: first, to protect the owner‘s property while it remains 

in police custody; second, to protect against claims or disputes 

over lost or stolen property; and third, to protect law 

enforcement from potential dangers that may be located within 

the property.

There are two requirements for conducting a valid 

inventory search. First, the inventory must not be a ruse to 

uncover evidence of a crime. Second, a valid inventory must 

also be conducted in accordance with a standardized inventory 
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policy aimed at accomplishing the non-investigatory purposes of 

inventory searches.

In one the few cases that touch on this issue, the court 

held that an ―inventory‖ of data contained on a cell phone is not 

a valid inventory search because it does not serve the purposes 

of a stationhouse inventory. The court noted that inventory 

searches are to protect the arrestee‘s belongings and ―here the 

officers could achieve this purpose simply by listing the 

defendant‘s cell phones as items on the booking forms.‖ An 

inventory rationale should not be used to justify a search of cell 

phones or other electronic devices.

V. Searching with a Warrant – Special Considerations in 

Preparing a Warrant to Search and/or Seize 

Computers

Searches that target computers and data are different 

from traditional searches. In most searches, you are looking for 

a particular physical item in a particular location. The search 

for electronic evidence is different. Because computer files 

consist of electrical impulses that can be stored anywhere and 

instantly moved or deleted, you may not know where computer 

files are stored or in what form. The data may be on the 

computer being searched, but electronically hidden from view. 

The filenames may be anything the suspect wants them to be. 

The data may be instantly erased, modified, or sent to a 

confederate. The same data may exist in identical form in many 

different places. Court cases recognize that computer records 

are extremely susceptible to tampering, hiding, or destruction.

A. The Need for Pre-Search Information

If you were to execute a search warrant for a particular 

location, you would want to know as much as possible about 

the area in advance. In computer searches, you must also know 

the terrain where the evidence might be concealed. At a 

minimum, you should try to determine:

What types of computers and operating systems are 

involved?
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What types of software does the suspect use?

Is the computer connected to a network? Where is 

the computer network server located?

Can the computer or data storage device be 

searched safely and effectively on-site, or must the 

computer be moved to another location to conduct 

the search?

Gathering this information may involve an interview of 

the system administrator of the targeted network and those 

familiar with the network. This might be done in an undercover 

capacity. On-site visits (often undercover) may also reveal 

important information about the hardware involved.

B. Fourth Amendment and the Particularity 

Requirement – Where to Look and What to Look For

The Fourth Amendment does not permit general 

exploratory searches, but requires that the place to be searched 

and things to be seized be described with ―particularity.‖ This 

requirement applies equally to searches of computers and the 

data contained on them.

1. Where to Look and the “Independent 

Component Doctrine” 

You must be particular about where to look for data. 

Each component to be searched must be viewed independently

and there must be probable cause to search each component. 

For example, to say that you want to search or seize a 

―computer‖ can be both too broad and too narrow, and it rarely 

meets the Fourth Amendment particularity requirement.

Data is often the real objective of a computer search. 

Much data is not stored on the computer itself or the hard drive 

in the computer, but on removable media such as diskettes, 

flash memory devices such as thumb drives, memory chips, zip 

drives, CDs/DVDs, and the like. In recent years, external USB 

(Universal Serial Bus) and fire wire external hard drives have 
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become very affordable, reliable, and an excellent choice for 

storing, moving, protecting and concealing data.

Other components can also be the source of evidence. If a 

keyboard, monitor, printer, scanner, cables or other devices or 

peripherals need to be seized, they should be independently 

listed and their seizure justified.

Other items to search for would include computer 

manuals so officers and forensic examiners know how to 

circumvent encryption and/or passwords; original software and 

manuals; and notes and journals that might contain passwords, 

encryption keys, e-mail addresses, Internet URLs (addresses), 

and indexes of storage media.

2. What to Look For

In most computer or data searches, what is really wanted 

is the data and not just the computer. Certainly you must find 

the computer and components to be able to search for the data, 

but the objective of the search is really the data.

In order to seize data, you must articulate probable cause 

that the data exists, and describe what that data is. You cannot 

simply request permission to seize ―all records‖ from an 

operating business unless there is probable cause to believe 

that the criminal activity under investigation pervades the 

entire business. Instead, you must include limiting phrases in 

the description of the files that can modify and limit the ―all 

records‖ search to that for which probable cause exists. For 

example, you may specify the crime under investigation, the 

target of the investigation if known, and the time frame of the 

records involved. In addition, instead of just saying ―all records 

showing bank transactions between x and y,‖ agents should say 

―all records in any form ...‖ to ensure the affidavit and warrant 

includes not only paper, but electronic records as well. Other 

suggested computer search warrant language is in the 

Additional Resources Section of this Handbook.

On occasion seizing only the actual computers – and not 

the data - is the purpose of the search. Such may be the case 
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when searching for stolen computers (contraband or fruits of a 

crime) or a computer used in the commission of a crime 

(instrumentalities) such as when a computer was used to 

prepare a letter or spreadsheet or to send an e-mail. ―Hardware 

only‖ searches are uncommon because a computer involved in a 

crime was probably used to create, receive, transmit, or 

otherwise manipulate data. In such a case, not only is seizing of 

the computer important, but searching the data is as well.

C. Justifying Off-Site Searches

The most significant difference between traditional and 

computer searches is that in computer searches, you need to 

describe in the affidavit the need to remove computers from the 

location listed in the warrant and search them at a different 

location. This requirement exists because seizing a computer 

can effectively close down a business, disable a computer 

network, or deny citizens the ability to conduct daily activities. 

Judges will consider these factors in deciding whether to issue a 

search warrant.

In some instances, the desired data can be obtained at 

the location where the media or computer is found. When this is 

possible, the computer system and the peripheral devices do 

not have to be taken from the scene to be searched. As the use 

of computers and their sophistication increases, law 

enforcement has become less able to conduct safe and 

meaningful searches on scene and must resort to removing 

computers and media to be searched elsewhere. 

If it is necessary to remove computers, devices, or 

computer media off-site to be searched, you must articulate 

that need and the justification for it in the search warrant 

affidavit. Some of the justifications are:

Must search to determine media contents. You 

often cannot tell what storage media contains by 

looking at just the container; each container (hard 

drive, floppy disk, CD or other media) must be 

examined.
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Time required. It may take days or weeks to find 

the specific information described in the warrant 

because computer storage devices can contain 

extraordinary amounts of information. Searching 

on scene may be more intrusive because of the time 

officers would have to remain on the premises.

Labeling, intentional mislabeling, and hiding 

data. Even if you know specific information about 

the files you seek, the data may be mislabeled, 

encrypted, stored in hidden directories, or

embedded in ―slack space‖ that a simple file listing 

will not reveal. Images can be hidden in all manner 

of files, and it may take special skills and 

equipment to find it.

Availability of necessary tools. On-site tools may 

not be sophisticated enough to defeat security and 

encryption measures.

Proper environment. The lack of a controlled and 

clean environment to conduct the search.

Lack of On-Site Technical Expertise. Attempting 

to search files on-site may risk damaging the 

evidence itself in some cases. Off-site searches also 

may be necessary if there is reason to believe that 

the computer has been ―booby trapped‖ with a selfdestruct feature.

Preserving the Evidence. In an on-site search, 

the target or confederates could momentarily access 

the computer to delete or destroy data. This is 

especially true if the computer is attached to a 

network because a command to the computer to be 

searched might be sent from any computer on the 

network.
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Safety of the Officers and Preserving Law 

Enforcement Techniques and Methods. A 

lengthy search in the target‘s home or business 

may unnecessarily expose you to risk.

If removal of computers, devices and media has not been 

addressed in the affidavit, and it is determined that an off-site 

search is necessary, you should seize the items and not search 

them until a new search warrant has been obtained justifying 

the removal of the items.

D. Identifying the Need for Multiple Search Warrants

Increasingly, computer users choose to store their data 

on an Internet-connected computer (server) that can be located 

anywhere in the world. From a business efficiency viewpoint, 

this makes good sense as people can retrieve data no matter

where they are provided they can access the Internet. From a 

criminal‘s point of view, storing data on a server makes finding 

that data harder for law enforcement and permits the criminal 

to constantly move that data at will.

F.R.Cr.P. 41(a)3 states that a magistrate judge located in 

one judicial district may issue a search warrant for ―a search of 

property ... within the district,‖ or ―a search of property . . . 

outside the district if the property ... is within the district when 

the warrant is sought but might move outside the district before 

the warrant is executed.‖ If there is reason to believe that a 

network search will retrieve data (not stored e-mails as 

addressed below) that is stored in multiple locations, you must 

obtain a warrant in each affected district.

A different rule exists in the case of ―stored electronic 

communications.‖ Stored electronic communications are emails that are stored temporarily on the servers of companies 

(e.g. AOL, EarthLink, Yahoo, Hotmail) that provide e-mail 

 

3 This Rule can be found in its entirety in the companion book, Legal Division 

Reference Book, in the segment entitled ―Selected Federal Rules of Criminal 

Procedure.‖
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services where the storage is incidental to the transmission of 

the e-mail. For stored electronic communications, 18 U.S.C. § 

2703 eliminates the need to obtain multiple warrants. A 

nationwide warrant for stored e-mails can be issued ―using the 

procedures described in the Federal Rules of Criminal 

Procedure by a court with jurisdiction over the offense under 

investigation ... .‖

If a suspect in the Eastern District of Virginia had stored 

electronic communications on servers in California and Texas, a 

federal judge in the Eastern District of Virginia could issue a 

search warrant for the stored e-mails in California and Texas so 

long as the issuing judge had jurisdiction over the suspected 

offense.

Is a multiple-jurisdiction warrant required?

Stored Electronic Communications 

(e-mails) in the hands of Internet 

Service Providers

Data

Any judge in any district who has 

jurisdiction over the offense.

Such a warrant is valid in any district 

where the stored emails are kept.

From a judge in the district 

where the data is located.

A separate warrant is 

required for each district.

VI. Special Considerations in Executing a Warrant to 

Search and/or Seize Computers

A. Technical Assistance During Execution of a Search 

Warrant

Not only is a computer forensics expert essential to 

planning the warrant, but the technical expert should also 

accompany the search team or, at a minimum, be available on 

immediate call. Title 18 U.S.C. § 3105 permits non-law 

enforcement officers to aid in the execution of a warrant. That 

statute provides:
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Searching and Seizing Computers

477

A search warrant may in all cases be served by any 

of the officers mentioned in its direction or by an 

officer authorized by law to serve such warrant, but 

by no other person, except in aid of the officer on 

his requiring it, he being present and acting in its 

execution.

Agents who violate 18 U.S.C. § 3105 can be subjected to 

civil liability. Not having a computer expert can jeopardize the 

admissibility of the evidence seized. If bringing in a computer 

forensics expert, name the person in the warrant or state that 

one will be needed to aid in the search. Except in all but the 

simplest case, consult a forensics expert in planning the search, 

obtaining the warrant, and executing the search.

B. Knock and Announce

You are required to comply with the ―knock and 

announce‖ statute set out in 18 U.S.C. § 3109 which states:

The officer may break open any outer or inner door 

or window of a house, or any part of a house, or 

anything therein, to execute a search warrant, if, 

after notice of his authority and purpose, he is 

refused admittance or when necessary to liberate 

himself or a person aiding him in the execution of 

the warrant.

This statute applies to searches of computers and data.

The rule is not absolute. In Richards v. Wisconsin, the 

Supreme Court held that you can dispense with the knock-andannounce requirement if they have:

a reasonable suspicion that knocking and 

announcing their presence, under the particular 

circumstances, would be dangerous or futile, or 

that it would inhibit the effective investigation of 

the crime by, for example, allowing the destruction 

of evidence.
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478

The time between when you announce your presence 

until the target opens the door may be sufficient time to destroy 

electronic evidence. Technically adept suspects may ―hot wire‖ 

their computers to use to quickly delete, erase, or obliterate 

evidence. In many cases, turning off the computer can destroy 

or alter evidence, especially the file the user was working on at 

the time of the shut down.

When you have reason to believe that knocking and 

announcing your presence would allow the destruction of 

evidence, would be dangerous, or would be futile, you should 

request a no-knock warrant from the magistrate judge. Even if 

a no-knock warrant is not obtained, the knock-and-announce 

statute does not prevent you from conducting a no-knock 

search, if, upon arrival at the search location, you develop 

reasonable suspicion that evidence will be destroyed. In

Richards, the Supreme Court made clear that ―the 

reasonableness of the officers‘ decision [to dispense with the 

knock-and-announce rule] . . . must be evaluated as of the time 

they entered‖ the area to be searched. Accordingly, you may 

exercise independent judgment and decide to conduct a noknock search when executing the search, even if you do not 

have a no-knock warrant.

For example, if while approaching a residence with a 

warrant to search for data, you develop reasonable suspicion 

that their presence has been detected and that persons inside

will destroy (delete) the data, such facts may excuse compliance 

with the knock and announce statute.

C. Time Frames Governing Retention of Seized 

Computers

The forensic examination of seized computers can take 

months to complete because computers can store enormous 

amounts of data. Neither Federal Rule of Criminal Procedure 41 

nor the Fourth Amendment imposes any specific limitation on 

the time period for the forensic examination. Ordinarily, you 

may retain the seized computer and examine its contents in a 

careful and deliberate manner without legal restrictions, subject 
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479

only to Rule 41(g)‘s provision that a ―person aggrieved‖ by the 

seizure of property may bring a motion for the return of the 

property.

Unfortunately, a few magistrate judges have refused to 

sign search warrants authorizing the seizure of computers 

unless the government conducts the forensic examination in a 

short period of time - in one case, as short as seven days. 

Other magistrates have suggested that Rule 41‘s requirement 

that you execute a ―search‖ within 10 days of obtaining the 

warrant might apply to the forensic analysis of the computer as 

well as the initial search and seizure. While the law does not 

expressly authorize magistrate judges to issue warrants that 

impose time limits on law enforcement‘s examination of seized 

evidence, you must be prepared to provide the information -

and justification - if the magistrate judge requires.

VII. Special Issues Involving Authentication of 

Information Contained on Computers

Refer to the Courtroom Evidence Handbook Chapter Four

that has a section specifically addressing this issue.
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NOTES
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5th and 6th Amendments

481

Chapter Thirteen

The Fifth and Sixth Amendments

I. INTRODUCTION.................................................................482

II. VOLUNTARY STATEMENTS ..................................................483

A. Voluntariness.................................................................... 483

B. Interrogations ................................................................... 483

C. Involuntary Confessions.................................................... 484

D. Incriminating Statements.................................................. 485

III. MIRANDA WARNINGS .........................................................486

A. Generally .......................................................................... 486

B. When Required ................................................................. 487

1. Known Law Enforcement Officer .................................. 487

2. Interrogation................................................................ 487

3. Custody ....................................................................... 488

IV. VALID MIRANDA WAIVER....................................................491

A. Generally .......................................................................... 491

1. Voluntary..................................................................... 491

2. Intelligent and Knowing ............................................... 491

3. Affirmative Waiver........................................................ 492

B. Form of Waiver.................................................................. 492

C. Stale Warnings.................................................................. 493

D. Correcting Miranda Violations........................................... 493

1. Unintentional Violations .............................................. 493

2. Intentional Violations................................................... 494

E. Exceptions ........................................................................ 494

1. Public Safety................................................................ 494

2. Routine Booking Questions.......................................... 494

V. INVOCATION OF MIRANDA RIGHTS .......................................495

A. Generally .......................................................................... 495

1. Right to Silence............................................................ 495

2. Right to Counsel .......................................................... 496

B. Not Offense Specific .......................................................... 496

C. Subject Re-initiates Contact.............................................. 497

D. Ambiguous Requests......................................................... 497

VI. NON-CUSTODIAL INTERROGATIONS ......................................498

A. Subpoenas to Testify......................................................... 498

B. Immunity .......................................................................... 499

1. Use Immunity .............................................................. 499

2. Transactional Immunity............................................... 499
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5th and 6th Amendments

482

C. No Right to Commit Perjury .............................................. 500

D. Documents Pursuant to Subpoenas.................................. 500

E. ―Collective Entities‖ ........................................................... 500

F. Third Parties ..................................................................... 500

G. Internal Government Investigations .................................. 501

H. Deportation Proceedings and Foreign Prosecutions ........... 501

VII. SIXTH AMENDMENT COUNSEL .............................................501

A. Generally .......................................................................... 502

B. Critical Stages................................................................... 502

1. Interrogation................................................................ 502

2. Line-ups ...................................................................... 502

C. Attachment....................................................................... 503

D. Offense Specific................................................................. 503

E. Waiver and Invocation....................................................... 504

1. Waiver ......................................................................... 504

2. Undercover Agents-Informants .................................... 504

3. Invoking the Right ....................................................... 505

F. The McDade Amendment .................................................. 505

VIII. DUE PROCESS AND IDENTIFICATION PROCEDURES ..................506

A. Generally .......................................................................... 506

B. Types of Identification Procedures..................................... 507

1. Line-ups ...................................................................... 507

2. Photo Arrays-Displays.................................................. 507

3. Show-ups .................................................................... 508

*****

I. Introduction

Police questioning often yields critical evidence for the 

prosecution of criminals. It is important that officers abide by 

Constitutional standards so that a defendant‘s statements will 

be admissible at trial. Whether it is a full confession, or a 

simple admission to specific facts, certain rules may apply that

must be followed to ensure the statements can be used as 

evidence.
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5th and 6th Amendments

483

II. Voluntary Statements 

A. Voluntariness

The Fifth Amendment states that no person ―shall be 

compelled in any criminal case to be a witness against himself.‖ 

The confessions and admissions of a suspect must be freely and 

voluntarily given. It must not come by any sort of threats or 

violence. It also cannot be obtained by any direct or implied 

promises, such as for special treatment or a reduced sentence. 

A person must not be compelled to incriminate himself. A 

statement can be suppressed if a court determines it is 

involuntary.

This voluntariness requirement comes from the 

Constitution‘s rule against compelled self-incrimination, as well 

as notions of due process. The issue is ―whether a defendant‘s 

will was overborne‖ by the circumstances that led up to the 

statement. If a suspect‘s confession is not voluntarily madethat is, not the product of his free choice- it cannot be used 

against him.

The analysis of a statement takes into consideration the 

―totality of all the surrounding circumstances‖- the situation 

under which it was made. Extreme examples of Constitutional 

violations that led to involuntary statements include a

confession that was obtained as a result of a brutal beating, or 

one obtained after a police physician gave the suspect a drug 

with truth-serum properties.

B. Interrogations

Courts look closely at interrogations to ensure the 

voluntariness of statements. The court examines the factual 

circumstances surrounding a confession, making it important 

to document all relevant factors. Factors that can impact the 

voluntariness of a statement include the suspect‘s age, 

education, and intelligence; the length of detention; repeated 

and prolonged questioning; impairment by drugs or alcohol;

psychological problems; current physical condition; experience 
_______________

5th and 6th Amendments

484

with the criminal justice system; and the failure to advise of

Constitutional rights.

The Supreme Court has stated that ―coercive police 

activity‖ must be present in order to find that a confession is 

involuntary. Without some coercion by the government, there is 

no Constitutional issue. The Fifth Amendment does not apply 

to pressure or coercion by private (non-government) actors.

Acceptable law enforcement interrogation practices can

include: promising a suspect that his cooperation will be 

brought to the attention of the prosecutor, confronting a 

suspect with evidence of his guilt, or encouraging him to tell the 

truth through emotional appeals. Truthful comments are 

acceptable, such as letting the defendant know the potential jail 

time he faces if convicted. While it is important not to state that 

prosecutors or judges will, in fact, be more lenient, officers can 

tell a suspect that his cooperation will be shared with those that 

can influence his fate.

Trickery and deception may be used during an 

interrogation as long as a suspect‘s will is not overborne by 

such tactics. Telling the suspect his prints are on the murder 

weapon, even when they are not, is permitted (but be aware of 

the suspect‘s mental capacity- those who function below normal 

levels may be too easily influenced by authority figures). In 

Frazier v. Cupp1 the officer questioning the defendant told him, 

falsely, that his accomplice had confessed. The defendant then 

gave a full confession. The police misrepresentation did not 

make the defendant‘s confession involuntary.

C. Involuntary Confessions

Trickery and deception may be permissible, but can go 

too far, especially when combined with other questionable

interrogation tactics. In Spano v. N.Y., a suspect in a killing 

was a foreign-born man, age 25, with no previous criminal 

 

1 Cases named in this chapter without a case cite are briefed in the 

companion book, Legal Division Reference Book.
_______________

5th and 6th Amendments

485

history or experience with official interrogation. He had only six 

months of high school education and a history of emotional 

instability. The defendant was questioned by officials for nearly 

eight straight hours before he confessed. The defendant 

repeatedly refused to answer questions. During the 

interrogation, the police used a ―childhood friend‖ of the 

defendant who had become a police officer. This officer told the 

suspect that the situation had gotten the officer in trouble and 

that his job was in jeopardy. He played up the terrible effect 

this would have on the officer‘s family. At almost sunrise, 

police obtained the final pieces of the defendant‘s confession.

The Court held that the confession was involuntary. They 

determined that it was obtained in violation of the suspect‘s 

rights, because his will was overborne by official pressure, 

fatigue, and sympathy created through deception.

More obvious examples of involuntary confessions include 

public employees threatened with losing their jobs if they do not 

cooperate and make a statement. In another case, a woman 

was advised that she would have her kids taken from her if she 

did not confess. Such methods of gaining confessions are the 

very thing the courts have found to be in violation of the Fifth 

Amendment.

Useful methods of avoiding challenges to an interrogation 

might include giving significant breaks during longer 

questioning. It may be good to delay interviews of highly 

intoxicated individuals. With juveniles, or the mentally 

impaired, more time might be spent explaining the Miranda 

rights. It might also be wise to go a little easier on leading 

questions when dealing with such suspects.

D. Incriminating Statements

The protections of the self-incrimination clause apply only 

to testimonial evidence that may incriminate the suspect. This 

includes words and gestures that convey information that could 

be used against the individual in a criminal case. If the suspect 

is asked, ―Where are your narcotics,‖ and he then points at his 
_______________

5th and 6th Amendments

486

backpack, that would be considered testimonial. If the 

response was determined to be involuntary, it would be 

suppressed just like a verbal statement would. Of course, if the 

answer to a question would not incriminate the speaker, then 

the privilege against self-incrimination does not apply. A mere 

witness to a crime can be required to answer questions posed 

by a grand jury, for example.

Non-testimonial evidence is not covered by this clause, 

including voice samples and hand-writing samples. Because 

they do not convey information about the case, and are only 

used for identification purposes, they are not testimonial.

III. Fifth Amendment Miranda Warnings

A. Generally

The Supreme Court created a rule specifically for custody 

situations because of the additional pressures that a suspect 

may face to incriminate himself. In Miranda v. Arizona the 

Court said that statements from custodial interrogation of a

defendant cannot be used at trial unless police protect his 

rights by giving certain warnings. Failure to follow this 

―procedural safeguard,‖ even for statements that are otherwise 

voluntary, can lead to suppression. Therefore, prior to 

questioning a defendant in custody must be told the following:

He has the right to remain silent;

That any statement he does make may be used as 

evidence against him;

That he has a right to consult with an attorney and 

to have the attorney present during questioning; 

and,

That if he cannot afford an attorney, one will be 

appointed to represent him prior to questioning.

After the warnings are given, an individual may waive 
_______________

5th and 6th Amendments

487

these rights and agree to answer questions or make a 

statement, if he does so voluntarily, knowingly and intelligently.

The Court‘s concern was that the potential coercion of a 

custodial interrogation might lead to involuntary statements. In 

a custodial interrogation, the police have the capacity to 

dominate the scene to such an extent that the risks of coercion 

and intimidation are unreasonably high. Therefore, the 

Miranda Court created these four warnings to protect the rights 

of the suspect.

B. Miranda Warnings – When Required

Miranda applies only when there is both custody and 

interrogation by known law enforcement authorities. The 

combination of these things creates the police-dominated 

atmosphere that concerned the Supreme Court. Should one of 

these factors be absent, however, then the situation is not one 

that requires Miranda warnings.

1. Known Law Enforcement Officer

Miranda only applies to questioning by known officers (as 

perceived by the suspect), whether in or out of uniform. Unlike 

a typical police interview, though, questions by undercover 

officers do not require Miranda warnings. In Illinois v. Perkins

an undercover law enforcement officer posing as an inmate was 

not required to give Miranda warnings to an incarcerated 

suspect before asking questions that could bring an 

incriminating answer. Without a known officer present, there is 

not that same ―police-dominated atmosphere‖ that could compel 

a response.

2. Interrogation

Interrogation is the act of asking investigative types of 

questions where the answer could incriminate the suspect. It 

does not include such things as requesting consent to search a 

person or car, as these seek only permission and not 

information that could be used against the suspect. 
_______________

5th and 6th Amendments

488

Interrogation under the Miranda rule includes not only actual 

investigative questioning, but also any functional equivalent of 

questioning. In Rhode Island v. Innis the Supreme Court said 

that Miranda applies whenever a person in custody is subjected 

to interrogation, i.e., either express questioning or its functional 

equivalent. The functional equivalent of interrogation means 

words or actions by law enforcement that are designed to bring 

an incriminating response from the suspect. For example, 

police engaging in a lengthy monologue in the presence of an incustody suspect might be considered an interrogation.

Spontaneous or volunteered statements are not 

considered ―interrogation‖ for Miranda purposes. For example, 

a defendant is arrested for a minor crime and during the ride to 

the police station blurts out, "I stabbed her." The defendant is 

voluntarily making a statement without being questioned by the 

police. Therefore, Miranda warnings are not required. In some 

cases, Miranda warnings were not required if police asked a

follow-up question to clarify the spontaneous statement. For 

example, the officer then asks, "Who?" and the suspect 

responds, "Cathy." These statements may be admissible 

against the defendant, but the better practice is to give the

Miranda warnings before asking any investigative question. 

Not all communications with a suspect are affected by 

Miranda. Dialogue with a defendant during physical sobriety 

tests, for example, is not interrogation (the officer is not seeking 

testimony from the individual about his crimes). Likewise, 

asking a suspect for consent to search, or requesting personal 

information (name, address, etc.) when booking him, are not 

considered the sort of interrogation that requires Miranda

warnings. 

3. Custody

Custody requiring Miranda warnings exists when law 

enforcement officers arrest or otherwise deprive a person of his 

freedom of action in a significant way. Courts will consider a 

suspect to be ―in custody‖ whenever there is a restraint on 
_______________

5th and 6th Amendments

489

freedom of movement to the degree associated with a formal 

arrest, even when there is no arrest. California v. Beheler. For 

example, Miranda warnings were required when police officers 

arrived at a suspect‘s home at 4:00 a.m., entered his bedroom, 

and began questioning him. In such circumstances, a suspect 

might easily believe himself to be under arrest.

While both ―seizure‖ in the Fourth Amendment sense and 

―custody‖ in the Miranda sense involve the restraint of a 

person‘s freedom to walk away from the police, the critical 

difference is that Miranda ―custody‖ arises only if the restraint 

on freedom is to the degree associated with formal arrest. A 

Fourth Amendment seizure does not necessarily render a 

person ―in custody‖ for purposes of Fifth Amendment Miranda. 

This is most evident in a Terry stop. Generally, officers are not 

required to read Miranda to question a suspect during an 

investigative detention, even though he is not free to leave.

The decision on whether to read Miranda when no formal 

arrest has occurred is not always clear, but usually it is not 

required. If the officer creates a situation that would appear 

truly arrest-like to a reasonable person, though, he should give 

Miranda warnings, or risk losing the statement.

In situations that verge on being custodial, courts are less 

likely to require Miranda if any of the following are true: the 

suspect was informed that he is not under arrest; the suspect 

was informed that he is free to leave at anytime; and there was 

no physical restraint that could cause a reasonable person to 

perceive that he is under arrest. The following situations have 

generally been held not to be custody for Miranda purposes:

Traffic Stops. Routine traffic stops are not custodial 

and therefore do not require Miranda warnings.

Terry Investigative Stops. Generally, like traffic 

stops, Terry stops do not require warnings because 

they are not considered to be ―custody.‖

Search Warrants. In general, detaining the 
_______________

5th and 6th Amendments

490

occupant of a home during the execution of a 

search warrant is not considered ―custody‖ for 

Miranda purposes. Still, if agents closely guard an 

individual during the operation, a court may 

consider it custody, even if it is a reasonable 

temporary seizure under the Fourth Amendment.

Police Station Questioning. Non-custodial 

questioning may take place in a police station even 

when the questioned person is one whom the police 

suspect. In Oregon v. Mathiason, Miranda

warnings were not required because the defendant 

was not subjected to ―custodial interrogation‖ when 

he voluntarily came to the police station and gave a 

statement. The defendant was immediately 

informed that he was not under arrest. A noncustodial situation is not converted to a Miranda

situation simply because the questioning takes 

place in a ―coercive environment.‖

Intent to Arrest. An unexpressed or unarticulated 

future intent to arrest is not Miranda custody. The 

relevant inquiry is how a reasonable person in the 

suspect‘s position would have understood his 

situation. In Stansbury v. California the Supreme 

Court said that an officer‘s undisclosed belief that 

the person he interrogates is a suspect is irrelevant 

to whether he is in custody. The need to give 

Miranda warnings arises only when there is a 

formal arrest or restraint on freedom of movement 

to the degree associated with a formal arrest.

Incarcerated Persons. Individuals who are serving 

prison sentences are not necessarily in ―custody‖ 

for Miranda purposes. Some type of additional 

restraint must be imposed on an inmate to 

transform the interview into a ―custodial 

interrogation.‖

The Miranda rules apply so long as the suspect remains 
_______________

5th and 6th Amendments

491

in custody. Once he is released (e.g., on personal bond after an 

initial appearance), there is no longer custody, and, therefore, 

no Fifth Amendment Miranda situation. There may, however, 

be Sixth Amendment concerns that could affect interrogation, 

as addressed below.

IV. Identifying a Valid Miranda Waiver

A. Generally

Once an individual taken into custody has been given the 

proper Miranda warnings, there is one more requirement before 

any interrogation. Prior to questioning, the suspect must make 

a voluntary, knowing and intelligent waiver of his rights under 

Miranda.

1. Voluntary

For a waiver to be valid, a suspect must voluntarily give 

up his Miranda rights. It must be the product of a free and 

deliberate choice, without any intimidation, coercion, or 

deception. Just as a suspect should not be pushed into making 

a confession, he must also not be pushed into waiving the 

rights provided by Miranda. The waiver must be voluntary, and 

any statements after the waiver must also be voluntary (getting 

a valid waiver, by itself, does not guarantee the voluntariness of 

a statement).

2. Intelligent and Knowing

The waiver must also be intelligent and knowing. It 

should be made with a full awareness of both the right being 

waived and the consequences of waiving it. For the waiver to be 

considered knowing, a suspect should be given the complete 

Miranda warnings, start to finish.

Failure to fully give Miranda warnings (and obtain a 

waiver) will make any statements obtained from custodial 

interrogation inadmissible at trial. Therefore, officers should

advise suspects of their Miranda warnings by reading the 
_______________

5th and 6th Amendments

492

warnings directly from a Miranda rights card or agency form, if 

possible, to ensure full compliance.

When deciding if a waiver is intelligent, the courts will 

consider the suspect‘s education, understanding, age, 

familiarity with the criminal justice system, physical and mental 

condition, drug or alcohol problems, and language barriers.

Trickery or deception should never be used when advising 

a suspect of the Miranda warnings or when obtaining a Miranda

rights waiver. Any evidence that the defendant was threatened, 

tricked, or pushed into a waiver will cause the courts to find the

privilege was not voluntarily waived. Deception can still be 

employed, however, after a valid waiver, as a tactic for obtaining 

statements.

3. Affirmative Waiver

Courts will look to see if the suspect made an affirmative 

waiver of his Miranda rights. Some clear evidence of intent to 

waive must be given. The Miranda case sets forth the rule that 

a suspect must both waive his rights and agree to answer 

questions or make a statement. Silence will cause the courts to 

presume there is no waiver, unless there is strong indication of 

intent to waive based on the suspect‘s conduct.

B. Form of Waiver

Miranda does not require police to advise a suspect that 

he can stop answering questions at any time, or remind him of 

that fact after a waiver is obtained. It is also not required to tell

a suspect what the topics of the interrogation will be. The 

warnings already inform the suspect that he can refuse to 

answer any question which might incriminate him.

If a suspect waives the Miranda rights orally, but refuses

to sign the waiver form, it is still a valid waiver. A suspect could

also agree to give only an oral statement, but not a written 

statement. He can even waive only as to certain questions, but 
_______________

5th and 6th Amendments

493

not others.

C. Stale Warnings

As noted above, once rights are waived, there is no need 

to remind the defendant of those rights. The mere passage of 

time does not make a Miranda warning invalid. Some factors 

courts will consider, however, in determining whether a time 

lapse made Miranda warnings too ―stale‖ to be valid are: (1) the 

amount of time between the last Miranda warnings and the 

suspect‘s statement; (2) interruptions in the continuity of the 

interrogation; (3) whether there was a change of location 

between the place where the last Miranda warnings were given 

and the place where the suspect‘s statement was made; (4) 

whether the same officer who gave the warnings also conducted 

the interrogation resulting in the suspect‘s statement; and (5) 

whether the statement from a later interrogation differed 

significantly from other statements which had been made 

directly after Miranda warnings.

When there is a time-lapse during the interrogation 

process, it is usually good procedure to re-advise a suspect of 

the Miranda rights and again obtain a waiver prior to resuming 

interrogation. If not, at the very least, the officer should reconfirm that the suspect still understands his rights and wishes 

to continue with the interrogation.

D. Correcting Miranda Violations

1. Unintentional Violations

What happens in a situation where a suspect makes a 

statement after an unintentional violation of Miranda, such as 

when an officer simply forgets to read the warnings? In Oregon

v. Elstad the Court said that giving Miranda warnings to a 

suspect who previously gave an unwarned (but voluntary) 

statement is enough to overcome the problem. Therefore, if 

more statements are made or repeated after the Miranda

warnings, they will be admissible at trial. In general, the courts 

will prevent just the use of any statements given before the 
_______________

5th and 6th Amendments

494

warnings.

2. Intentional Violations

In contrast, in Missouri v. Seibert the Court held that 

when officers intentionally question without Miranda warnings 

as a tactic to gain a confession, it effectively threatens 

Miranda‘s purpose. Here, there was an unwarned confession, 

followed by a statement made after Miranda warnings. Neither 

one could be used against the defendant because of the officers‘ 

efforts to get around the rule.

E. Exceptions to Miranda

1. Public Safety Exception

When an officer asks a suspect in custody a question 

prompted by a concern for public safety, and not to obtain an 

incriminating response, Miranda warnings are not required. 

This principle is well-illustrated in New York v. Quarles.

Officers learned that a suspect who was believed to be armed 

ran into a grocery store. The suspect was arrested, and it was 

discovered he was wearing an empty holster. The officer asked 

where the gun was, and the suspect revealed the location. His 

statement was admitted into evidence even though it was not 

preceded by Miranda warnings. It was only after securing the 

loaded revolver and giving the Miranda warnings that the officer 

continued with investigatory questions about the ownership 

and place of purchase of the gun.

The ―public safety‖ exception has been extended to cover 

officers‘ questions necessary to secure their own safety. A preMiranda question, ―Do you have any guns or sharp objects on 

you?‖ is permissible under the public safety exception. Courts

have even applied the ―public safety‖ exception to situations 

where a suspect has received his Miranda warnings and 

invoked his right to counsel.

2. Routine Booking Questions
_______________

5th and 6th Amendments

495

The ―routine booking question‖ exception to Miranda

allows questions to secure biographical data necessary to 

complete booking or pretrial services. This includes questions 

related to physical appearance (e.g., actual hair color), personal 

history, and place of residence. The questions are for recordkeeping purposes only and not designed to obtain incriminating 

statements. Pennsylvania v. Muniz.

V. After Miranda Rights are Invoked

A. Generally

There are two separate rights under Miranda that a 

defendant can assert when subjected to custodial interrogation. 

A suspect can assert the right to remain silent by saying that he 

does not want to talk, or a suspect can assert the right to 

counsel by saying that he wants an attorney.

If a defendant asserts either right, the general rule is that 

the questioning must stop. However, Miranda does not require 

you to inform a suspect that an attorney is trying to contact 

him, and you do not have to allow any access to the attorney 

during processing.

Sometimes, a suspect may attempt to invoke his rights 

under Miranda before he even faces custodial interrogation. 

Trying to invoke these rights in anticipation of some future 

custodial interrogation does not work. Unless the interrogation 

is fairly imminent, courts will generally not consider the 

suspect‘s rights to be invoked, so Miranda could later be read 

and a waiver obtained.

Assuming the defendant did properly invoke, the 

procedure to follow differs depending on the right asserted. If 

the defendant asserts both rights, the procedure regarding the 

right to counsel will take precedence.

1. Right to Silence
_______________

5th and 6th Amendments

496

If a suspect asserts the right to silence, questioning must 

stop, but officers may attempt to re-approach the suspect after 

a ―cooling off‖ period. In Michigan v. Mosley police gave full 

Miranda warnings to the defendant and began to question him. 

When the defendant asserted his right to silence, the police 

suspended the questioning for more than two hours. They then 

re-approached the defendant to begin a new line of questioning. 

The defendant was given Miranda warnings again, and he 

waived his rights before this second interrogation started. The 

Court found this to be an acceptable practice, and the 

statements could be used at trial. Subsequent interrogations 

after waiting an appropriate time can be about the same crime 

or a different crime.

2. Right to Counsel

When a suspect invokes his right to an attorney, he 

cannot be subjected to further interrogation unless he himself 

re-initiates the contact, or counsel is actually present (such 

meetings should be coordinated through the prosecutor). In 

Edwards v. Arizona the defendant asserted his right to counsel, 

but the police returned the next morning to confront him. After 

being read Miranda again, the defendant made incriminating 

statements. Since the defendant exercised his right to have 

counsel the day before, his waiver of that right the next day was 

not valid. If an accused indicates that he wishes to have an 

attorney, the interrogation must cease. Police may not try to 

approach and question him again.

B. Not Offense Specific

When a suspect invokes the right to counsel or silence, 

interrogation about any other crimes must stop, too. Neither 

the same nor different law enforcement authorities may 

question the suspect about the same or a different offense. In 

Arizona v. Roberson the Court said it did not matter that the 

officer who conducted a second interrogation was not aware

that the suspect had already made a request for counsel. 
_______________

5th and 6th Amendments

497

Assertion of the right to counsel applies to any and all crimes

and to questions by any known law enforcement officer.

C. Suspect Re-initiates Contact

Interrogation may be resumed after a suspect asserts his 

right to counsel only when the suspect re-initiates the 

communication. While the officer cannot re-approach the 

suspect, questioning can begin if it is the subject that 

approaches the officer. Remember that a valid waiver must be 

obtained prior to any interrogation.

In Oregon v. Bradshaw a defendant‘s statements were 

properly obtained when the suspect ―initiated‖ further 

conversation about his case. After already asserting his right to 

counsel, he later asked an officer, ―Well, what is going to 

happen to me now?‖ Officers then read him Miranda warnings, 

and he made a valid waiver of his rights.

Inquiries or statements by a suspect that simply relate to 

routine incidents of the custodial relationship will not ―initiate‖ 

a conversation. For example, asking for a glass of water or a 

cigarette are not inquiries or statements about the case.

Likewise, once a defendant asserts his right to silence, he 

may be questioned if he re-initiates contact with the police. For 

example, a defendant in FBI custody explicitly told the agents 

that he did not want to talk. His request was honored. The 

defendant then initiated a discussion with the agents by 

inquiring about the arrest of other persons. The agents 

informed the defendant that his co-defendant was under arrest.

At that point the defendant then said, ―Let‘s talk.‖ The agents 

then resumed questioning the defendant. The Court held that 

the defendant voluntarily and knowingly waived his right to 

silence.

D. Ambiguous Requests

First and foremost, for statements from custodial 

interrogation to be admissible, there must be a clear waiver of 

the Miranda rights. An unclear request for an attorney made at 
_______________

5th and 6th Amendments

498

the time warnings are given cannot be seen as a waiver. 

However, if a suspect seems to change his mind about wanting

an attorney after a valid waiver, his desire to have counsel must 

be clear enough that a reasonable police officer would recognize 

it as an actual request. If the statement is not clear and 

definite, the officer is not required to stop questioning the 

suspect. For example, in Davis v. United States the Supreme 

Court said that the statement, ―maybe I should talk to a 

lawyer,‖ was ambiguous and not an actual request for an 

attorney.

When a suspect makes an ambiguous request, it is good 

police practice to clarify whether or not the suspect actually 

wants an attorney. There is no rule, however, requiring

clarifying questions to be asked. Therefore, officers do not have 

to stop questioning the suspect.

VI. Self-Incrimination Outside of Custodial Interrogation

A person may assert the Fifth Amendment privilege 

against compelled self-incrimination in any proceeding, civil or 

criminal, administrative or judicial, investigatory or 

adjudicatory. When asserted, the privilege protects against any 

disclosures that the individual reasonably believes could be 

used against him in a criminal prosecution, or that could lead 

to other evidence that might be so used. Despite the 

applicability of the privilege against self-incrimination to such 

situations, no Miranda warnings need be given, unless there is 

custody involved.

A. Subpoenas to Testify

When a witness is needed to appear at trial, Grand Jury, 

or other proceeding, he may be issued a subpoena. Before 

being questioned, the witness does not have to be given 

Miranda warnings because he is not in custody. If the witness 

believes he has a Fifth Amendment privilege and believes he

should not be ordered to testify, he may ask a court to quash 

(cancel) the subpoena. He may also claim the privilege based 
_______________

5th and 6th Amendments

499

on individual questions asked of him at the proceeding. If it is 

determined he has no Fifth Amendment privilege, the witness 

will have to testify under threat of contempt.

B. Immunity

Remember that the Fifth Amendment provides that no 

person can be compelled to be a witness against themselves in 

a criminal case. If the possibility of a criminal prosecution 

using that testimony is removed, then the Fifth Amendment 

does not apply.

Immunity is a government tool for securing testimony 

that otherwise would be protected by the Fifth Amendment. If 

immunity is granted, the witness can then be compelled to 

answer, or be held in contempt if he refuses, even though the 

testimony would implicate the witness in criminal activity.

There are two kinds of immunity.

1. Use Immunity

―Use Immunity‖ prohibits the government from using any 

compelled testimony, as well as evidence derived directly or 

indirectly from that testimony, against the immunized witness. 

However, a grant of ―use immunity‖ does not prohibit the 

government from prosecuting the witness. As its name implies, 

use immunity only means the government cannot use the 

compelled testimony against the person who was compelled to 

give it.

If the government decides to prosecute a person who 

testified under a grant of ―use immunity,‖ the prosecution must 

show that the evidence it proposes to use is derived from a 

source independent of the defendant‘s compelled testimony. 

For example, the government may use evidence it obtained 

against the defendant before the defendant testified under 

immunity.

2. Transactional Immunity
_______________

5th and 6th Amendments

500

―Transactional immunity‖ gives the witness full immunity 

from prosecution for the crime involved. As such, it provides 

the witness considerably broader protection than does the Fifth 

Amendment privilege.

C. No Right to Commit Perjury

Even when a witness is granted immunity, that witness 

cannot commit perjury in the course of his testimony. If the 

witness commits perjury, he can be prosecuted for it.

D. Documents Pursuant to Subpoenas

In general, the contents of records are not privileged. 

Although the contents may not be privileged, the act of 

producing the documents may be. Compliance with a subpoena 

can be seen as an admission the papers exist and are controlled 

by the holder. It also indicates the holder‘s belief that the 

papers are those described in the subpoena. These implications 

can be both ―testimonial‖ and ―incriminating‖ for purposes of 

applying the Fifth Amendment. Therefore, the act of producing 

documents can be privileged and cannot be compelled without a 

statutory grant of use immunity. United States v. Doe (Doe I).

E. ―Collective Entities‖

The Fifth Amendment privilege applies only to natural 

individuals and protects only private papers. Corporations and 

other collective entities are not protected by the Fifth 

Amendment. Therefore, the contents of subpoenaed business 

documents are not privileged under the Fifth Amendment.

A record custodian‘s act is legally the act of the 

corporation, not the individual. A custodian of corporate 

records may not resist a subpoena on the ground that the act of 

production would incriminate him, but the Government cannot 

use the fact that the custodian provided the documents as 

evidence against the custodian.

F. Third Parties
_______________

5th and 6th Amendments

501

One does not have a Fifth Amendment privilege to prevent 

the production of business and tax records in the possession of 

another person, such as an accountant. Because the Fifth 

Amendment privilege is a personal one, it adheres to the 

person, not to information that may incriminate him. There is 

no Fifth Amendment privilege unless the person holding the 

records can show that he may tend to be incriminated by 

producing the documents.

G. Internal Government Investigations

The government cannot threaten to fire a government 

employee in order to obtain incriminating evidence, and then 

use that evidence against the employee to get a conviction. 

Likewise, a government employee cannot be terminated from 

government employment only for invoking and refusing to waive 

his Fifth Amendment privilege against self-incrimination. 

Garrity v. New Jersey.

However, the government can require a government 

employee to answer questions specifically, directly, and 

narrowly related to the performance of his official duties if the 

employer adequately informs the employee: (1) that the 

employee is subject to discharge for not answering; and (2) that 

the employee‘s answers and their fruits cannot be used against 

him in a criminal case. Kalkines v. United States.

H. Deportation Proceedings or Foreign Prosecutions

Given the civil character of a deportation proceeding, the 

risk that testimony might subject a person to deportation is not 

sufficient reason to assert the Fifth Amendment privilege.

However, if a person could demonstrate that any testimony he 

might give in a deportation investigation could be used in a 

domestic criminal proceeding, he would be entitled to invoke 

the privilege. Generally, the privilege cannot be invoked simply 

because the witness faces potential foreign prosecution, though.

VII. The Sixth Amendment Right to Counsel 
_______________

5th and 6th Amendments

502

A. Generally

The Sixth Amendment to the Constitution states that, 

―[i]n all criminal prosecutions, the accused shall enjoy the right 

to... have the Assistance of Counsel for his defence.‖ The 

purpose of the Sixth Amendment right to counsel is to ensure 

that anyone accused of a crime by the government will receive 

fair treatment in the judicial process and at trial. The 

opportunity for an accused to consult with and be represented 

by counsel when defending against a criminal charge is 

considered a basic requirement of fairness in our judicial 

process. It gives the defendant an opportunity to have defense 

counsel act as a buffer when forced to directly confront his 

skillful adversary– the government and its agents.

An individual‘s Sixth Amendment right to counsel 

attaches when the government has formally accused him with a 

crime, thereby initiating the adversarial process. It is not 

related just to custodial interrogation by known law 

enforcement officers, the way Miranda rights are under the Fifth 

Amendment. It applies to any ―critical stage‖ of his prosecution.

B. Critical Stages

1. Interrogation

Once the Sixth Amendment right to counsel has attached, 

the accused must be afforded the right to have counsel present 

during every ―critical stage‖ of the criminal proceedings. 

Critical stages include all court-related proceedings. More 

importantly for law enforcement officers, any interrogation,

custodial or not, is considered a critical stage. All attempts by 

law enforcement to elicit information from the defendant about 

the charged crime would be included. Because these are

Constitutional rights, courts may apply the exclusionary rule 

for any violations.

2. Line-ups
_______________

5th and 6th Amendments

503

Live identification procedures thrust the accused into a 

direct confrontation with his adversary. As a consequence, the 

courts consider line-ups (and probably show-ups) to be a 

critical stage in the proceedings.

Whenever the accused is placed in a line-up for 

identification in a charged offense, and the right to counsel has 

attached, the accused must be afforded the opportunity to have 

his counsel present during the line-up. Any such line-up that 

includes the accused must then be conducted with defense 

counsel present, unless the defendant waives that right. The 

validity of any waiver will be determined by the totality of the 

circumstances under which it was made. Violations of this

right can have an adverse affect on later in-court identifications 

by a witness.

Identification through a photo array including the 

accused does not involve a confrontation, and therefore is not 

considered a critical stage of the adversarial proceedings. The 

accused thus has no Sixth Amendment right to the presence of 

counsel when photo arrays are used.

C. Attachment

The protections of the Sixth Amendment right to counsel

are not available to suspects until they have been formally 

accused or charged by the government with a crime. In the 

federal judicial system, formal criminal charges are initiated 

against a defendant by one of the following means:

an Indictment returned by a Federal Grand Jury;

an Information filed by a Federal prosecutor; or

an Initial Appearance of the defendant after arrest.

Whenever the earliest of these events occurs in a case, the 

adversarial proceeding has begun, and the accused‘s right to 

have counsel present at all critical stages has then attached. 

D. Offense Specific
_______________

5th and 6th Amendments

504

In the prior sections, it was noted that Miranda rights are 

not offense specific; that is, they apply to any custodial 

interrogation by law enforcement, regardless of the offense for 

which the suspect is being held. By contrast, the Sixth 

Amendment right to counsel is offense specific. Because the 

Sixth Amendment right applies only when adversarial 

proceedings are initiated, the right attaches only as to the 

charged offenses. Still, when dealing with a subject in custody, 

the rules remain just the same. Read Miranda and get a waiver, 

and then the subject can be questioned. Stop and do not 

question further about any crimes if an attorney is requested, 

unless initiated by the subject. This is true whether or not the 

defendant has retained counsel. 

However, for an accused not in custody, Miranda must 

still be read, and a waiver obtained, to question about a charged 

offense (see below). But it would not need to be read to question 

with respect to any offenses not yet charged- even if they stem 

from the same criminal incident. There is, however, no bar to 

re-approaching a charged defendant not in custody, even if they 

have requested or retained counsel. Statements that are 

otherwise voluntary could still be used.

E. Waiver and Invocation

1. Waiver

Once the right to counsel has attached, the government 

may not attempt to elicit information from the accused without 

first advising him of his right to have counsel, and then 

obtaining a voluntary, intelligent waiver. Although Sixth 

Amendment rights differ somewhat from the Fifth Amendment 

Miranda rights, the Supreme Court held that the same 

warnings can be used to get a waiver of either of these rights. 

There is no requirement to inform the accused that he has been 

charged, or as to the nature of the charge.

2. Undercover Agents and Informants
_______________

5th and 6th Amendments

505

Unlike a Miranda situation, once the Sixth Amendment 

right has attached, the government can no longer use an 

undercover officer or confidential informant to question, or 

otherwise elicit information, from a defendant about the 

charged crime. This form of government questioning is still 

considered a critical stage, and it is not possible to obtain a 

proper waiver. However, covert agents who merely listen to the 

accused, without actively eliciting the information, or who 

discuss other crimes, do not violate the right. The undercover 

operative must be careful not to discuss the charged crime with 

the accused, because even absent any actual questions, it could 

be seen as an attempt to elicit information.

3. Invoking the Right

The Sixth Amendment does not prohibit an officer from 

interrogating a suspect, represented or not, about charged 

offenses, so long as the officer first advises the suspect of his 

Sixth Amendment right to have counsel present and the suspect

provides a voluntary waiver. Attempts to invoke Sixth 

Amendment rights in anticipation of future questioning are not 

valid. The defendant can only invoke when approached by 

officers intending to question him. If he invokes at that point, 

questioning must cease, unless initiated by the defendant.

F. The McDade Amendment

A federal statute, 18 U.S.C. § 530B, commonly referred to 

as the ―McDade Amendment‖, subjects federal prosecutors to 

the general ethical obligations of the members of the legal 

profession while in performance of their federal duties. Included 

in the common ethical rules that apply to attorneys are: (1) a 

―no contact rule‖ that bars communications by a lawyer with a 

person represented by another lawyer in a matter that concerns 

the representation, and (2) a rule that can hold a government 

attorney responsible for the actions of others (such as federal 

investigators) they direct, which would violate an ethical rule if 

done by the attorney. 
_______________

5th and 6th Amendments

506

As a result of the interplay of these rules, a prosecutor 

may be reluctant to make contact, or to direct federal agents to 

make contact, with any witness or suspect known to be 

represented by an attorney in the matter under investigation. 

When the ethical obligation applies, the prosecutor may insist 

that agents make the contact only if the witness/suspect‘s 

counsel is present or otherwise permits the contact. 

Violation of the ―no contact‖ ethical requirement could 

subject the prosecutor to discipline by state bar authorities -

even in situations when it was actually the investigator that 

made the contact. As non-attorneys, investigators cannot be 

subjected to such discipline themselves. Due to the concerns 

involved, however, investigators should consult with the 

prosecutor assigned to the case prior to making any 

investigative contacts with a party that is believed to be 

represented by an attorney.

VIII. Fifth Amendment Due Process and Identification 

Procedures

A. Generally

Eyewitness identification evidence, an important law 

enforcement tool, is affected by the Due Process Clause of the 

Fifth Amendment. Under the Due Process Clause, pretrial 

identification evidence can be suppressed if the court finds that 

the procedures used were so ―impermissibly suggestive as to 

give rise to a very substantial likelihood of irreparable mistaken 

identification.‖ If the line-up is impermissibly suggestive, 

officers will not be allowed to tell the jury which person the 

witness identified out of the line-up. The witness may not even 

be allowed to identify the accused as he sits in the courtroom if 

there is a genuine question about whether the witness‘ memory 

of his physical appearance comes from the suggestive line-up, 

or from the events of the actual crime.
_______________

5th and 6th Amendments

507

B. Types of Identification Procedures

Generally, there are three types of procedures used by law 

enforcement officers to determine if a witness or victim can 

identify the perpetrator of a crime:

Line-ups. The witness views a number of actual 

potential suspects in an attempt to identify the 

perpetrator of a crime.

Photo Displays/Arrays. The witness views a 

number of photographs of persons in an attempt to 

identify the perpetrator of a crime.

Show-Ups. The witness, in a direct one-on-one 

showing of an actual person, attempts to identify 

the perpetrator of a crime.

1. Line-ups

A defendant does not have a Fifth Amendment right to 

refuse to participate in a line-up, since it is ―non-testimonial‖ in 

nature. But a line-up can be unduly suggestive if the defendant 

matches a witness‘ description and the other line-up 

participants obviously do not (e.g., the defendant is 6‘0‖ tall, 

and the other participants are all 5‘6‖ or less). A line-up in 

which the suspect is the only participant wearing the distinctive 

clothing described by the victim substantially increases the 

dangers of misidentification. However, a line-up of ―clones‖ is 

not required.

2. Photo Arrays/Displays

To determine whether a photo display is impermissibly 

suggestive under the Fifth Amendment, a number of factors 

may be relevant, including the size of the array, the manner of 

its presentation by the officers, and the details of the 

photographs themselves.
_______________

5th and 6th Amendments

508

(a) Size of the Array

When a relatively low number of photographs are used in 

an array, minor differences such as background color can make 

a picture stand out, and can act to repeatedly draw a witness‘s 

eyes to that picture. Common sense dictates that slight 

irregularities are more likely to ―jump out‖ at a witness 

reviewing a single sheet of paper with only six photographs on 

it than at a witness reviewing a large mug book containing 

hundreds of photographs. The lower the number of 

photographs used in a photo array, the closer the array must be 

scrutinized for suggestive irregularities. Generally, using six 

photographs in an array has been upheld by the courts.

(b) Manner of Presentation

Improper presentation of photographs may sometimes 

cause witnesses to err in identifying criminals. Examples of 

presentations that may increase the risk of misidentification 

include (1) repetitive showing of suspect‘s photo; (2) 

emphasizing a photo; (3) displaying photos of several 

individuals, but where the suspect‘s image keeps repeating or is 

in some way emphasized; (4) indicating to a witness that police 

have other evidence that one of the persons pictured committed 

the crime; (5) telling a witness to assume the suspect is in the 

array; (6) using a suspect‘s photo that is a different color than 

the others in the array; (7) the details of the photographs 

themselves.

3. Show-ups

The practice of showing a suspect directly to a witness for 

the purpose of identification, and not as part of a line-up, has 

been widely condemned. Nevertheless, show-ups can be proper 

and not overly suggestive under certain circumstances.

Show-ups that occur shortly after a crime are 

permissible. Immediate show-ups are a reasonable way to 

further fair and effective law-enforcement as they allow 
_______________

5th and 6th Amendments

509

identification before the suspect has altered his appearance, 

while the witness‘ memory is fresh. This may help lead to the 

quick release of innocent persons. In some cases, such as 

where a victim is hospitalized, show-ups may be the only viable 

option, and courts have allowed this.
_______________

5th and 6th Amendments

510

NOTES
_______________

Use of Force – Legal Aspects

511

Chapter Fourteen

Use of Force - Legal Aspects

I. INTRODUCTION.................................................................512

A. Non-Deadly Force and Reasonableness ............................. 512

B. No ―Perfect Answer‖ when Using Force .............................. 513

C. Factors in Determining Excessive Force ............................ 513

D. Handcuffing and Pointing Weapons during Terry Stops .... 515

1. Handcuffs Not Automatically an Arrest....................... 515

2. Pointing a Weapon Not Automatically an Arrest........... 515

3. ―Officer Safety‖ as a Reason ......................................... 516

II. THE USE OF DEADLY FORCE...............................................516

A. Definitions ........................................................................ 516

1. Deadly Force................................................................ 516

2. Serious Physical Injury ................................................ 516

B. Use of Deadly Force - Objective Reasonableness ............... 517

C. Other Aspects of Objective Reasonableness....................... 519

1. Officer Need Not ―Fear For His Life‖.............................. 519

2. Warning Shots Are Not Explicitly Prohibited ................ 520

3. The Offense Can Be a Felony or Misdemeanor ............. 520

4. Verbal Warnings Are Not Always Required ................... 520

5. No Need to Exhaust All Lesser Forms of Force ............. 520

6. No Duty to Retreat....................................................... 520

D. Examples .......................................................................... 521

1. Unarmed, Handcuffed Suspect .................................... 521

2. Fleeing, Dangerous Subject Armed With a Knife .......... 522

3. Unarmed Robbery Suspect Who Reached Into His Coat 523

4. Suspect Attacks with a Magnetic Key Holder ............... 524

5. Unarmed, Fleeing Burglar............................................ 524

E. Agency Policy Restrictions................................................. 526

III. STRIKING INSTRUMENTS AND CHEMICAL SPRAYS....................526

A. Striking Instruments - Generally....................................... 526

B. The Rules Outlined in Graham Apply................................ 526

C. Gratuitous Blows .............................................................. 526

D. Examples .......................................................................... 527

1. Strikes Handcuffed Suspect with Nightstick ................ 527

2. Strikes Non-Resisting Suspect with Flashlight............. 528

3. Strikes Armed Robbery Arrestee with Flashlight .......... 528

4. Strikes Arrestee with Flashlight and Nightstick............ 529
_______________

Use of Force – Legal Aspects

512

E. Chemical Sprays - Generally ............................................. 530

1. When Chemical Sprays Are Excessive.......................... 530

2. When Chemical Sprays Are Reasonable ....................... 531

F. Examples .......................................................................... 532

1. Use of Chemical Spray Reasonable .............................. 532

2. Use of Chemical Spray Unreasonable........................... 535

IV. QUALIFIED IMMUNITY ........................................................536

A. Defining Qualified Immunity ............................................. 536

B. The Rationale Behind Qualified Immunity......................... 537

C. When Officers are Entitled to Qualified Immunity ............. 537

D. Not a ―Good Faith‖ Defense ............................................... 537

E. Analyzing Claims of Qualified Immunity............................ 538

1. Did a Constitutional Violation Occur?.......................... 538

2. Was the Right ―Clearly Established‖? ........................... 538

F. Reasonable Mistakes......................................................... 539

G. Examples .......................................................................... 539

1. Reasonable but Mistaken Belief as to the Law.............. 539

2. Reasonable But Mistaken Belief as to the Facts ........... 539

*****

I. Introduction

Perhaps no issue can impact on the personal and 

professional career of a law enforcement officer than a lawsuit 

alleging excessive use of force.

A. Non-Deadly Force and Reasonableness

Most officers will use non-deadly force far more frequently 

than they will use deadly force. The constitutional standard for 

using any force, whether deadly or not, is the Fourth 

Amendment standard of ―objective reasonableness.‖ In Graham 

v. Connor1, the Supreme Court made clear that the right to 

make an arrest or investigatory stop necessarily carries with it 

the right to use some degree of physical coercion or threat 

thereof to affect it. The Court recognized that the test of 

reasonableness under the Fourth Amendment is not capable of 

precise definition or mechanical application, so proper 

 

1 Cases named in this chapter without a case cite are briefed in the 

companion book, Legal Division Reference Book.
_______________

Use of Force – Legal Aspects

513

application requires careful attention to the facts and 

circumstances of each particular case.

B. There is No ―Perfect Answer‖ when Using Force

The Supreme Court explained in Graham what standard 

courts should use to determine if the use of force was 

reasonable:

Based on a totality of circumstances . . . the 

reasonableness of a particular use of force must be 

judged from the perspective of a reasonable officer 

on the scene, rather than the 20/20 vision of 

hindsight[.] . . . As in other Fourth Amendment 

contexts, however, the reasonableness inquiry in an 

excessive force case is an objective one: the 

question is whether the officers‘ actions are 

objectively reasonable in light of the facts and 

circumstances confronting them, without regard to 

underlying intent or motivation....

Not every push or shove, even if it may later seem 

unnecessary in the peace of a judge‘s chambers, 

violates the Fourth Amendment. The calculus of 

reasonableness must embody allowance for the fact 

that police officers are often forced to make splitsecond judgments - in circumstances that are 

tense, uncertain, and rapidly evolving - about the 

amount of force that is necessary in a particular 

situation. 

C. Factors to Consider in Determining Whether 

Excessive Force was Used

In Graham, the Supreme Court emphasized four key

factors that courts will examine when determining what level of

force is justified in a use of force encounter:

Severity of the crime.
_______________

Use of Force – Legal Aspects

514

Whether the suspect is an immediate threat to the 

safety of the officer or others. (This is the most 

important single factor.)

Whether the suspect is actively resisting arrest, or

Is attempting to evade arrest by flight.

Since Graham, courts have used additional factors to 

determine whether use of force is reasonable in a particular 

case, including:

The number of suspects and officers involved.

The size, age, and condition of the officer and 

suspect.

The duration of the action.

Whether the force applied resulted in injury.

Previous violent history of the suspect, known by 

the officer at the time.

The use of alcohol or drugs by the suspect.

The suspect‘s mental or psychiatric history, known 

by the officer at the time.

The presence of innocent bystanders.

The availability of other weapons (sprays, batons, 

tasers).
_______________

Use of Force – Legal Aspects

515

D. Handcuffing and Pointing Weapons during Terry 

Stops

1. Using Handcuffs Does Not Automatically 

Convert a Seizure into an Arrest

Because safety may require you to temporarily freeze a 

potentially dangerous situation, using handcuffs may be 

reasonable during a Terry stop. Handcuffing a suspect does not 

transform a Terry stop into a full custodial arrest, provided the 

use of handcuffs is reasonably necessary to assure the safety of 

officers or bystanders. Handcuffing can be a reasonable attempt 

to restrain a suspect as long as the officer can articulate a 

reasonable factual justification for the restraint.

For instance, pointing a firearm at and handcuffing a 

suspect can be reasonable when a suspect matches the 

description of an armed and dangerous suspect. In United 

States v. Vargas, 369 F. 3d 98 (2d Cir. 2004) officers had 

reliable information that Vargas was carrying a weapon. Vargas 

had demonstrated his unwillingness to cooperate by fleeing 

from the police when first contacted and continuing to struggle 

with one of the officers after he was stopped. Immediately upon 

intercepting Vargas, the officer placed him in handcuffs and 

conducted a pat-down search for weapons, which revealed a 

concealed firearm. The court held that the level of force used 

was reasonable under the circumstances, and that Vargas was 

not arrested until the discovery of the firearm.

2. Pointing a Weapon at a Suspect Does Not 

Automatically Convert a Seizure into an Arrest

As with the use of handcuffs, there is no rule that 

pointing guns at people constitutes an arrest. Instead, the use 

of guns in connection with a stop is permissible when you 

reasonably believe such action is necessary for your protection. 

Courts have held that intrusive and aggressive police conduct is 

not an arrest when it is a reasonable response to legitimate 

safety concerns on the part of the investigating officers. United 

States v. Miles, 247 F.3d 1009 (9th Cir. 2001).
_______________

Use of Force – Legal Aspects

516

3. “Officer Safety” as a Reason for a Particular 

Use of Force

Simply stating that a particular use of force, such as 

handcuffing, pointing a weapon, or using a baton or chemical 

spray on a suspect, was done for ―officer safety‖ is not 

sufficient. ―Officer safety‖ is the conclusion that you reach 

when presented with facts that lead you to believe that your 

safety is a concern, or is in jeopardy. You must be able to 

articulate specific facts, since these facts will be used to judge 

your particular use of force. For example:

 NOT

II. The Use of Deadly Force

A. Definitions

The following definitions are useful in explaining the rules 

regarding ―deadly force.‖

1. Deadly Force

In the majority of circuits, ―deadly force‖ is defined as that 

force which is reasonably likely to cause death or serious 

physical injury.

2. Serious Physical Injury

Typically, ―serious physical injury‖ is defined as any 

bodily injury which involves: (1) a substantial risk of death; or 

(2) extreme physical pain; or (3) protracted and obvious

I handcuffed and frisked the 

suspect because he had a 

bulge in his jacket pocket 

and he would not keep his 

hand out of that pocket after 

being told to do so. 

I handcuffed and frisked 

the suspect for ―officer 

safety.‖
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disfigurement; or (4) protracted loss or impairment of the 

function of a bodily member, organ, or mental faculty.

B. Use of Deadly Force – Objective Reasonableness

As stated above, all claims of excessive force by law 

enforcement officers—deadly or not—are analyzed under the 

Fourth Amendment‘s ―objective reasonableness‖ standard. 

Whether or not an officer‘s actions constitute deadly force, all 

that matters is whether the officer‘s actions were objectively 

reasonable. This determination depends upon the underlying 

facts and circumstances of each particular case.

In Scott v. Harris the Supreme decided a case involving a 

high speed vehicle pursuit. A deputy chased a vehicle for 

speeding (73 mph in a 55 mph zone) at speeds approaching 90 

mph down mostly two-lane roads with other vehicular traffic 

present. Six minutes and nearly ten miles after the chase 

started, a deputy received permission to stop the pursuit by 

using a precision Intervention Technique (―PIT‖). However, the 

deputy concluded that the suspect vehicle was traveling too 

fast, so instead he applied his push bumper to the rear of the 

suspect‘s vehicle. As a result, the suspect lost control of his 

car, which left the roadway, ran down an embankment, 

overturned and crashed. The suspect was badly injured and 

rendered a quadriplegic. He filed a civil rights lawsuit alleging 

excessive force under the Fourth Amendment.

On appeal, the Supreme Court said that a Fourth 

Amendment seizure occurs when there is a governmental

termination of freedom of movement through means 

intentionally applied. The Supreme Court noted that the police 

cruiser‘s videotape showed the following facts: the suspect‘s 

vehicle was racing down narrow, two-lane roads in the dead of 

night at speeds that are shockingly fast. The suspect swerved 

around more than a dozen other cars, crossed the double-yellow 

line, and forced cars traveling in both directions to their 

respective shoulders to avoid being hit. The suspect‘s vehicle 

ran multiple red lights and traveled for a considerable time in 

the center left-turn-only lane. The Court noted that the 
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518

suspect‘s driving put the police officers and innocent 

bystanders alike at great risk of serious injury. The Court 

looked not only at the number of lives at risks, but also the 

relative culpability of the suspect and innocent public. The 

Court said that it was the suspect, after all, who intentionally 

placed himself and the public in danger by unlawfully engaging 

in the reckless, high-speed flight that ultimately produced the 

choice to the deputy: use deadly force against the suspect to 

stop the risk of serious bodily injury or death he posed to the 

public or do nothing and take the risk that the suspect would 

injure or kill an innocent party. 

Based on the totality of the facts and circumstances, the 

Supreme Court ruled the car chase that the fleeing motorist 

initiated posed a substantial and immediate risk of serious 

physical injury to others. As such, the deputy‘s attempt to 

terminate the chase by forcing the motorist off the road was 

objectively reasonable and therefore the deputy was entitled to 

summary judgment based upon qualified immunity, which 

resulted in the dismissal of the lawsuit against him.

In Tennessee v. Garner the Supreme Court announced 

one set of constitutional requirements regarding deadly force. 

The Court held that, under the Fourth Amendment, you may 

not use deadly force to prevent the escape of an unarmed and 

non-dangerous property crime suspect. By way of example only, 

the Court then laid out one set of circumstances under which 

you might constitutionally employ deadly force to prevent the 

escape of a fleeing dangerous suspect. Specifically, the Court 

noted:

Where the officer has probable cause to believe that 

the suspect poses a threat of serious physical 

harm, either to the officer or to others, it is not 

constitutionally unreasonable to prevent escape by 

using deadly force. Thus, if the suspect threatens 

the officer with a weapon or there is probable cause 

to believe that he has committed a crime involving 

the infliction or threatened infliction of serious 

physical harm, deadly force may be used if 
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519

necessary to prevent escape, and if, where feasible, 

some warning has been given (underline added).

In Scott the Supreme Court said that the necessity 

described in Garner was, in fact, the need to prevent ―serious 

physical harm, either to the officer or to others.‖ 

For example, a police officer responds to a bank holdup. 

The officer looks inside the bank and sees a masked individual 

standing with his arm extended toward several people who have 

their arms raised above their heads. However, due to an 

obstruction, the officer is unable to see if the masked man has 

an object in his hand. Thereafter, the suspect runs out of the 

bank carrying a bag in his hand. The officer twice calls out, 

"Halt, police," to the fleeing suspect. The fleeing suspect 

disregards the verbal warnings and instead continues to flee. 

The officer shoots the fleeing suspect.

The officer‘s actions were objectively reasonable under the 

circumstances. Under the totality of the information the officer 

possessed when he fired at the suspect, the officer had probable 

cause to believe that the suspect posed a threat of serious 

physical harm to himself and to others. Ford v. Childers, 855 

F.2d 1271 (7th Cir. 1988).

C. Other Aspects of Objective Reasonableness

Objective reasonableness can involve many factors. 

Below are general insights concerning the use of deadly force:

1. You Need Not “Fear for Your Life” Before Using 

Deadly Force

Objective reasonableness does not require that you ―fear 

for your life‖ before using deadly force. For example, snipers 

may justifiably shoot a hostage taker from a distance without 

any subjective fear of harm.
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2. Warning Shots Are Not Explicitly Prohibited

Objective reasonableness does not explicitly prohibit the 

use of warning shots. However, the use of warning shots is 

often regulated by agency policy. For example, the Department 

of Homeland Security Policy on the Use of Deadly Force 

generally prohibits warning shots with an exception that allows 

warning shots by the Secret Service exercising protective 

responsibilities.

3. The Offense Can Be a Felony or Misdemeanor

The Constitution does not require that the offense be a 

felony. Instead, the focus is on the threat of violence to the 

officer or others. You may encounter violent misdemeanor 

assaults involving weapons as well as non-violent felonies like 

financial fraud.

4. Verbal Warnings Are Not Always Required 

Before Deadly Force Can Be Used

If feasible to do so, giving a warning before using deadly 

force may help make the force reasonable. A warning is not 

required before every use of deadly force, and nothing mandates 

that the warning be verbal. 

5. You Need Not Exhaust All Lesser Forms of 

Force before Using Deadly Force

You are not required to exhaust all lesser forms of force 

before resorting to deadly force. However, even when deadly 

force is authorized, you can always use a lesser amount of 

force.

6. You Have No Duty to Retreat before Using 

Deadly Force

Some states have imposed a ―duty to retreat‖ on private 

citizens before permitting those citizens to use deadly force. 

However, you are under no legal duty to retreat before using 

deadly force. Of course, there is no rule preventing you from 
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521

retreating should you consider it best to do so. There may be 

sound tactical reasons for disengaging and retreating to cover, 

and you are not legally required to remain in place. 

D. Examples

The following cases illustrate basic principles regarding 

the use of deadly force.

1. Officer Shoots Unarmed, Handcuffed Suspect 

who is Running Towards Him and Who the 

Officer Reasonably Believed Was Armed

In McLenagan v. Karnes, 27 F.3d 1002 (4th Cir.), cert. 

denied2, 513 U.S. 1018 (1994), two arrested suspects were 

sitting in a break room with an officer (Smith) awaiting 

transport to jail. Both arrestees were handcuffed in the front of 

their bodies. Unfortunately, a magistrate on the scene that 

night had left a firearm unattended in an adjoining office while 

taking a restroom break. When one of the arrestees jumped up 

and bolted into the office where the gun was located, Smith ran 

from the break room yelling, ―The man has got a gun!‖ several 

times. The other arrestee (McLenagan) followed Smith out of 

the room in an attempt to avoid the perceived danger. Because 

he was handcuffed, McLenagan was crouched over while he 

ran. Smith, still yelling, ―The man has got a gun,‖ ran past 

another officer (Karnes), who was escorting a detainee down the 

main hallway toward the front door, away from the break room. 

 

2 Cert. denied means that the Supreme Court refused to consider an appeal 

of the appellate court‘s decision.

Use of Deadly Force

Fear Not Required

Felony or Misdemeanor

No Need to Exhaust Lesser 

Force Options

No Duty to Retreat
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522

Karnes immediately drew his gun, wheeled and saw McLenagan 

almost upon him; Karnes could not see whether McLenagan 

had a gun in his hands. Karnes fired one shot, wounding 

McLenagan.

The court held that Karnes acted reasonably and 

dismissed the civil lawsuit. The court noted they would not 

second-guess the split-second judgment of a trained police 

officer merely because that judgment turns out to be mistaken, 

particularly where inaction could have resulted in death or 

serious injury to the officer and others. Here, Karnes had a 

credible warning that an imminent danger existed based upon 

Smith‘s statements. Also, Karnes had no ability to provide a 

verbal warning to McLenagan because, when he turned and 

drew his weapon, McLenagan, in full flight, was virtually upon 

him. For all Karnes knew, the hesitation involved in giving a 

warning could readily cause such a warning to be his last. 

Finally, the court found it would not be wise to require a police 

officer, in all instances, to actually detect the presence of an 

object in a suspect‘s hands before firing on him. In other words, 

it was not necessary for Karnes to actually see the weapon in 

McLenagan‘s hands before he resorted to deadly force.

2. Officer Shoots a Fleeing, Dangerous Subject 

Armed with a Knife

In Krueger v. Fuhr, 991 F.2d 435 (8th Cir.), cert. denied, 

510 U.S. 946 (1993), an officer (Fuhr) was chasing an assault 

suspect (Krueger) who was thought to be an escapee from a 

halfway house, high on drugs, and armed with a knife. Fuhr 

repeatedly ordered Krueger to ―freeze‖ during the chase. As he 

got within 3-4 yards of Krueger, Fuhr observed him reach into 

his waistband and retrieve a knife. Believing Krueger was 

preparing to turn to attack him with the knife, Fuhr shot him in 

the back, killing him with one round to the base of the skull.

The court held that Fuhr acted reasonably in using 

deadly force. First, because he received information that 

Krueger was intoxicated, had a knife, and was fleeing an 

assault, Fuhr reasonably believed he was dealing with an armed 
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and dangerous suspect. Second, because there was probable 

cause to believe that Krueger posed a threat of serious physical 

harm and had previously committed an assault, the use of 

deadly force was necessary to prevent Krueger‘s escape. And 

third, while Fuhr did not give a verbal warning immediately 

preceding the shooting, he had given warnings throughout the 

course of the pursuit.

3. Officer Shoots Unarmed Suspected Robber 

Who Reached into His Coat

In Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988), two 

officers pulled over two men in a vehicle who were suspected of 

an armed robbery. Both officers had their weapons drawn as 

they approached the vehicle. The suspects raised their hands 

only after being told to do so three times by the officers. As one 

of the officers (Berry) approached the vehicle, he observed the 

driver make a quick movement with his hand into his coat as if 

he was going to reach for a weapon. The officer shot, killing the 

suspect (Sherrod) instantly.

During the civil lawsuit that followed, the plaintiff 

(Sherrod‘s family) was allowed to present evidence that, 

following the shooting, a search of the suspect indicated he was 

unarmed at the time he was shot. The jury returned a verdict 

against Berry, who appealed. In reversing the jury verdict and 

remanding the case for a new trial, the appellate court 

reiterated that knowledge of facts and circumstances gained 

after the fact (that the suspect was unarmed) had no place in 

the trial court‘s or jury‘s analysis of the reasonableness of the 

officer‘s judgment. By admitting this evidence, the judge allowed 

the jurors to possess more information than Berry possessed 

when he made the crucial decision. This was improper. An 

officer‘s liability must be determined exclusively upon an 

examination and weighing of the information the officer 

possessed immediately prior to and at the very moment he fired 

the fatal shot. In sum, the court held that, when, as here, you 

believe that a suspect‘s actions place you, your partner, or

those in the immediate vicinity in imminent danger of death or 

serious bodily injury, you may reasonably use deadly force.
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4. Officer Shoots Suspect Who Attacked His 

Partner with a Magnetic Key Holder

In Lowery v. Stovall, 92 F.3d 219, (4th Cir. 1996), cert. 

denied, 519 U.S. 1113 (1997), an officer (Redd) made a routine 

traffic stop and placed the suspect (Lowery) in the front seat of 

the patrol car while he wrote the ticket. A second officer 

(Stovall) was in the back seat. At a certain point, Lowery pulled 

an object out of his pocket and cut Redd on the face. When 

Redd yelled ―knife,‖ Stovall attempted to stop the attack. Lowery 

started to climb over the seat and swung the object at Stovall. 

Stovall blocked Lowery‘s arm, drew his firearm and shot Lowery 

in the head. After the incident, officers determined that the 

object was a magnetic key holder, not a knife.

The use of deadly force in this case was reasonable. The 

court noted that, upon seeing Lowery attack Redd and hearing 

Redd yell that Lowery had a knife, Stovall had probable cause to 

believe that Lowery posed a threat of serious harm to Redd. 

Accordingly, Stovall acted as a reasonable officer would have in 

his situation.

5. Officer Shoots an Unarmed, Fleeing Burglar

In Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993), a 

suspect (Ellis) broke into a pharmacy by knocking a hole 

through an adjoining building with a sledgehammer. In so 

doing, he tripped the burglar alarm. An officer (Wynalda) 

responded and observed Ellis walking away carrying a jacket 

and a mesh bag. Wynalda twice ordered Ellis to halt. 

Unexpectedly, Ellis threw his jacket and bag towards Wynalda, 

backed away, turned, and started to run away. The lightweight 

bag (4-5 pounds) hit Wynalda on the shoulder and then fell 

harmlessly to the ground. As Ellis ran away, Wynalda shot him 

once in the lower back.

The district court dismissed the lawsuit, but the circuit 

court reversed, finding that there remained questions as to 

whether the use of deadly force in this situation was 

reasonable. First, Wynalda had no particular reason to believe 
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525

Ellis was armed. Second, while the tossing of the lightweight 

bag was risky and startling, it was not the equivalent of 

menacing Wynalda with a weapon. As noted by the court:

If Wynalda feared that the bag might be heavy and 

might knock the gun from his hand or provide an 

opportunity for Ellis to draw a concealed weapon, 

he would have been justified in firing at that 

moment, but not after the lightweight bag fell to the 

ground without injuring him and Ellis had turned 

and run. In other words, if Wynalda had shot Ellis 

while Ellis was throwing the bag at him, that would 

have been permissible as the action of a reasonable 

officer facing a dangerous felon. Even if he shot 

Ellis after the bag had hit him but while he was still 

disoriented and off-balance, his action could be 

reasonable, because he would not know, for 

example, if Ellis was going to attack him or was 

reaching for a weapon. In this case, however, 

Wynalda was struck by the lightweight bag and 

then observed Ellis back away, turn and run. He 

could see and understand the situation; he bore no 

injury; Ellis presented no immediate threat and was 

not apparently armed. Even the bag he may have 

used as a weapon had been abandoned at the 

officer‘s feet. 

Third, when an officer faces a situation in which he could 

justifiably shoot, he does not retain with impunity the right to 

shoot at any time thereafter. Although Wynalda could have 

shot Ellis during their physical encounter, since a reasonable 

officer may have felt threatened, Wynalda had no reasonable 

fear of Ellis after he backed away and ran. If Ellis had 

threatened the officer with a weapon and then run off with the 

weapon, a reasonable officer in Wynalda‘s place could believe 

that Ellis created a danger to the community. However, here, 

Ellis tossed a lightweight bag up toward Wynalda and then ran 

away, without even that makeshift weapon to endanger anyone. 

While Ellis‘ actions may seem foolish to the reasonable officer,
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526

they do not give rise to a reasonable belief that Ellis presented a 

threat of serious harm to Wynalda or others.

E. Agency Policy Restrictions

The Fourth Amendment sets a minimum standard for the 

use of deadly force. Agency policies often intentionally restrict 

the use of deadly force greater than the Constitution permits. 

Thus, it is possible to lawfully use deadly force in accordance 

with the Constitution, yet still violate policy. Policy violations 

may result in administrative discipline. However, while agency 

policies are relevant to the analysis of constitutionally excessive 

force, they do not automatically establish civil liability. The 

courts will use the standard of reasonableness as defined by 

Graham and Scott to decide if an officer violated a suspect‘s 

constitutional rights.

 

III. Striking Instruments and Chemical Sprays

A. Striking Instruments – Generally

Within the context of this course, the term ―striking 

instruments‖ refers to those items within your possession that 

might be used to strike a blow against a subject. Generally, 

this would include flashlights and expandable batons.

B. The Rules Outlined in Graham Apply

As with any other use of force, your use of a striking 

instrument must be objectively reasonable based upon the 

totality of the circumstances known to you at the time of the 

incident. Whether your use of force was objectively reasonable 

requires the consideration of such factors as the severity of the 

crime, whether the suspect is an immediate threat to the safety 

of you or others, and whether the suspect is actively resisting 

arrest or attempting to evade arrest by flight. 

C. Gratuitous Blows

Gratuitous and completely unnecessary acts of violence 

by the police during a seizure violate the Fourth Amendment. 
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Use of Force – Legal Aspects

527

Once a suspect has been restrained and is no longer resisting, 

any gratuitous blows to the suspect would generally be 

unreasonable and violate the Fourth Amendment. ―It is one 

thing to use force in subduing a potentially dangerous or violent 

suspect, and quite another to proceed to gratuitously beat him.‖ 

Just because a certain degree of force to restrain a suspect may 

have been justified earlier in an encounter does not mean that 

such force still is justified once the suspect has been restrained.

D. Examples 

The following cases illustrate basic principles regarding 

the use of striking instruments, such as flashlights and 

expandable batons.

1. Officer Strikes Handcuffed Suspect in the 

Mouth with His Nightstick

In Lewis v. Downs, 774 F.2d 711 (6th Cir. 1985), officers 

Geil and Downs arrived and arrested a woman (Lewis) for 

causing a disturbance. In an attempt to prevent his mother 

from being taken to jail, Lewis‘ son approached an officer with 

an iron rake. After Downs drew his weapon and ordered him to 

drop the rake three times, the son did so. The son was then 

handcuffed and arrested. While being led to the police car, 

without justification Geil struck the son in the mouth with his 

nightstick, inflicting an injury to his mouth that ultimately 

required several stitches.

The court determined Geil had used excessive force in 

striking the son in the mouth with his nightstick after having 

subdued and handcuffed him. ―The unprovoked and 

unnecessary striking of a handcuffed citizen in the mouth with 

a nightstick is clearly excessive. Because there was simply no 

reason for this type of conduct the striking could only be 

deemed malicious.‖
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528

2. Officer Strikes Non-Resisting Suspect in 

Stomach with Flashlight

In Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991), 

officers performed a Terry stop on Mr. Dixon and his wife. 

When Dixon was asked to put his hands on the van so a frisk 

could be performed, he complied. During the frisk, one officer 

(Richer) kicked Dixon in the instep, causing him intense pain. 

Dixon responded to this act by stating, ―Is that f——g 

necessary?‖ No weapons were found during this frisk. When a 

second officer arrived, Dixon was again ordered to put his 

hands against the van for a frisk, and again he complied. At 

that point, the officers began to pat him down again. Without 

warning, one of them kicked Mr. Dixon again, so forcefully that 

he started to fall. As Mr. Dixon fell, Richer hit him in the 

stomach with a metal flashlight. Once on the ground, the 

deputies got on top of him and began to beat and choke him.

The court noted that when Dixon was kicked (the second 

time), struck with a flashlight, and then choked and beaten, he 

had already been frisked, had his hands up against the van 

with his back to the officers, and was not making any 

aggressive moves or threats. While it is reasonable to frisk a 

detainee suspected of carrying a weapon, it is not reasonable to 

hit him in the stomach with a flashlight, or choke and beat him, 

solely on the basis of that suspicion.

3. Officer Strikes Armed Robbery Suspect with 

Flashlight during Arrest

In Kellough v. Bertrand, 22 F. Supp. 2d 602 (S.D. Tex. 

1998), officers performed a traffic stop on an individual

(Kellough) who matched the description of an armed robbery 

suspect in an area where the suspect was believed to be. Upon 

exiting the vehicle, Kellough was ordered to lie face-down on the 

road. Kellough did not comply immediately and began to ask 

what he had done. Officers then took him to the ground and 

handcuffed him. Kellough alleged that one of the officers, 

Bertrand, struck him in the arm with a flashlight during this 

portion of the stop. Kellough was not the robbery suspect, and 
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529

a grand jury failed to indict him on charges of resisting arrest 

and retaliation.

The court dismissed Kellough‘s claim of excessive force. 

The court noted that, even accepting as true Kellough‘s 

allegation that he exited his vehicle in a non-threatening 

manner, his refusal to follow the officers‘ instructions to go to 

the ground would probably justify a reasonable officer‘s 

decision, in light of the circumstances, to employ some force to 

take him to the ground. While the court found the allegation 

regarding the use of the flashlight to be ―troubling,‖ Kellough 

had acknowledged that none of the officers struck him or 

employed any force whatsoever after he was handcuffed. Thus, 

assessing the situation from the perspective of a reasonable 

officer on the scene, it did not appear to the court that any of 

the actions identified by Kellough were excessive.

4. Officers Strike Suspect Resisting Arrest with 

Flashlight and Nightstick

In Cotton v. Busic, 793 F. Supp. 191 (S.D. Ind. 1992), the 

suspect (Cotton) went on a rampage one night by throwing 

rocks and creating a disturbance to which two police officers 

were summoned. Cotton and the officers then engaged in a 

scuffle which left Cotton with serious bumps and bruises and 

no left eye. Generally, Cotton was acting in an enraged, 

aggressive and threatening manner on the night that he was 

confronted by the officers. Cotton was armed with two hunks of 

concrete which he initially refused to put down when requested

to do so by the officers. When the officers tried to arrest Cotton, 

a scuffle ensued. A witness testified that Cotton was the 

aggressor, that Cotton got one of the officers in a ―bear hug,‖ 

and that Cotton was ―strong as hell.‖ Once the officers got 

Cotton to the ground, he continued to struggle and resist the 

officers even while he was on the ground. The officers struck 

Cotton with both flashlights and nightsticks to make him 

comply. In the civil suit that followed, the jury returned a 

verdict in favor of the officers on the excessive force claim. 

Cotton asked the judge to overturn the jury‘s verdict. In 

upholding the jury‘s verdict, the court stated:
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Use of Force – Legal Aspects

530

The officers struck Cotton with a flashlight and a 

nightstick - brutal stuff - but the evidence is strong 

that it was a brutal encounter. Nor can this Court 

conclude that the force used was excessive because 

of the combination of the sad reality that Bobby 

Cotton‘s eye socket was exploded and the fortunate 

circumstance that the officers were not seriously 

hurt. A police officer need not suffer brutalizing 

injury before he inflicts it; rather, the restraint on 

an officer‘s use of force is that it must be 

reasonable under the circumstances. 

E. Chemical Sprays – Generally

The term ―chemical sprays‖ typically refers to pepper 

spray (Oleoresin Capsicum). However, the rules outlined below 

will likely apply to all other chemical sprays that may be used 

by law enforcement personnel. By way of definition, oleoresin 

capsicum (pepper gas) is an aerosol spray made from an oily 

extract of the capsicum pepper plant. When inhaled, it induces

coughing, a gagging sensation, and an inability to vocalize. It is 

a less powerful version of the irritant gases marketed under the 

trade name Mace, and its use is authorized under standard 

police protocols in less threatening instances than those in 

which the use of Mace is sanctioned.

1. When Chemical Sprays are Generally 

Considered to be Excessive

The unreasonable use of chemical sprays may constitute 

excessive force. The analysis for use of chemical sprays as force 

is essentially the same as that for the use of more traditional 

forms of physical control. Reasonableness is determined by the 

totality of the circumstances, including the arrestee‘s conduct 

and the officer‘s reasonable perception of the scenario. While 

every use of force must be measured against the particular 

circumstances of a given situation, some general rules 

regarding the use of chemical sprays can be outlined. Courts

have consistently concluded that using chemical sprays is 

excessive force in the following types of cases:
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Use of Force – Legal Aspects

531

(a) The Crime is a Minor Infraction

Generally, more force is appropriate for a more serious 

offense, and less force is appropriate for a less serious one. 

―Severity of the crime at issue‖ was one of the factors noted by 

the Court in Graham. For example, the use of a chemical spray 

is more likely to be excessive when an arrest involves a minor 

infraction like a seat belt violation.

(b) The Arrestee Surrenders, is Secured, and is 

Not Acting Violently

Graham noted that a court should consider whether the 

suspect is actively resisting arrest or attempting to evade arrest 

by flight. In one case, the use of a chemical spray against 

protesters was excessive, in part because the officers already 

had control over the protestors. It would have been clear to any 

reasonable officer that it was unnecessary to use pepper spray 

to bring them under control. The use of a chemical spray may 

be reasonable as a general policy to bring an arrestee under 

control. But, in a situation in which an arrestee surrenders and 

is rendered helpless, any reasonable officer would know that a 

continued use of a chemical spray, or a refusal without cause to 

alleviate its harmful effects, constitutes excessive force. The use 

of a chemical spray would be unreasonable if no assault 

occurred, and the suspect is not acting in a threatening or 

violent manner.

(c) There is No Threat to the Officers or Anyone 

Else

Graham emphasized that courts should consider whether 

the suspect posed an immediate threat to the safety of the 

officers or others. This is the most important single element of 

the four factors outlined in Graham. 

2. When Chemical Sprays are Generally 

Considered to be Reasonable

Courts have consistently concluded that using chemical 

sprays is reasonable in the following types of cases:
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Use of Force – Legal Aspects

532

(a) The Suspect was Resisting Arrest

When a suspect is actively resisting arrest, a chemical 

spray may be a reasonable tool to obtain compliance. In fact, 

chemical sprays are often a very reasonable alternative to 

escalating a physical struggle with an arrestee. If an armed 

officer physically confronts an individual resisting arrest, any 

number of unforeseen contingencies (such as the officer losing 

his firearm) could occur. As a means of imposing force, 

chemical spray is generally of limited intrusiveness. It is 

designed to disable a suspect without causing permanent 

physical injury.

(b) The Suspect was Refusing Police Requests

When a suspect is refusing lawful police commands, such 

as requests to get in a patrol car or to go to the hospital, it may 

be reasonable to employ a chemical spray to obtain compliance.

(c) The Suspect Was Trying to Swallow Evidence

There is no constitutional right to destroy or hide 

evidence. Over the years, the courts have considered whether 

an officer‘s use of force to obtain evidence from a suspect was 

appropriate. Many cases have found searches of a suspect‘s 

person reasonable despite the fact that the evidence was 

obtained from the suspect‘s mouth or other orifice. In one case, 

a court found the use of a chemical spray to prevent the 

suspect from swallowing crack cocaine to be reasonable under 

the circumstances.

F. Examples

The following cases illustrate basic principles regarding 

the use of chemical sprays.

1. Use of Chemical Spray Reasonable

(a) Officer Uses Pepper Spray Against 

Handcuffed Suspect Who Was Struggling 

During an Arrest
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Use of Force – Legal Aspects

533

In Griffin v. City of Clanton, 932 F. Supp. 1359 (M.D. Ala. 

1996), officers made a traffic stop of the suspect (Griffin). 

During the investigation, it appeared to the officers that Griffin 

was intoxicated. Griffin fled the scene of a traffic stop and was 

found shortly thereafter banging on the backdoor of a house 

that belonged to his aunt. Upon seeing the officers‘ approach, 

Griffin ran inside the house. The officers chased him inside, 

cornered him in the living room, and began to struggle with 

him. Ultimately, the suspect was handcuffed and lying face 

down on the floor, still struggling, with two officers on top of 

him. Another officer (Bearden) entered the house, did not see 

that Griffin was handcuffed, and believed that pepper spray was 

necessary to subdue him. The officer waited for an opportunity 

to spray Griffin without hitting any officers, and then sprayed 

him in the face.

Griffin claimed the use of pepper spray (among other 

things) was excessive under these circumstances. The court 

disagreed and dismissed the lawsuit. First, Griffin had already 

fled from the officers twice - once from the scene of the traffic 

stop and once when he ran inside the home. Second, the 

officers believed Griffin was intoxicated. This was good cause to 

believe that Griffin would continue to resist arrest - as proved to 

be the case - when he was confronted inside the house. Third, 

when Bearden arrived on the scene, it was chaotic. He could 

not see that Griffin had been handcuffed. And, while Bearden 

sprayed the OC directly into Griffin‘s face, he had a legitimate 

reason for so doing. Specifically, had Bearden diffused the 

spray more generally, he would have risked disabling the other 

officers, and Griffin might have had the opportunity to flee once 

again or to inflict harm upon an officer or himself.

(b) Officer Uses Pepper Spray Against Unarmed 

Man Refusing to Go to Hospital

In Monday v. Oullette, 118 F.3d 1099 (6th Cir. 1997), the 

suspect (Monday) had a long history of drug and alcohol abuse, 

as well as depression. Physically, he was approximately 6‘0" tall 

and weighed over 300 pounds. After receiving a call from a 

mental health counselor that Monday was ingesting pills 
_______________

Use of Force – Legal Aspects

534

(Xanax) and drinking alcohol in a suicide attempt, police arrived 

to investigate. After finding that over 20 of Monday‘s pills were 

missing, the officers insisted he go to the hospital to be 

examined, but he refused. After approximately 20 minutes, 

Oullette informed Monday that if he did not go to the hospital, 

he would be sprayed with pepper spray. Monday continued to 

refuse, instead remaining seated and drinking a bottled beer. 

At that point, Oullette administered a single spray of pepper 

spray.

In affirming the district court‘s judgment in favor of 

Oullette, the court found Oullette‘s use of pepper spray 

permissible based on the suspect‘s refusal to go to the hospital. 

Here, Oullette warned Monday that if he did not agree to go to 

the hospital, he would be sprayed. After many minutes of 

fruitless discussion, that‘s exactly what happened. According to 

the court, Oullette‘s decision to act on his warning (to spray 

Monday), rather than risk injury and further delay through a 

physical confrontation with a large and intoxicated person, did 

not constitute excessive force. While Monday was neither 

verbally nor physically abusive to the officers, numerous factors 

supported Oullette‘s decision to resort to pepper spray: (1) 

Monday‘s size; (2) the fact he had been drinking; (3) the fact he 

still was drinking from a bottle; and (4) Monday‘s adamant 

refusal to go to the hospital. Further, resorting to physical force 

rather than pepper spray would have raised additional 

problems for the officers. In view of Monday‘s size, his drinking

and the beer bottle in his hand, Oullette chose to use pepper

spray, which his department permitted him to do in his 

discretion.

(c) Officer Uses Pepper Spray to Prevent a 

Suspect From Swallowing Evidence

In United States v. Holloway, 906 F. Supp. 1437 (D. Kan. 

1995), the suspect (Holloway) was handcuffed and detained 

during the execution of a search warrant for drugs. When 

Holloway failed to respond audibly to several questions, officers 

became suspicious he had something in his mouth. Although 

Holloway was ordered to spit out whatever he had in his mouth, 
_______________

Use of Force – Legal Aspects

535

he refused to do so. The officers then sprayed CAPSTUN into 

Holloway‘s face, causing him to disgorge a quantity of cocaine 

base from his mouth.

Holloway moved to suppress the evidence obtained from 

his mouth, claiming he had been the victim of excessive force. 

The court refused, noting initially that there is no constitutional 

right to destroy or secret evidence. Nevertheless, evidence may 

not be obtained in violation of Holloway‘s constitutional rights. 

In this case, the use of CAPSTUN was reasonable, because (1) 

Holloway was only sprayed once, and (2) the physical force used 

in restraining Holloway and obtaining the contents of his mouth 

was reasonable under the totality of circumstances. Officers 

were not required to simply wait to let nature take its course. 

2. Use of Chemical Spray Unreasonable

(a) Officer Uses Pepper Spray Against Verbally 

Abusive Suspect who is handcuffed and 

Secured in Rear of Patrol Vehicle

In Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), an 

officer (Stanfield) arrested Vinyard for ―disorderly conduct and 

obstruction,‖ both minor offenses. Vinyard was handcuffed and 

placed in the back of the patrol vehicle for the ride to the jail, 

approximately 4 miles away. The vehicle had a plexiglass 

screen that separated the front and back seats. During the 

ride, Vinyard and Stanfield got into a verbal altercation, with 

Vinyard ―screaming‖ at the officer. At a secluded place, 

Stanfield pulled the vehicle over, got out, and opened the back 

door where Vinyard was seated. He then pulled Vinyard‘s head 

back by her hair and sprayed her in the face with two to three 

bursts of pepper spray. At all times during this incident, 

Vinyard was handcuffed and located in the back seat of the 

vehicle. Further, Vinyard was 5‘3" tall and weighed 130 

pounds, while Stanfield was 6‘0" and weighed over 200 pounds.

The circuit court found it abundantly clear that 

Stanfield‘s use of the pepper spray against Vinyard was plainly 

excessive, wholly unnecessary, and, indeed, grossly 
_______________

Use of Force – Legal Aspects

536

disproportionate under Graham. Relying on the four factors 

outlined in Graham, the court noted the following: First, the 

crimes for which Vinyard was arrested were of minor severity. 

Second, Vinyard posed no threat, immediate or otherwise, to 

Stanfield or anyone else, because (a) she was handcuffed, (b) 

she was secured in the back of the patrol vehicle, and (c) there 

was a glass partition separating her from Stanfield. Finally, 

and for many of the same reasons noted above, there was no 

evidence that Vinyard resisted arrest or attempted to flee. 

(b) Officer Uses Pepper Spray on Unarmed 

Woman

In Park v. Shiflett, 250 F.3d 843 (4th Cir. 2001), Park and 

her husband inadvertently tripped the alarm of a store they had 

entered mistakenly believing it was open. They immediately 

called 911 to report what had occurred, and waited for officers 

to arrive. Upon arrival, the officers checked the store and found 

nothing to indicate a forced entry. When Mr. Park sought to 

return home to turn off a stove that had been left burning, he 

was handcuffed and detained by the officers. When Mrs. Park 

observed this, she began approaching her husband, but was 

stopped by one of the officers, who twisted Mrs. Park‘s arm 

behind her back, threw her up against the building, and 

handcuffed her. He sprayed her twice in the eyes from close 

range. Neither Mr. Park nor Mrs. Park was charged with any 

crime.

The circuit court found it difficult to imagine the unarmed 

Mrs. Park as a threat to the officers or the public. The 

irresponsible use of pepper spray twice from close range on the 

unarmed Mrs. Park was indeed excessive.

IV. Qualified Immunity

A. Defining Qualified Immunity

Qualified immunity is immunity from civil suit and 

entitles an officer to avoid standing trial or face the burdens 

associated with civil litigation. When a law enforcement officer 
_______________

Use of Force – Legal Aspects

537

is civilly sued for using excessive force during the seizure of a 

person, the officer may assert ―qualified immunity.‖ If 

successful, the lawsuit against the officer is dismissed.

B. The Rationale Behind Qualified Immunity

The rationale behind qualified immunity for police officers 

is two-fold: (1) to permit officers to perform their duties without 

fear of constantly defending themselves against insubstantial 

claims for damages, and (2) to allow the public to recover 

damages when officers unreasonably violate a person‘s 

constitutional or federal legal rights. The doctrine of qualified 

immunity is designed to protect all but the plainly incompetent 

or those who knowingly violate the law.

C. When Officers are Entitled to Qualified Immunity

Law enforcement officers are entitled to qualified 

immunity when their actions do not violate a clearly established 

statutory or constitutional right that a reasonable officer would 

have known existed. Stated differently, when law enforcement 

officers reasonably, albeit mistakenly, violate a person‘s 

constitutional rights, they - like other officials who act in ways 

they reasonably believe to be lawful - should not be held 

personally liable.

D. The Nature of Qualified Immunity

Qualified immunity is an affirmative defense. It must be 

raised by the officer. It is an individual defense. It protects the 

officer in an individual capacity and not the government entity 

employing the officer. The standard is ―objective 

reasonableness.‖ The officer‘s subjective state of mind is 

irrelevant. Although this type of immunity is sometimes referred 

to as ―good faith‖ immunity, the officer‘s subjective intent is 

irrelevant. The objective facts known to the officer at the time 

will determine the reasonableness of any action.
_______________

Use of Force – Legal Aspects

538

E. Analyzing Claims of Qualified Immunity

In deciding whether to grant qualified immunity, courts 

use a two-part analysis.

1. Did a Constitutional Violation Occur?

The court must determine whether, under the plaintiff‘s 

version of the facts, a constitutional violation occurred. If no 

violation has occurred, there is no basis for the lawsuit, and it 

is dismissed.

2. Was the Right “Clearly Established?”

If the evidence shows that the plaintiff‘s Constitutional 

rights were violated, the court must then consider whether the 

rights violated were ―clearly established‖ at the time of the 

violation. In addressing what is meant by the phrase ―clearly 

established,‖ the Supreme Court in Wilson v. Layne has stated:

―Clearly established‖ for purposes of qualified 

immunity means that the contours of the right 

must be sufficiently clear that a reasonable official 

would understand that what he is doing violates 

that right. This is not to say that an official action 

is protected by qualified immunity unless the very 

action in question has previously been held 

unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent. 

If the law was not clearly established at the time an 

action occurred, an officer could not be reasonably 

expected to anticipate subsequent legal 

developments, nor could he fairly be said to ―know‖ 

that the law forbade conduct not previously 

identified as unlawful.

If a Constitutional right was violated, but the right was 

not clearly established at the time, the officer is entitled to 

qualified immunity from suit. 
_______________

Use of Force – Legal Aspects

539

F. Reasonable Mistakes Can be Made

Qualified immunity can apply if a mistaken belief is 

reasonable. A right is not clearly established if, based on the 

circumstances, a reasonable officer could have believed that the 

conduct was within the bounds of appropriate police responses. 

Officers can have reasonable, but mistaken beliefs as to what 

the law requires and still be entitled to qualified immunity. 

Likewise, officers can have reasonable but mistaken beliefs as 

to the facts justifying a use of force and still be entitled to 

qualified immunity.

G. Examples

The following cases illustrate reasonable but mistaken 

beliefs that entitled the individual officers to qualified immunity 

from the civil lawsuit.

1. Reasonable but Mistaken Belief as to What the 

Law Requires

The case of Garner v. Memphis Police Department, 600 

F.2d 52 (6th Cir. 1979) was part of the litigation that eventually 

resulted in the landmark decision of Tennessee v. Garner. 

During the litigation, the officer was granted qualified immunity 

by the district court because he had reasonably relied on the 

state statute that authorized his use of deadly force. (This state 

statute was later declared unconstitutional in part by the 

Supreme Court). The circuit court agreed, holding that an 

individual officer has a qualified immunity from liability for 

constitutional claims based on the good faith performance of 

duties in accordance with statutory or administrative authority.

2. Reasonable but Mistaken Belief as to the Facts 

Justifying a Use of Force

In Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991), a police 

officer (Rizzo) involved in a narcotics ―sting‖ operation identified 

himself and ordered a suspect (Slattery) to raise his hands at 

least twice. Slattery failed to respond, turned his head slowly 
_______________

Use of Force – Legal Aspects

540

and looked at Rizzo who then yelled ―police officer, get your 

hands up now.‖ Slattery‘s hand was partially closed around an 

object. Slattery again turned his head slowly towards Rizzo and 

turned away. Rizzo again ordered Slattery to put his hands up. 

Slattery then turned his entire upper body towards Rizzo. Rizzo 

could not see Slattery‘s left hand. Believing Slattery was 

coming at him with a weapon, Rizzo shot him in the face. The 

object in Slattery‘s hand was a beer bottle. The circuit court 

held that Rizzo was entitled to qualified immunity because a 

reasonable officer could have had probable cause to believe 

Slattery posed a deadly threat, and therefore deadly force was 

authorized.
_______________

Index

i

INDEX

1

16 U.S.C. § 1a-6

national park service

jurisdiction, 8

park police

arrest authority, 12

16 U.S.C. § 1a-6(b)(3)national park 

service

arrest authority, 11

16 U.S.C. § 559

forest service

arrest authority, 11

16 U.S.C. § 668dd(g)

fish and wildlife service

arrest authority, 11

16 U.S.C. § 831c (3) (c)

tennessee valley authority

jurisdiction, 9

16 U.S.C. § 831c-3(b)(2)(A)

tennessee valley authority

arrest authority, 12

16 U.S.C. §§ 1531 – 1543

Endangered Species Act, 28

16 U.S.C. §§ 3371-3378

Lacey Act, 27

16 U.S.C. §§ 470aa

Archaeological Resources 

Protection Act, 29

16 U.S.C. §§ 472b, 668dd (g), 3375b

US fish and wildlife/national marine 

fisheries service

jurisdiction, 10

16 U.S.C. §§ 559, 559c, 559d

USDA forest service

jurisdiction

16 U.S.C. §§ 668-668d

Bald Eagle Protection Act, 29

16 U.S.C. §1377

Marine Mammal Protection Act, 28

18 U.S.C. § 1001, 177

18 U.S.C. § 111, 148, 149, 150

18 U.S.C. § 1111, 144

18 U.S.C. § 1114, 148, 149

18 U.S.C. § 13, 146

18 U.S.C. § 1341

mail fraud, 203

venue, 215

18 U.S.C. § 1343

wire fraud, 207

venue, 215

18 U.S.C. § 1503, 190, 196

judicial officers and jurors, 190

omnibus clause, 190, 196

18 U.S.C. § 1510, 191

bribery, 191

criminal investigations, 191

18 U.S.C. § 1512, 192, 194, 196, 197

extraterritorial jurisdiction, 194, 196

witness intimidation, 192

18 U.S.C. § 1513, 195

extraterritorial jurisdiction, 196

witness retaliation, 195, 196

18 U.S.C. § 2(a)

aiding and abetting, 51

18 U.S.C. § 2(b)

causing a crime, 52

18 U.S.C. § 201, 151, 152

bribery, 151

gratuities, 154

18 U.S.C. § 2311, 211

value, 211

18 U.S.C. § 2314, 209

counterfeit securities, 213

interstate transport of stolen 

property, 209

National Stolen Property Act

venue, 215

National Stolen Property Act, 209

travel fraud, 212

venue, 215

18 U.S.C. § 241, 37, 435

Conspiracy Against Civil Rights, 37

18 U.S.C. § 242, 437

18 U.S.C. § 2510 et seq

omnibus crime control and safe 

streets act of 1968, 219

18 U.S.C. § 2510(7)

title III

court order

who can apply, 222
_______________

Index

ii

18 U.S.C. § 2510

title III

court order

who can issue, 227

18 U.S.C. § 2511

title III

exemptions

wire and electronic 

communications, 229

18 U.S.C. § 2516

title III

enumerated crimes, 222

18 U.S.C. § 2518

title III

court order

application contents

18 U.S.C. § 2703

basic subscriber information

defined, 240

subpoena, 242

contents

court order, 244

subpoena, 245

transactional records

court order, 242

defined, 241

18 U.S.C. § 2703(f)

preservation order, 245

18 U.S.C. § 3

accessory after the fact, 52

18 U.S.C. § 3105, 123

computers, 477

18 U.S.C. § 3109

knock and announce, 352, 354

computers, 478

18 U.S.C. § 3117

electronic tracking devices, 232

18 U.S.C. § 3121 et seq

pen register, 236

18 U.S.C. § 3146

bail jumping, 265

18 U.S.C. § 3237

venue, 215

18 U.S.C. § 3282

statute of limitations, 46

18 U.S.C. § 3559, 145

18 U.S.C. § 371, 37

conspiracy, 37

18 U.S.C. § 3771, 199

justice for all act, 199

18 U.S.C. § 4

misprision of a felony, 53

18 U.S.C. § 530B

McDade amendment, 505

18 U.S.C. § 641, 181

conversion, 185

embezzlement, 183

receipt of stolen property, 186

theft, 181, 182

felony, 182

theft of government property

misdemeanor, 182

18 U.S.C. § 7

special maritime and territorial 

jurisdiction, 7

18 U.S.C. § 922(a)(4), 162

18 U.S.C. § 922(g), 157

18 U.S.C. § 924(c)(1), 160

crime of violence, 160

drug trafficking crime, 160

18 U.S.C. § 930, 161

18 U.S.C. §§ 3121 et seq

trap and trace device, 236

18U.S.C. § 3282

statute of limitations, 298

2

21 U.S.C. § 812, 167

controlled substances

schedules, 167

21 U.S.C. § 841, 169

penalty, 170

21 U.S.C. § 844, 168

penalty, 170

21 U.S.C. § 846, 37

drug conspiracy, 37

3

36 C.F.R. 2.1

Preservation of Natural, Cultural 

and Archeological Resources, 17

36 C.F.R. 2.2

Wildlife Protection, 19

36 C.F.R. 2.3

Fishing, 21
_______________

Index

iii

36 C.F.R. 2.31

Trespassing, Tampering and 

Vandalism, 23

36 C.F.R. 2.34

Disorderly Conduct, 24

36 C.F.R. 3.5

Inspections, 30

36 C.F.R. 3.6

Prohibited Operations, 25

36 C.F.R. 4.2

State Law Applicable, 26

4

42 U.S.C. § 1983, 440

43 U.S.C. § 1733(c)

bureau of land management

jurisdiction, 9

43 U.S.C. § 373b

bureau of reclamation

arrest authority, 13

jurisdiction, 9

43 U.S.C. §§ 1733(c)(1) and (2)

bureau of land management

arrest authority, 12

A

abandoned government property, 

183

abandoned property

REP, 315

absolute immunity, 446

Federal Tort Claims Act, 453

FTCA, 453

accessory after the fact

18 U.S.C. § 3, 52

actual border, 412

actual possession

controlled substances, 169

adjudicated mentally defective

firearms

prohibited person, 158

administrative search, 405

airport, 408

security checkpoint, 408, 409

border, 409

actual, 412

extended, 414

functional equivalent, 412

non-routine, 411

routine, 410

business inspection, 406

general crime checkpoint, 406

government facility, 408

information checkpoint, 406

license checkpoint, 405

sobriety checkpoint, 405

admissible evidence, 96

Federal Rules of Evidence, 96

advocating imminent lawlessness

freedom of speech, 67, 89, 90

agency specific jurisdiction

bureau of land management, 9

bureau of reclamation, 9

DOD land management officers, 10

land management, 8

national park service, 8

tennessee valley authority, 9

US fish and wildlife/national marine 

fisheries service, 9

US park police, 9

USDA forest service, 8

Aguilar

confidential informants, 335, 337

aiding and abetting

18 U.S.C. § 2(b), 51

aircraft overflights, 317

airport search, 408

security checkpoint, 408, 409

amendments

Constitution, 65

Bill of Rights, 65

bail, 77

confront witnesses, 76

double jeopardy, 73

due process of law, 75

freedom of assembly, 69

freedom of religion, 66

freedom of speech, 67, 79

fundamental rights, 78

grand jury indictment, 75

informed of charges, 76

right to counsel, 76

searches and seizures, 70

self-incrimination, 74

speedy trial, 75

venue, 77
_______________

Index

iv

witness compulsory process, 

76

anonymous tip

basis of knowledge, 321

reliability, 321

anticipatory search warrant, 372

anything of value

bribery, 151, 152, 153, 154

apartment

REP, 312

apparent authority, 399

computers, 463

Archaeological Resources 

Protection Act

16 U.S.C. §§ 470aa, 29

arguable probable cause, 443

arraignment, 275

waiver, 275

arrest, 318

authority, 348

citizen’s arrest authority, 348

de facto, 323

federal warrant

execution, 349

foreign nationals, 269

consular access, 270

mandatory notification, 270

requested notification, 270

juvenile, 272

initial appearance, 272

Miranda, 273

members of congress, 271

breach of peace, 272

felony, 272

peace officer status, 348

pointing weapon, 515

probable cause, 328

speedy trial act, 300

state warrant

execution, 349

statutory authority, 348

warrant, 345

criminal complaint, 345

entering a home, 350

execution, 346, 347

form, 346

indictment, 345

information, 345

no knock warrants, 358

return, 347

suspect’s home, 350

third party’s home, 351

warrantless, 351

felonies, 351

misdemeanors, 351

arrest authority

bureau of land management, 12

bureau of reclamation, 13

citizen’s arrest, 15

cross designation, 13, 14

DOD land management officers, 12

national marine fisheries, 12

national park service, 11

peace officer status, 14

state offenses, 13

citizen’s arrest authority, 15

peace officer status, 14

tennessee valley authority, 11

US fish and wildlife service, 11

US park police, 12

USDA forest service, 11

arrest warrant, 257, 345

criminal complaint, 259, 345

execution, 346, 347

entering a home, 350

suspect’s home, 350

third party’s home, 351

federal, 349

form, 346

indictment, 259, 345

information, 260, 345

no knock warrants, 358

return, 347

state, 349

assault, 147

18 U.S.C. § 111, 148, 149, 150

attempt, 147, 149, 150

civil liability, 452

deadly weapon, 150

forcibly, 148, 149

present apparent ability, 147, 

149

intentional tort, 452

offensive touching, 147, 150

offer, 147, 149

official duties, 148, 149, 150
_______________

Index

v

penalty, 150

deadly weapon, 150

present apparent ability, 147, 149

simple, 150

threat, 147, 149

Assimilative Crimes Act, 13, 143, 

145, 146

18 U.S.C. § 13, 146

jurisdiction, 13, 145

concurrent, 146

exclusive, 146

proprietary, 146

assumption of risk

negligent torts

defenses, 458

attempt to commit a crime, 50

attempted assault, 147, 149, 150

attorney-client privilege, 108, 109

B

bagging and tagging

evidence, 114

bail

Bill of Rights, 77

conditional release, 264

eighth amendment, 77

pretrial release, 263

bail jumping, 265

18 U.S.C. § 3146, 265

Bald Eagle Protection Act

16 U.S.C. §§ 668-668d, 29

basis of knowledge

anonymous tip, 321

confidential informants, 336

informant, 321

battery, 147, 148, 150

bodily injury, 150

civil liability, 452

intentional tort, 452

offensive touching, 147, 150

best evidence rule, 116

computer evidence, 125

digital evidence, 125

duplicate, 117

original, 117

bias, 104

Bill of Rights, 65

bail, 77

confront witnesses, 76

double jeopardy, 73

due process of law, 75

freedom of assembly, 69

freedom of religion, 66

establishment clause, 66

free exercise clause, 66

freedom of speech, 67, 79

fundamental rights, 78

grand jury indictment, 75

informed of charges, 76

right to counsel, 76

searches and seizures, 70

self-incrimination, 74

speedy trial, 75

venue, 77

witness compulsory process, 76

binoculars, 317

Bivens

analogy, 442

civil action, 441

common incidents, 442

excessive force, 444

failure to intervene, 445

false affidavit, 443

unlawful arrest, 442

unlawful search, 442

unlawful arrest

arguable probable cause, 443

unlawful search

arguable probable cause, 443

bodily injury, 150

booking questions exception

Miranda warnings, 495

border search, 409

actual border, 412

extended border, 414

functional equivalent, 412

non-routine, 411

routine, 410

Brady

discovery, 290, 292

bribery, 151

18 U.S.C. § 1510, 191

anything of value, 151, 152, 153, 

154

gifts, 154

directly or indirectly, 151, 152, 153

intent to influence, 151, 152, 153, 

154
_______________

Index

vi

official act, 151, 153, 154

public official, 151, 153, 154

testimony, 152

witness, 151, 152, 153

18 U.S.C. § 1510, 191

bureau of land management

arrest authority, 12

43 U.S.C. §§ 1733(c)(1) and (2), 

12

jurisdiction, 9

43 U.S.C. § 1733(c), 9

subject matter jurisdiction, 12

bureau of reclamation

arrest authority, 13

43 U.S.C. § 373b, 13

jurisdiction, 9

43 U.S.C. § 373b, 9

subject matter jurisdiction, 13

business inspection, 406

business records

foundations, 116

hearsay, 119

self-authentication, 118

C

canine sniffs, 317

Carroll doctrine, 388

prerequisites, 389

rationale, 389

scope, 391

timing, 390

case in chief

procedural stages

criminal trial, 97

causing a crime

18 U.S.C. § 2(b), 52

cell phones

inventory search, 471

search incident to arrest, 469

certification

scope of employment

FTCA, 457

chain of custody

evidence, 114

challenging a foundation

evidence, 115

change of venue, 297

checks and balances, 63

chemical sprays

use of force, 526, 530

examples, 532, 533, 534, 535, 

536

excessive, 530, 531

reasonable, 531, 532

circuit courts of appeals, 253

en banc, 254

judges, 256

panels, 254

circumstantial evidence, 101

citation, 258, 289

citizen’s arrest authority, 15, 348

civil action

Bivens, 441

Bivens analogy, 442

civil liability, 432, 434

Bivens

arguable probable cause, 443

common incidents, 442

excessive force, 444

failure to intervene, 445

false affidavit, 443

unlawful arrest, 442

unlawful search, 442

intentional tort, 451, 454

assault, 452

battery, 452

conversion, 453

damage to land, 453

damage to personal property, 

453

defenses, 458

emotional distress, 452

false arrest, 452

false imprisonment, 452

to property, 452

to the person, 452

negligent tort, 448, 453

defenses, 458

elements, 448

state law, 448

tort, 434

civil rights, 433

clear and present danger

freedom of speech, 67, 90
_______________

Index

vii

clearly established right

qualified immunity, 447, 448, 538

clergy-communicant privilege, 108, 

111

closing argument

procedural stages

criminal trial, 98

co-conspirator’s statement, 43

hearsay, 121

Code of Federal Regulations

36 C.F.R. 2.1

Preservation of Natural, Cultural 

and Archeological Resources, 

17

36 C.F.R. 2.2

Wildlife Protection, 19

36 C.F.R. 2.3

Fishing, 21

36 C.F.R. 2.31

Trespassing, Tampering and 

Vandalism, 23

36 C.F.R. 2.34

Disorderly Conduct, 24

36 C.F.R. 3.5

Inspections, 30

36 C.F.R. 3.6

Prohibited Operations, 25

36 C.F.R. 4.2

State Law Applicable, 26

land management, 3, 15

collective entities

right to remain silent, 500

self-incrimination, 500

collective knowledge, 321

common law, 144, 147

comparitive negligence

negligent torts

defenses, 458

computer evidence

best evidence rule, 125

foundations, 123, 480

hearsay, 125

computer searches, 460

computers

3

rd party possession

REP, 463

consent search, 463

authority, 463

implied consent, 465

scope, 463, 464

third party consent, 464

voluntary, 463

inventory search, 470

standardized policy, 471

losing REP, 462

exposure to public, 462

plain view doctrine, 467

right to be, 467, 468

private search, 461

REP, 461

3

rd party possession, 463

losing, 462

exposure to public, 462

stolen, 462

search

exigent circumstances, 466

search incident to arrest, 468

search warrant, 471

execution, 477

who, 477

independent component 

doctrine, 472

knock and announce, 478

multiple warrants, 476

off-site search, 474

scope, 472, 473

systems, 471

time limitations, 479

within the district, 476

stolen

REP, 462

concurrent jurisdiction, 146

land management, 5

conditional release

pretrial release, 264

condo

REP, 312

confidential informants, 335

Aguilar, 335, 337

basis of knowledge, 336

credibility, 335

consistency between informants, 

336

corroboration, 335

degree of detail, 336

face to face, 336

first hand information, 336

statements against interest, 335
_______________

Index

viii

track record, 321, 335

reliability, 335

consistency between informants, 

336

corroboration, 335

degree of detail, 336

face to face, 336

first hand information, 336

statements against interset, 335

track record, 335

confront witnesses

Bill of Rights, 76

consensual encounter, 318

consent

defenses

intentional torts, 458

consent search, 396

authority, 399

computers, 463

computers, 463

authority, 463

scope, 463, 464

voluntary, 463

implied consent

computers, 465

requirements, 397

authority, 399

voluntary, 397

scope, 400

third party, 400

computers, 464

husband-wife, 401

parent-child, 401

roommate, 402

voluntary, 397

computers, 463

conspiracy, 33

18 U.S.C. § 241

elements, 435, 436

18 U.S.C. § 371, 37

co-conspirator’s statement, 43

doctrine of merger, 43

elements, 38

complete, 38

knowledge and intent, 39

overt act, 42

the agreement, 40

two or more persons, 39

unlawful objective, 41

late joiner, 45

penalty, 38

Pinkerton Theory, 43

statute of limitations

18 U.S.C. § 3282, 46

venue, 47

withdrawal, 45

conspiracy against rights

18 U.S.C. § 241

elements, 435

Constitution, 55

amendments, 65

Bill of Rights, 65

bail, 77

confront witnesses, 76

double jeopardy, 73

due process of law, 75

freedom of assembly, 69

freedom of religion, 66

freedom of speech, 67, 79

fundamental rights, 78

grand jury indictment, 75

informed of charges, 76

right to counsel, 76

searches and seizures, 70

self-incrimination, 74

speedy trial, 75

venue, 77

witness compulsory process, 

76

eighth, 77

fifth, 72

first, 65, 79

fourteenth, 78

fourth, 70

sixth, 75

checks and balances, 63

executive branch, 62

judicial branch, 63

legislative branch, 60

living document, 57

Constitutional tort, 439

scope of employment, 458

Constitutional torts

scope of employment

FTCA, 458

constructive possession

controlled substances, 169
_______________

Index

ix

containers

REP, 312

contradiction

impeachment, 105

contributory negligence

negligent torts

defenses, 458

controlled substances

21 U.S.C. § 812, 167

21 U.S.C. § 841, 169

21 U.S.C. § 844, 168

actual possession, 169

constructive possession, 169

distribution, 169

intent to distribute, 169

manufacture, 169

penalty, 170

possession, 168

unlawful, 168

schedules, 167

conversion

civil liability, 453

intentional tort, 453

conversion of government 

property, 185

convicted felon

firearms

prohibited person, 157

counsel

right to

sixth amendment, 76

counterfeit securities

intent to defraud, 215

interstate or foreign commerce, 214

knowledge, 215

court documents

arrest warrant, 257

criminal complaint, 259

indictment, 259

information, 260

citation, 258, 289

criminal complaint, 256, 289

initial appearance, 259

indictment, 257, 288

information, 257, 288, 289

summons, 258

initial appearance, 260

ticket, 258, 289

credibility

confidential informants, 335

consistency between informants, 

336

corroboration, 335

degree of detail, 336

face to face, 336

first hand information, 336

statements against interest, 335

track record, 321, 335

witness, 103

bias, 104

contradiction, 105

impeachment, 103

motive to lie, 105

physical or mental incapacity, 

105

prior conviction, 106

prior inconsistent statement, 105

specific instances of 

untruthfulness, 105

crime

definition, 434

criminal act, 143, 144

criminal activity afoot, 320

criminal attempt, 50

criminal complaint, 256, 289

arrest warrant, 259

initial appearance, 259

criminal law, 143

act, 143, 144

common law, 144, 147

elements, 143, 144

felony, 143

defined, 145

intent, 144

jurisdiction, 13, 143, 145, 146

knowlingly, 145

misdemeanor, 143, 145

defined, 145

motive, 144

penalty, 145, 150

statutory law, 143, 144, 145

criminal trial

procedural stages, 96

case in chief, 97

closing argument, 98
_______________

Index

x

defense case, 97

jury instructions, 98

opening statements, 97

rebuttal case, 97

sentencing, 98

suppression motion, 96

voir dire, 97

cross designation

arrest authority, 14

arrest authority, 13

subject matter jurisdiction, 14

subject matter jurisdiction, 13

cross-examination, 135, 136

badgering, 137

compound questions, 138

conflicting testimony, 139

friendly defense counsel, 139

mistakes, 138, 140

possibilities, 139

pretrial discussions, 137

previous lies, 140

prior inconsistent statement, 140

rapid fire questions, 138

repetitive questions, 137

testifying for the witness, 136

twisting prior testimony, 139

volunteering information, 137

yes or no answer, 136

current federal employee, 148, 150

curtilage

REP, 313

custody

Miranda warnings, 488

incarcerated person, 490

intent to arrest, 490

police station, 490

search warrant, 490

Terry stop, 489

traffic stop, 489

tantamount to formal arrest

Miranda warnings, 489

D

damage to land

civil liability, 453

intentional tort, 453

damage to personal property

civil liability, 453

intentional tort, 453

deadly force, 516

agency policy, 526

defined, 516

examples, 521

unarmed suspect, 521, 523, 524

reasonableness, 517

fear for life, 519

lesser forms, 520

offense level, 520

retreat, 520

Scott v. Harris, 517, 519

Tennessee v. Garner, 518, 519

verbal warning, 520

warning shots, 520

deadly weapon, 150

deception

knock and announce, 357

Miranda waiver, 492

voluntary statements, 484

defendant’s statement

hearsay, 121

defense case

procedural stages

criminal trial, 97

defense discovery, 289

Brady, 290, 292

continuing duty, 295

Giglio, 290, 292, 293

Jencks Act, 290, 294

reciprocal, 291

Rule 16, 290, 291

Rule 26.2, 290, 295

sanctions, 295

defense of others

defenses

intentional torts, 458

defenses

Federal Tort Claims Act, 458

FTCA, 458

intentional torts

consent, 458

defense of others, 458

Federal Tort Claims Act, 458

FTCA, 458

necessity, 459

self-defense, 458

negligent torts

assumption of risk, 458

comparative negligence, 458
_______________

Index

xi

contributory negligence, 458

Federal Tort Claims Act, 458

FTCA, 458

demonstrative evidence, 96

deportation proceedings

right to remain silent, 501

self-incrimination, 501

deprivation of rights

18 U.S.C. § 242

elements, 437, 438

specific intent, 439

under color of law, 437, 438

42 U.S.C. § 1983, 440

under color of law, 440

civil action, 440

criminal action, 437

specific intent, 439

under color of law, 437, 438, 440

destruction of evidence, 394

computers, 467

destructive device, 163

detention hearing

pretrial release, 264

bail jumping, 265

digital evidence

best evidence rule, 125

foundations, 123, 124, 480

hearsay, 125

diplomatic immunity, 266

diplomatic security command 

center, 267

incident reports

protective liaison division, 268

traffic incidents, 267

verifying status, 267

diplomatic security command 

center, 267

direct evidence, 101

direct examination, 135

directly or indirectly, 151, 152, 153

discovery, 289

Brady, 290, 292

continuing duty, 295

Giglio, 290, 292, 293

Jencks Act, 290, 294

reciprocal, 291

Rule 16, 290, 291

Rule 26.2, 290, 295

sanctions, 295

dishonorably discharged

firearms

prohibited person, 158

distribution

controlled substances, 169

district court, 255

felony trials, 255, 256

doctrine of merger

conspiracy, 43

documents

right to remain silent, 500

third parties, 501

self-incrimination, 500

third parties, 501

DOD land management officers

arrest authority, 12

jurisdiction, 10

subject matter jurisdiction, 12

dog sniffs, 317

domestic relations restraining 

order

firearms

prohibited person, 158

domestic violence misdemeanor 

conviction

firearms

prohibited person, 159

double jeopardy, 73

dual sovereignty, 73

mistrial, 73

nolle prosequi, 73

remand, 74

driver’s license checkpoint, 405

drug offenses, 167

drug user-addict

firearms

prohibited person, 158

drugs

21 U.S.C. § 812, 167

21 U.S.C. § 841, 169

21 U.S.C. § 844, 168

21 U.S.C. § 846

conspiracy, 37

actual possession, 169

constructive possession, 169

distribution, 169

intent to distribute, 169

manufacture, 169
_______________

Index

xii

penalty, 170

possession

unlawful, 168

schedules, 167

dual sovereignty, 73

due process of law

Bill of Rights, 75

identification procedures, 506

line-ups, 507

photo arrays, 507

show-ups, 507, 508

E

eighth amendment

bail, 77

Constitution, 77

electronic communications, 220

defined, 221

electronic communications privacy 

act of 1986, 220

stored access communications act, 

240

electronic law and evidence, 217

electronic pagers

search incident to arrest, 469

electronic tracking devices

18 U.S.C. § 3117, 232

installation, 232

government property, 233

vehicles, 233

warrants, 235

monitoring, 234

no REP, 234

REP area, 234

warrants, 235

warrants

FRE 41, 235

elements, 143, 144

conspiracy, 38

complete, 38

knowledge and intent, 39

overt act, 42

the agreement, 40

two or more persons, 39

unlawful objective, 41

negligent tort, 448

breach of duty, 450

causation, 451

damages, 451

duty, 449

embezzlement of government 

property, 183

emergency scene, 395

crime scene, 396

murder scene, 396

emotional distress

civil liability, 452

intentional tort, 452

enabling legislation

land management, 3, 15

Endangered Species Act

16 U.S.C. §§ 1531 – 1543, 28

enhanced penalties

firearms, 161

brandishing, 161

discharging, 161

possessing, 161

entrapment, 171

affirmative defense, 172

inducement, 172

permitted, 173

prohibited, 173

predisposition, 172, 173, 174

course of similar conduct, 174

excessive amounts of money, 

175

extreme appeals to emotion, 175

previously formed intent, 174

ready response, 175

threats, 175

establishment clause

religion

first amendment, 66

evidence, 93

admissibility, 96

Federal Rules of Evidence, 96

bagging and tagging, 114

best evidence rule

computer evidence, 125

digital evidence, 125

duplicate, 117

original, 117

chain of custody, 114

circumstantial, 101

demonstrative, 96

direct, 101

expert testimony, 102
_______________

Index

xiii

forms, 95

circumstantial, 101

demonstrative, 96

direct, 101

real, 95

testimonial, 95

foundations, 113

best evidence rule, 116

business records or public 

documents, 116

challenge, 115

computer evidence, 123, 480

digital evidence, 124

laying, 114

self-authentication, 118

lay person testimony, 102

emotional condition, 103

handwriting, 103

voice, 103

real, 95

relevant, 98

other crimes or acts, 99

identity, 100

impeachment, 100

intent, 99

knowledge, 100

modus operandi, 100

motive, 99

opportunity, 100

plan or preparation, 100

predisposition, 101

testimonial, 95, 485

evidentiary foundations, 113

best evidence rule, 116

computer evidence, 125

digital evidence, 125

duplicate, 117

original, 117

business records or public 

documents, 116

challenge, 115

computer evidence, 123, 480

digital evidence, 124

laying, 114

self-authentication, 118

business records, 118

public documents, 118

excessive force

Bivens

civil liability, 444

civil liability

Bivens, 444

excited utterance

hearsay exception, 121

exclusionary rule, 337

exceptions

foreign searches, 339

good faith, 339

impeachment, 338

inevitable discovery, 342

miscellaneous, 343

no standing, 338

exclusive jurisdiction, 146

land management, 5

executive branch, 62

exigent circumstance

computers, 466

destruction of evidence, 394

computers, 467

emergency scene, 395

crime scene, 396

murder scene, 396

hot pursuit, 393

immediate or continuous, 393

PC, 393

public place, 394

serious crime, 393

expert opinion, 102

expert testimony, 102

expungement or pardon, 159

extended border, 414

extradition, 297

extraterritorial jurisdiction

18 U.S.C. § 1512, 194, 196

18 U.S.C. § 1513, 196

F

failure to intervene

Bivens

civil liability, 445

civil liability

Bivens, 445

false affidavit

Bivens

civil liability, 443
_______________

Index

xiv

civil liability

Bivens, 443

false arrest

civil liability, 452

intentional tort, 452

false imprisonment

civil liability, 452

intentional tort, 452

false statements, 177

18 U.S.C. § 1001, 177

elements, 177

exculpatory no, 179

federal matter, 177

judicial proceeding, 178

legislative branch, 178

intent to decieve, 179

material fact, 179

federal circuits, 253

federal communications act of 

1934, 219

federal court

circuit courts of appeals, 253

en banc, 254

judges, 256

panels, 254

district, 252

district court, 255

felony trials, 255, 256

documents

arrest warrant, 257

criminal complaint, 259

indictment, 259

information, 260

citation, 258, 289

criminal complaint, 256, 289

initial appearance, 259

indictment, 257, 288

information, 257, 288, 289

summons, 258

initial appearance, 260

ticket, 258, 289

magistrate court, 255

felony cases, 255

misdemeanor trials, 255, 256

supreme court, 253

federal rules of criminal 

procedure, 253

justices, 256

writ of certiorari, 253

federal court procedures, 249

arraignment, 275

classification of offenses

felony, 254

misdemeanor, 254

petty offense, 254

defense discovery, 289

detention hearing, 264

extradition, 297

formal charging documents, 288

grand jury, 275

identity hearing, 266

initial appearance, 259

jurisdiction, 296

preliminary hearing, 273

removal, 297

removal hearing, 266

sentencing, 300

pre sentence investigation(PSI), 

301

pre sentence report(PSR), 301

U.S. Probation and Pretrial 

Services Office, 301

speedy trial act, 298, 299

arrest, 300

statute of limitations, 298

18 U.S.C. § 3282, 298

continuing offenses, 299

defined, 298

tolling

formal charging, 298

fugitive, 299

transfer, 297

venue, 296

change, 297

federal districts, 252

federal employee, 148

18 U.S.C. § 1114, 148, 149

assault, 147, 148, 149, 150

current, 150

former, 148, 149

federal facility

firearms, 161

Federal Good Samaritan Act

Federal Tort Claims Act, 455

FTCA, 455

federal privileges, 108

Federal Rules of Evidence, 96
_______________

Index

xv

Federal Tort Claims Act, 453

absolute immunity, 453

administrative remedies, 457

Constitutional torts, 458

defenses, 458

federal agency, 453

Federal Good Samaritan Act, 455

government employee, 453

intentional torts, 454

defenses, 458

consent, 458

defense of others, 458

necessity, 459

self-defense, 458

investigative or law enforcement 

officer, 454

lawsuit, 457

negligent torts, 453

defenses, 458

assumption of risk, 458

comparitive negligence, 458

contributory negligence, 458

scope of employment, 454

certification, 457

government vehicles, 456

sovereign immunity, 453

federal warrant

arrest

execution, 349

felony, 143, 254

defined, 145

warrantless arrest, 351

fifth amendment, 506

Constitution, 72

double jeopardy, 73

dual sovereignty, 73

mistrial, 73

nolle prosiqui, 73

remand, 74

due process

identification procedures, 506

line-ups, 507

photo arrays, 507

show-ups, 507, 508

due process of law, 75

grand jury indictment, 75

privilege, 108

self-incrimination, 74

Fifth Amendment, 481, 486

fighting words, 67, 86

contempt of cop, 87

firearms

18 U.S.C. § 922(a)(4), 162

registration, 162

18 U.S.C. § 930, 161

federal facility, 161

definition, 157

destructive device, 163

enhanced penalties, 161

brandishing, 161

discharging, 161

possessing, 161

federal facility, 161

machine gun, 163

mandatory penalties

18 U.S.C. § 924(c)(1), 160

crime of violence, 160

drug trafficking crime, 160

prohibited persons, 157

18 U.S.C. § 922(g), 157

adjudicated mentally defective, 

158

convicted felon, 157

dishonorably discharged, 158

domestic relations restraining 

order, 158

domestic violence misdemeanor 

conviction, 159

drug user-addict, 158

fugitive from justice, 158

illegal or non-permanent resident 

alien, 158

pardon or expungement, 159

renounced citizenship, 158

registration

destructive device, 163

machine gun, 163

short-barrel rifle, 163

short-barrel shotgun, 162

silencer, 163

short-barrel rifle, 163

short-barrel shotgun, 162

silencer, 163

tracing, 164

information gained, 165

required information, 164
_______________

Index

xvi

first amendment

Constitution, 65, 79

freedom of assembly, 69

freedom of religion, 66

freedom of speech, 67, 79

advocating imminent 

lawlessness, 67, 89, 90

clear and present danger, 67, 90

content based restrictions, 82

content neutral restrictions, 83

expression, 80

fighting words, 67, 86

fraud, perjury, libel, and slander, 

69

government action, 79

non-public forums, 83

obscenity, 68, 91

permits, 84

public forums, 83, 84

true threats, 69, 87, 88

unprotected conduct, 84

unprotected speech, 85

fish and wildlife service

arrest authority, 11

16 U.S.C. § 668dd(g), 11

subject matter jurisdiction, 11

fish and wildlife/national marine 

fisheries service

jurisdiction, 9

16 U.S.C. §§ 472b, 668dd (g), 

3375b, 10

flashlights

search, 317

foreign nationals

appointment of guardian

mandatory notification, 271

arrest, 269

consular access, 270

mandatory notification, 270

requested notification, 270

death

mandatory notification, 271

ship or aircraft accident

mandatory notification, 271

vienna convention on consular 

relations, 269

appointment of guardian, 271

arrest, 269, 270

death, 271

ship or aircraft accident, 271

foreign searches

exclusionary rule

exception, 339

forest service

arrest authority, 11

16 U.S.C. § 559, 11

jurisdiction, 8

16 U.S.C. §§ 559, 559c, 559d, 8

subject matter jurisdiction, 11

formal charging documents, 288

criminal complaint, 289

indictment, 288

information, 288, 289

former federal employee, 148, 149

foundations

best evidence rule

computer evidence, 125

digital evidence, 125

duplicate, 117

original, 117

computer evidence, 123, 480

digital evidence, 124

evidence, 113

best evidence rule, 116

business records or public 

documents, 116

self-authentication, 118

business records, 118

public documents, 118

Fourteenth amendment

Constitution, 78

fundamental rights, 78

Fourth amendment

Constitution, 70

searches and seizures, 70

Fourth Amendment, 303, 307

administrative search, 405

border, 409

driver’s license checkpoint, 405

general crime control, 406

arrest, 323, 328, 348

pointing weapon, 515

arrest warrant, 345

Carroll Doctrine, 388

consent search, 396

computers, 463

exclusionary rule, 337
_______________

Index

xvii

exigent circumstance, 357, 392

computers, 466

government action, 307, 461

inventory search, 402

cell phones, 471

computers, 470

knock and announce, 352

mobile conveyance exception, 388

plain view doctrine, 343

computers, 467

private conduct, 313

probable cause, 333

protective sweep, 359

reasonable

use of force, 512

reasonable expectation of privacy, 

308

computers, 461

reasonable suspicion, 319

search, 308

search incident to arrest, 362

cell phones, 469

computers, 468

electronic pagers, 469

PDAs, 470

search warrant, 367

computers, 471

seizure, 318

Terry frisk, 324

Terry stop, 319

use of force

factors, 513

use of race

DOJ guidance, 328

fraud

lulling letters, 205

scheme to defraud, 204

fraud statutes, 201

fraud, perjury, libel, and slander

freedom of speech, 69

FRE 41

electronic tracking devices

warrants, 235

freedom of assembly, 69

freedom of religion, 66

establishment clause, 66

free exercise clause, 66

freedom of speech, 67, 79

expression, 80

government action, 79

government regulation

advocating imminent 

lawlessness, 67, 89, 90

clear and present danger, 67, 90

content based, 82

content neutral, 83

fighting words, 67, 86

fraud, perjury, libel, and slander, 

69

non-public forums, 83

obscenity, 68, 91

permits, 84

public forums, 83, 84

true threats, 69, 87, 88

unprotected conduct, 84

unprotected speech, 85

FTCA, 453

absolute immunity, 453

administrative remedies, 457

Constitutional torts, 458

defenses, 458

federal agency, 453

Federal Good Samaritan Act, 455

government employee, 453

intentional torts, 454

defenses, 458

consent, 458

defense of others, 458

necessity, 459

self-defense, 458

investigative or law enforcement 

officer, 454

lawsuit, 457

negligent torts, 453

defenses, 458

assumption of risk, 458

comparative negligence, 458

contributory negligence, 458

scope of employment, 454

certification, 457

government vehicles, 456

sovereign immunity, 453

fugitive from justice

firearms

prohibited person, 158

functional equivalent of the border, 

412
_______________

Index

xviii

fundamental rights

Bill of Rights, 78

fourteenth amendment, 78

G

garbage

REP, 316

Gates

totality of the circumstances

probable cause, 337

general crime checkpoint, 406

gifts, 151, 154

Giglio

discovery, 290, 292, 293

good faith

exclusionary rule

exception, 339

Good Samaritan Act

Federal Tort Claims Act, 455

FTCA, 455

government

checks and balances, 63

executive branch, 62

judicial branch, 63

legislative branch, 60

government action, 307, 461

government employees

right to remain silent, 501

self-incrimination, 501

government facility search, 408

government property

abandoned, 183

conversion, 185

embezzlement, 183

receipt of stolen, 186

steals, 183

theft, 181, 182

government vehicles

scope of employment

Federal Tort Claims Act, 456

government workplace

defined, 417

REP, 418

job position, 423

openness and accessibility, 422

practices and procedures, 421

prior notice, 419

waiver, 424

search, 416

criminal evidence, 428

dual purpose, 429

employee misconduct, 426

justified at inception, 427

non-investigatory purpose, 426

permissible scope, 428

plain view, 428

reasonableness, 424, 427

scope, 428

work-related purpose, 426

government workplaces

REP, 314

government-informant privilege, 

108, 112

Graham v. Conner

reasonable force, 512

grand jurors

qualifications, 276

selection, 276

grand jury, 275

access

another grand jury, 286

AUSAs, 285

civil matters, 285

Jencks Act, 286

law enforcement, 285

mixed information, 287

Patriot Act, 286

Rule 6(e) list, 286

accusatory, 276

grand jury matters, 285

indictment

no bill, 278

sealed, 279

true bill, 276, 278

investigatory, 276

members

qualifications, 276

selection, 276

post indictment powers, 279

process, 276

secret, 277

target, 277

purpose, 275

accusatory, 276

indictment, 276

investigatory, 276
_______________

Index

xix

secrecy, 277, 284

access, 285

AUSA, 285

court order, 285

exceptions, 285

private citizen, 285

rule 6(e), 284

subpoena, 279, 280

ad testificandum, 280

duces tecum, 280

items and things, 280

limitations, 281

obtaining, 283

quashing, 281

relevance, 281

requirements, 281

service, 280

witness, 280

target, 277

grand jury indictment

Bill of Rights, 75

infamous crimes, 75

H

handcuffing

use of force

reasonableness, 515

hearsay, 119

business records, 119

co-conspirator’s statement, 121

computer evidence, 125

defendant’s statement, 121

digital evidence, 125

exceptions, 121

excited utterance, 121

medical diagnosis, 122

public documents, 119

statement, 120

trial, 120

truth of matter asserted, 120

homes

REP, 311

hot pursuit, 393

immediate or continuous, 393

PC, 393

public place, 394

serious crime, 393

hotel room

REP, 312

husband-wife privilege, 108, 110

I

identification procedures

due process, 506

line-ups, 507

photo arrays, 507

show-ups, 507, 508

identity

other crimes or acts

relevant evidence, 100

identity hearing, 266

illegal or non-permant resident 

alien

firearms

prohibited person, 158

immunity, 446, 499

absolute, 446

Federal Tort Claims Act, 453

FTCA, 453

qualified, 446, 536, 537, 538

clearly established right, 447, 

448, 538

examples, 539

sovereign, 446

Federal Tort Claims Act, 453

FTCA, 453

transactional, 500

use, 499

impeachment, 103, 135

bias, 104

contradiction, 105

exclusionary rule

exception, 338

motive to lie, 105

other crimes or acts

relevant evidence, 100

physical or mental incapacity, 105

prior conviction, 106

prior inconsistent statement, 105

specific instances of untruthfulness, 

105

implied consent

computers, 465

incriminating statements, 485

independent component doctrine, 

472
_______________

Index

xx

indictment, 257, 288

arrest warrant, 259

grand jury

true bill, 276

no bill, 278

sealed, 279

sixth amendment

counsel, 503

true bill, 276, 278

inducement

entrapment, 172

permitted, 173

prohibited, 173

inevitable discovery

exclusionary rule

exception, 342

infamous crimes

grand jury indictment, 75

informant

basis of knowledge, 321

Miranda warnings, 487

reliability, 321

consistency between informants, 

336

corroboration, 335

degree of detail, 336

face to face, 336

first hand information, 336

statements against interest, 335

track record, 321, 335

sixth amendment counsel, 505

information, 257, 288, 289

arrest warrant, 260

sixth amendment

counsel, 503

information checkpoint, 406

informed of charges

Bill of Rights, 76

initial appearance, 76, 259

criminal complaint, 259

defendant’s rights, 262

federal judge, 259

identity hearing, 266

juvenile, 272

location

adjacent district, 265

district of the arrest, 265

district of the crime, 265

magistrate judge, 259

pretrial detention, 263

options, 263

pretrial services report, 263

pretrial release, 263

bail, 263

conditional, 264

detention hearing, 264

options, 263

own recognizance, 263

pretrial services report, 263

pretrial services report, 263

purpose, 262

removal hearing, 266

sixth amendment

counsel, 503

state or local judge, 260

timing, 261

warrantless arrest, 259

criminal complaint, 259

without unnecessary delay

statements, 261

inspection authority

land management, 30

national park service

36 C.F.R. 3.5, 30

intent, 144

other crimes or acts

relevant evidence, 99

intent to defraud

counterfeit securities, 215

interstate transport of stolen 

property, 213

ITSP, 213, 215

National Stolen Property Act, 213, 

215

intent to distribute

controlled substances, 169

intent to influence, 151, 152, 153, 

154

intentional tort, 451, 454

conversion, 453

defenses, 458

to property, 452

land, 453

personal, 453

to the person, 452

assault, 452

battery, 452
_______________

Index

xxi

emotional distress, 452

false arrest, 452

false imprisonment, 452

internal government investigations

right to remain silent, 501

self-incrimination, 501

interrogations, 483

McDade amendment, 505

Miranda warnings, 487

non-custodial, 498

immunity, 499

testimonial, 499

transactional, 500

use, 499

subpoenas to testify, 498

perjury, 500

represented parties, 505

sixth amendment

counsel, 502

offense specific, 504

interstate or foriegn commerce, 

210, 212, 214

counterfeit securities, 214

interstate transport of stolen 

property, 210

ITSP, 210, 212, 214

travel fraud, 212

interstate transport of stolen 

property, 209

intent to defraud, 213

interstate or foreign commerce, 210

knowledge, 211

securities, 213

transport, transfer, transmit, 210

value, 211

venue, 215

inventory search, 402

cell phones, 471

computers, 470

standardized policy, 471

justification, 403

location, 404

requirements, 403

lawful impoundment, 403

standardized policy, 403

scope, 404

investigative detention, 318, 319

duration, 322

reasonable suspicion, 319

anonymous tip, 321

collective knowledge, 321

informant, 321

justifying factors, 322

totality of the circumstances, 320

use of force, 323

vehicles, 326

duration, 327

permissible actions, 326

pretextual stop, 328

ITSP, 209

counterfeit securities, 213

intent to defraud, 213, 215

interstate transport of stolen 

property, 209

knowledge, 211, 215

securities, 213

travel fraud, 212

venue, 215

J

Jencks Act

discovery, 290, 294

grand jury matters, 286

grand jury testimony, 278

judicial branch, 63

judicial officers and jurors

obstruction

18 U.S.C. § 1503, 190

jurisdiction, 13, 143, 145, 146

bureau of land management, 9

bureau of reclamation, 9

concurrent, 5, 146

defined, 296

DOD land management officers, 10

exclusive, 5, 146

land management

agency specific, 8

special maritime and territorial, 

4, 7

subject matter, 10

territorial, 4

concurrent, 5

exclusive, 5

proprietary, 5

national park service, 8
_______________

Index

xxii

proprietary, 5, 146

statutes applicable to designated 

lands, 6

statutes of general application, 6

tennessee valley authority, 9

US fish and wildlife/national marine 

fisheries service, 9

US park police, 9

USDA forest service, 8

jurors and judicial officers

obstruction

18 U.S.C. § 1503, 190

jury instructions

procedural stages

criminal trial, 98

justice for all act

18 U.S.C. § 3771, 199

juvenile

arrest, 272

initial appearance, 272

Miranda, 273

K

Katz

REP, 309, 462

knock and announce, 352

authority and purpose, 355

breaking, 354

computers, 478

exclusionary rule, 358

exigent circumstances, 357

danger to officers, 357

deception, 357

destruction of evidence, 357

hot pursuit, 357

useless gesture, 357

knock, 355

no knock warrants, 358

purposes, 354

refusal, 355

evidence destruction, 356

flight, 356

gunfire, 356

silence, 356

verbal refusal, 356

knowingly, 145

possess

drugs, 145

knowledge

counterfeit securities, 215

interstate transport of stolen 

property, 211

ITSP, 211, 215

National Stolen Property Act, 211, 

215

other crimes or acts

relevant evidence, 100

L

Lacey Act

16 U.S.C. §§ 3371-3378, 27

land management, 1

authority and jurisdiction, 2

Code of Federal Regulations, 3, 

15

enabling legislation, 3, 15

inspection authority, 30

jurisdiction

agency specific, 8

special maritime and territorial, 

4, 7

subject matter, 10

territorial, 4

concurrent, 5

exclusive, 5

proprietary, 5

late joiner

conspiracy, 45

lay person opinion, 102

emotional condition, 103

handwriting, 103

voice, 103

lay person testimony, 102

emotional condition, 103

handwriting, 103

voice, 103

laying a foundation

evidence, 114

legislative branch, 60

line-ups

fifth amendment

due process, 507

sixth amendment

counsel, 503

living document

Constitution, 57
_______________

Index

xxiii

lulling letters

scheme to defraud, 205

M

machine gun, 163

magistrate court, 255

felony cases, 255

misdemeanor trials, 255, 256

mail

REP, 316

mail fraud, 203

18 U.S.C. § 1341, 203

venue, 215

venue, 215

mandatory penalties

18 U.S.C. § 924(c)(1), 160

firearms

crime of violence, 160

drug trafficking crime, 160

manufacture

controlled substances, 169

Marine Mammal ProtectionAct

16 U.S.C. §1377, 28

McDade amendment, 505

no contact rule, 505

represented parties, 505

medical diagnosis

hearsay exception, 122

members of congress

arrest, 271

breach of peace, 272

felony, 272

mentally defective

firearms

prohibited person, 158

Miranda

juvenile, 273

rights, 495

counsel, 496

ambiguous request, 497

contact re-initiation, 497

offense general, 496

silence, 496

waiver, 491

affirmative, 492

form, 492

intelligent and knowing, 491

voluntary, 491

deception, 492

warnings, 486

exceptions, 494

booking questions, 495

public safety, 494

violations, 493

intentional, 494

unintentional, 493

when required, 487

custody, 488

incarcerated person, 490

informant, 487

intent to arrest, 490

known law enforcement, 487

police station, 490

questioning, 487

search warrant, 490

stale warnings, 493

Terry stop, 489

traffic stop, 489

undercover agent, 487

Miranda rights, 495

counsel, 496

ambiguous request, 497

contact re-initiation, 497

offense general, 496

silence, 496

Miranda v. Arizona, 486

Miranda warnings, 486

exceptions, 494

booking questions, 495

public safety, 494

stale, 493

violations, 493

intentional, 494

unintentional, 493

when required, 487

custody, 488

search warrant, 490

Terry stop, 489

traffic stop, 489

incarcerated person, 490

informant, 487

intent to arrest, 490

known law enforcement, 487

police station, 490

questioning, 487

stale warnings, 493

undercover agent, 487
_______________

Index

xxiv

misdemeanor, 143, 145, 254

defined, 145

warrantless arrest, 351

misprision of a felony

18 U.S.C. § 4, 53

mistrial

double jeopardy, 73

mobile conveyance exception, 388

prerequisites, 389

rationale, 389

scope, 391

timing, 390

modus operandi

other crimes or acts

relevant evidence, 100

motive, 144

other crimes or acts

relevant evidence, 99

motive to lie, 105

murder, 144

18 U.S.C. § 1111, 144

N

national marine fisheries

arrest authority, 12

subject matter jurisdiction, 12

national marine fisheries/fish and 

wildlife service

jurisdiction, 9

16 U.S.C. §§ 472b, 668dd (g), 

3375b, 10

national park service

arrest authority, 11

16 U.S.C. § 1a-6(b)(3), 11

inspection authority

36 C.F.R. 3.5, 30

jurisdiction, 8

16 U.S.C. § 1a-6, 8

subject matter jurisdiction, 11

National Stolen Property Act, 209

18 U.S.C. § 2314, 209

venue, 215

counterfeit securities, 213

intent to defraud, 213, 215

interstate transport of stolen 

property, 209

knowledge, 211, 215

securities, 213

travel fraud, 212

venue, 215

necessity

defenses

intentional torts, 459

negligent tort, 448, 453

defenses, 458

elements, 448

breach of duty, 450

causation, 451

damages, 451

duty, 449

no standing

exclusionary rule

exception, 338

nolle prosiqui

double jeopardy, 73

non-custodial interrogations, 498

immunity, 499

testimonial, 499

transactional, 500

use, 499

perjury, 500

subpoenas to testify, 498

non-deadly force, 512

chemical sprays, 526, 530

examples, 532, 533, 534, 535, 

536

excessive, 530, 531

reasonable, 531, 532

striking instruments, 526

examples, 527

gratuitous blows, 526

non-public forums

freedom of speech, 83

O

obscenity

freedom of speech, 68, 91

obstruction of justice, 189

18 U.S.C. § 1503

judicial officers and jurors, 190

18 U.S.C. § 1510

criminal investigations, 191

18 U.S.C. § 1512

witness intimidation, 192

18 U.S.C. § 1513

witness retaliation, 195

offensive touching, 147, 150

offer assault, 147, 149
_______________

Index

xxv

officer liability, 432

officer safety

use of force, 516

official act, 151, 153, 154

official duties, 148, 149, 150

engaged in, 148, 150

on account of, 148, 149, 150

omnibus crime control and safe 

streets act of 1968

18 U.S.C. § 2510 et seq, 219

opening statements

procedural stages

criminal trial, 97

opinion

expert, 102

lay person, 102

emotional condition, 103

handwriting, 103

voice, 103

opportunity

other crimes or acts

relevant evidence, 100

oral communications, 220

defined, 221

overt act

conspiracy

elements, 42

own recognizance

pretrial release, 263

P

pardon or expungement, 159

park police

arrest authority, 12

16 U.S.C. § 1a-6, 12

jurisdiction, 9

subject matter jurisdiction, 12

parties to crimes, 51

accessory after the fact, 52

aiding and abetting, 51

causing a crime, 52

misprision of a felony, 53

principal, 51

Patriot Act

grand jury matters, 286

PDAs

search incident to arrest, 470

peace officer status, 14, 348

pen register

18 U.S.C. §§ 3121 et seq, 236

court order, 238

defined, 236

regulation, 237

penalty

21 U.S.C. § 841, 170

21 U.S.C. § 844, 170

drugs, 170

penalty, 145

assault, 150

deadly weapon, 150

conspiracy, 38

perjury, 500

permits

freedom of speech, 84

permitted inducements, 173

petty offense, 254

photo arrays

fifth amendment

due process, 507

physical or mental incapacity, 105

Pinkerton Theory

conspiracy, 43

plain touch doctrine, 325

plain view doctrine, 343

computers, 467

government workplace search, 428

incriminating nature, 344

right to be, 343

computers, 467, 468

right to seize, 344

plan or preparation

other crimes or acts

relevant evidence, 100

pointing weapon

use of force

reasonableness, 515

possession

controlled substances

unlawful, 168

predisposition

course of similar conduct, 174

entrapment, 173

excessive amounts of money, 175

extreme appeals to emotion, 175

other crimes or acts

relevant evidence, 101

previously formed intent, 174
_______________

Index

xxvi

ready response, 175

threats, 175

preliminary hearing, 273

petty offenses, 273

procedure, 273

results, 274

timing, 274

waiver, 273

present apparent ability, 147, 149

pretextual stop

vehicles, 328

pretrial release

bail, 263

bail jumping, 265

conditional, 264

detention hearing, 264

own recognizance, 263

pretrial services report

initial appearance, 263

principal

parties to crimes, 51

prior conviction

impeachment, 106

prior inconsistent statement, 105

private conduct

computer search, 461

search, 308

private search, 308, 313

computers, 461

privileges, 106

federal, 108

attorney-client, 108, 109

clergy-communicant, 108, 111

fifth amendment, 108

government-informant, 108, 112

husband-wife, 108, 110

psychotherapist-patient, 108, 

111

holder, 107

non-federal, 108

waiver, 107

probable cause, 333

arguable, 443

arrest, 328

confidential informants, 335

Aguilar, 335, 337

basis of knowledge, 336

credibility, 335

defined, 333

establishing, 334

totality of the circumstances, 334, 

337

Gates, 337

procedural stages

criminal trial, 96

case in chief, 97

closing argument, 98

defense case, 97

jury instructions, 98

opening statements, 97

rebuttal case, 97

sentencing, 98

suppression motion, 96

voir dire, 97

prohibited inducements, 173

prohibited persons

18 U.S.C. § 922(g), 157

firearms

adjudicated mentally defective, 

158

convicted felon, 157

dishonorably discharged, 158

domestic relations restraining 

order, 158

domestic violence misdemeanor 

conviction, 159

drug user-addict, 158

fugitive from justice, 158

illegal or non-permanent resident 

alien, 158

pardon or expungement, 159

renounced citizenship, 158

proprietary jurisdiction, 146

land management, 5

statutes applicable to designated 

lands, 6

statutes of general application, 6

protective sweep, 359

automatic, 360

extended, 361

scope, 359

areas, 359

arrest outside home, 361

timing, 360

psychotherapist-patient privilege, 

108, 111

public documents

foundations, 116
_______________

Index

xxvii

hearsay, 119

self-authentication, 118

public forums

freedom of speech, 83, 84

public official, 151, 153, 154

public safety exception

Miranda warnings, 494

Q

qualified immunity, 446, 536, 537, 

538

clearly established right, 447, 448, 

538

examples, 539

R

racial profiling

constitutional standard, 328

DOJ guidance, 328

border security, 332, 333

criminal organization, 331

generalized stereotypes, 330

national security, 332, 333

routine actions, 329

specific investigations, 330

specific suspect description, 331

real evidence, 95

reasonable expectation of privacy, 

308

computers, 461

3

rd party possession, 463

stolen, 462

reasonable force, 512

“officer safety”, 516

factors, 513

handcuffing, 515

pointing weapon, 515

reasonable suspicion, 319

anonymous tip, 321

collective knowledge, 321

criminal activity afoot, 320

informant, 321

justifying factors, 322

Terry frisk, 324

justifying factors, 324

plain touch doctrine, 325

vehicles, 327

totality of the circumstances, 320

rebuttal case

procedural stages

criminal trial, 97

receipt of stolen government 

property, 186

knowledge, 187

reciprocal discovery, 291

re-direct examination, 135

refreshing recollection, 122

registration

firearms, 162

destructive device, 163

machine gun, 163

short-barrel rifle, 163

short-barrel shotgun, 162

silencer, 163

relevant evidence, 98

other crimes or acts, 99

identity, 100

impeachment, 100

intent, 99

knowledge, 100

modus operandi, 100

motive, 99

opportunity, 100

plan or preparation, 100

predisposition, 101

reliability

anonymous tip, 321

confidential informants, 335

consistency between informants, 

336

corroboration, 335

degree of detail, 336

face to face, 336

first hand information, 336

statements against interest, 335

track record, 335

informant, 321

consistency between informants, 

336

corroboration, 335

degree of detail, 336

face to face, 336

first hand information, 336

statements against interest, 335

track record, 321, 335

remand

double jeopardy, 74
_______________

Index

xxviii

removal hearing, 266

renounced citizenship

firearms

prohibited person, 158

REP

abandoned property, 315

apartment, 312

body, 310

computers, 461

3

rd party possession, 463

stolen, 462

condo, 312

containers, 312

curtilage, 313

garbage, 316

government workplaces, 314

homes, 311

hotel room, 312

Katz, 309, 462

mail, 316

test, 309

vehicles, 310

owner, 310

passenger, 311

VIN, 311

right to counsel

Bill of Rights, 76

right to remain silent, 481, 498

collective entities, 500

deportation proceedings, 501

documents, 500

third parties, 501

government employees, 501

internal government investigations, 

501

perjury, 500

Rule 16

discovery, 290, 291

Rule 26.2

discovery, 290, 295

Rule 6(e) list

grand jury matters, 286

S

schedules

drugs, 167

scheme to defraud, 151, 204

lulling letters, 205

scope of employment

certification

Federal Tort Claims Act, 457

Constitutional torts

Federal Tort Claims Act, 458

Federal Tort Claims Act, 454

government vehicles, 456

FTCA, 454

government vehicles, 456

scope of search

computers

consent, 463, 464

Scott v. Harris

deadly force, 517, 519

sealed

indictment, 279

search

administrative, 405

airport, 408

security checkpoint, 408, 409

border, 409

actual, 412

extended, 414

functional equivalent, 412

non-routine, 411

routine, 410

business inspection, 406

general crime checkpoint, 406

government facility, 408

information checkpoint, 406

license checkpoint, 405

sobriety checkpoint, 405

aircraft overflights, 317

airport, 408

security checkpoint, 408, 409

border, 409

actual, 412

extended, 414

functional equivalent, 412

non-routine, 411

routine, 410

business inspection, 406

canine sniffs, 317

Carroll doctrine, 388

prerequisites, 389

rationale, 389

scope, 391

timing, 390

computers
_______________

Index

xxix

consent

voluntary, 463

consent, 396

computers, 463

authority, 463

voluntary, 463

implied

computers, 465

requirements, 397

authority, 399

voluntary, 397

scope, 400

computers, 463, 464

third party, 400

computers, 464

husband-wife, 401

parent-child, 401

roommate, 402

voluntary, 397

defined, 308

dog sniffs, 317

exigent circumstance, 392

computers, 466

destruction of evidence, 394

computers, 467

emergency scene, 395

crime scene, 396

murder scene, 396

hot pursuit, 393

immediate or continuous, 393

PC, 393

public place, 394

serious crime, 393

general crime checkpoint, 406

government facility, 408

government workplace, 416

criminal evidence, 428

defined, 417

dual purpose, 429

employee misconduct, 426

justified at inception, 427

non-investigatory purpose, 426

permissible scope, 428

plain view, 428

reasonableness, 424, 427

REP, 418

job position, 423

openness and accessibility, 

422

practices and procedures, 421

prior notice, 419

waiver, 424

scope, 428

work-related purpose, 426

information checkpoint, 406

inventory, 402

computers, 470

standardized policy, 471

justification, 403

location, 404

requirements, 403

lawful impoundment, 403

standardized policy, 403

scope, 404

license checkpoint, 405

mobile conveyance exception, 388

prerequisites, 389

rationale, 389

scope, 391

timing, 390

private conduct, 308

computers, 461

reasonable expectation of privacy, 

308

computers, 461

REP, 308

abandoned property, 315

apartment, 312

body, 310

computers, 461

condo, 312

containers, 312

curtilage, 313

garbage, 316

government workplaces, 314

homes, 311

hotel room, 312

Katz, 309, 462

mail, 316

test, 309, 462

vehicles, 310

owner, 310

passenger, 311

VIN, 311

sensory enhancements, 317

sobriety checkpoint, 405

Terry frisk, 324

justifying factors, 324
_______________

Index

xxx

plain touch doctrine, 325

vehicles, 327

vehicles

Carroll doctrine, 388

prerequisites, 389

rationale, 389

scope, 391

timing, 390

mobile conveyance exception, 

388

prerequisites, 389

rationale, 389

scope, 391

timing, 390

warrant, 367

affidavit, 370

false statements, 376

nexus, 371

particularity, 373

items to be seized, 374

person, 374

place, 373

vehicle, 374

staleness, 371

anticipatory, 372

computers, 471

execution, 477

independent component 

doctrine, 472

multiple warrants, 476

off-site search, 474

scope, 472, 473

systems, 471

time limitations, 479

execution, 379

answering the phone, 383

detaining persons, 383

frisking persons, 385

inventory, 387, 388

notice, 382

property damage, 387

return, 388

searching persons, 385

seizing weapons, 383

use of force, 382

when, 381

who, 380

neutral and detached magistrate, 

370

no knock warrants, 358

outside the district, 368

scope, 385

containers, 386

place, 386

vehicles, 386

stored email, 369, 476

telephonic, 376

exigent circumstances, 376

requirements, 377, 379

who can issue, 377

terrorism investigations, 369

tracking devices, 369

who may issue, 367

who may request, 367

within the district, 368

computers, 476

search incident to arrest, 362

cell phones, 469

computers, 468

currently accessible, 363

electronic pagers, 469

lawful custodial arrest, 362

PDAs, 470

rational, 362

requirements, 362

scope, 363

lunging distance, 364

the person, 364

vehicles, 365

access, 365, 366

evidence of crime of arrest, 

366

recent occupant, 365

substantially contemporaneous, 

362

search warrant, 367

affidavit, 370

false statements, 376

nexus, 371

particularity, 373

items to be seized, 374

person, 374

place, 373

vehicle, 374

staleness, 371

anticipatory, 372

computers, 471

execution, 477
_______________

Index

xxxi

who, 477

independent component 

doctrine, 472

multiple warrants, 476

off-site search, 474

scope, 472, 473

systems, 471

time limitations, 479

execution, 379

answering the phone, 383

detaining persons, 383

frisking persons, 385

inventory, 387, 388

Miranda warnings, 490

notice, 382

property damage, 387

return, 388

searching persons, 385

seizing weapons, 383

use of force, 382

when, 381

who, 380

Miranda warnings, 490

neutral and detached magistrate, 

370

no knock warrants, 358

outside the district, 368

scope, 385

containers, 386

place, 386

vehicles, 386

stored email, 369, 476

telephonic, 376

exigent circumstances, 376

requirements, 377, 379

who can issue, 377

terrorism investigations, 369

tracking devices, 369

who may issue, 367

who may request, 367

within the district, 368

computers, 476

searchlights

search, 317

securities

interstate transport of stolen 

property, 213

ITSP, 213

National Stolen Property Act, 213

seizure

arrest, 318, 328

authority, 348

citizen’s arrest authority, 348

de facto, 323

no knock warrants, 358

peace officer status, 348

pointing weapon, 515

statutory authority, 348

warrant, 345

criminal complaint, 345

entering a home, 350

execution, 346, 347

federal, 349

form, 346

indictment, 345

information, 345

return, 347

state, 349

suspect’s home, 350

third party’s home, 351

warrantless, 351

felonies, 351

misdemeanors, 351

consensual encounter, 318

defined, 318

incarcerated person

Miranda warnings, 490

intent to arrest

Miranda warnings, 490

investigative detention, 318, 319

reasonable suspicion, 319, 320

police citizen encounters, 318

police station

Miranda warnings, 490

Terry stop, 318, 319

Miranda warnings, 489

reasonable suspicion, 319

anonymous tip, 321

collective knowledge, 321

duration, 322

informant, 321

justifying factors, 322

totality of the circumstances, 

320

use of force, 323

vehicles, 326
_______________

Index

xxxii

vehicles

duration, 327

permissible actions, 326

pretextual stop, 328

traffic stop

Miranda warnings, 489

vehicles, 326

permissible actions, 326

voluntary contact, 318

self-authentication, 118

business records, 118

public documents, 118

self-defense

defenses

intentional torts, 458

self-incrimination, 481

Bill of Rights, 74

collective entities, 500

deportation proceedings, 501

documents, 500

third parties, 501

government employees, 501

internal government investigations, 

501

perjury, 500

sensory enhancements

binoculars, 317

flashlights, 317

searchlights, 317

telescopes, 317

thermal imaging, 317

sentencing, 300

pre sentence investigation(PSI), 

301

pre sentence report(PSR), 301

procedural stages

criminal trial, 98

U.S. Probation and Pretrial 

Services Office, 301

serious physical injury

defined, 516

short-barrel rifle, 163

short-barrel shotgun, 162

show-ups

fifth amendment

due process, 507, 508

silencer, 163

simple assault, 150

Sixth amendment

confront witnesses, 76

Constitution, 75

counsel, 502

attachment, 503

critical stages

attachment, 503

interrogations, 502

line-ups, 503

informant, 505

interrogations

offense specific, 504

invocation, 504, 505

undercover agent, 505

waiver, 504

informed of charges, 76

right to counsel, 76

speedy trial, 75

venue, 77

witness compulsory process, 76

Sixth Amendment, 481

sobriety checkpoint, 405

sovereign immunity, 446

Federal Tort Claims Act, 453

FTCA, 453

special maritime and territorial 

jurisdiction

18 U.S.C. § 7, 7

land management, 4, 7

specific instances of 

untruthfulness

impeachment, 105

speedy trial

Bill of Rights, 75

speedy trial act, 298, 299

arrest, 300

spontaneous statements, 488

state offenses

arrest authority, 13

Assimilative Crimes Act, 13, 145

citizen’s arrest authority, 15

peace officer status, 14

subject matter jurisdiction, 13

state warrant

arrest

execution, 349

statements

incriminating, 485
_______________

Index

xxxiii

initial appearance

without unnecessary delay, 261

interrogations, 483, 487

McDade amendment, 505

non-custodial, 498

perjury, 500

represented parties, 505

spontaneous

Miranda warnings, 488

testimonial, 485

voluntary, 483

deception, 484

totality of circumstances, 483, 

484

deception, 484

volunteered

Miranda warnings, 488

statute of limitations, 298

18 U.S.C. § 3282, 46

18U.S.C. § 3282, 298

continuing offenses, 299

defined, 298

tolling

formal charging, 298

fugitive, 299

statutes applicable to designated 

lands

jurisdiction, 6

statutes of general application

jurisdiction, 6

statutory law, 143, 144, 145

stealing government property, 183

stolen computers

REP, 462

stored access communications act, 

240

stored electronic communications, 

240

basic subscriber information, 240

defined, 240

subpoena, 242

notice to subscriber, 242

contents, 240

court order, 244

notice to subscriber, 244

defined, 241

subpoena, 245

notice to subscriber, 245

warrant, 243, 244

notice to subscriber, 243, 244

methods of obtaining

§ 2703(d) court order, 242

court order, 242, 244

multi jurisdictional warrant, 246

notice to subscriber, 242, 243, 

244, 245

extensions, 244, 245

preservation order, 245

subpoena, 242, 245

warrant, 242, 243, 244

transactional records, 240

court order, 242

notice to subscriber, 243

defined, 241

striking instruments

use of force, 526

examples, 527

gratuitous blows, 526

subject matter jurisdiction

bureau of land management, 12

bureau of reclamation, 13

cross designation, 13, 14

DOD land management officers, 12

land management, 10

national marine fisheries, 12

national park service, 11

state offenses, 13

citizen’s arrest authority, 15

peace officer status, 14

tennessee valley authority, 11

US fish and wildlife service, 11

US park police, 12

USDA forest service, 11

subpoena

administrative, 283

grand jury, 279, 280

duces tecum, 280

limitations, 281

obtaining, 283

quashing, 281

requirements, 281

service, 280

witness, 280

IG, 283

IG Act, 283

summons, 258

initial appearance, 260
_______________

Index

xxxiv

suppression motion

procedural stages

criminal trial, 96

supreme court, 253

federal rules of criminal procedure, 

253

justices, 256

writ of certiorari, 253

T

tantamount to formal arrest

custody

Miranda warnings, 489

telephonic search warrant, 376

exigent circumstances, 376

requirements, 377, 379

who can issue, 377

telescopes, 317

Tennessee v. Garner

deadly force, 518, 519

tennessee valley authority

arrest authority, 11

16 U.S.C. § 831c-3(b)(2)(A), 12

jurisdiction, 9

16 U.S.C. § 831c (3) (c), 9

subject matter jurisdiction, 11

territorial jurisdiction

concurrent, 5

exclusive, 5

land management, 4

proprietary, 5

Terry frisk, 324

justifying factors, 324

plain touch doctrine, 325

vehicles, 327

Terry stop, 318, 319

Miranda warnings, 489

reasonable suspicion, 319

anonymous tip, 321

collective knowledge, 321

duration, 322

informant, 321

justifying factors, 322

totality of the circumstances, 320

use of force, 323

vehicles, 326

duration, 327

permissible actions, 326

pretextual stop, 328

vehicles, 326

permissible actions, 326

testimonial evidence, 95, 485

testimonial immunity, 499

testimonial statements, 485

testimony, 127, 152

audible answers, 132

cop talk, 133

cross-examination, 135, 136

badgering, 137

compound questions, 138

conflicting testimony, 139

friendly defense counsel, 139

mistakes, 138, 140

possibilities, 139

pretrial discussions, 137

previous lies, 140

prior inconsistent statement, 140

rapid fire questions, 138

repetitive questions, 137

testifying for the witness, 136

twisting prior testimony, 139

volunteering information, 137

yes or no answer, 136

direct examination, 135

good attitude, 131

hearsay, 119

defendant’s statement, 121

exceptions, 121

excited utterance, 121

medical diagnosis, 122

statement, 120

trial, 120

truth of matter asserted, 120

I don’t know, 134

I don’t recall, 134

impartial, 129

impeachment, 135

just the facts, 133

listen, think, answer, 132

memorized, 134

Miranda rights, 140

mistakes, 131

objection rulings, 133

positive and definitive answers, 134

prepared, 129

prior criminal history, 140

privileges, 106
_______________

Index

xxxv

attorney-client, 108, 109

clergy-communicant, 108, 111

federal, 108

fifth amendment, 108

government-informant, 108, 112

holder, 107

husband-wife, 108, 110

non-federal, 108

psychotherapist-patient, 108, 

111

waiver, 107

proper demeanor, 131

properly attired, 130

prosecutorial assistance, 133

re-direct examination, 135

refreshing recollection, 122

respectful, 129

serious, 131

speak to the jury, 134

speaking to the judge, 133

suppressed evidence, 141

truthful, 129

volunteered information, 132

theft of government property, 181, 

182

abandoned, 183

felony, 182

misdemeanor, 182

thermal imaging

search, 317

third party consent, 400

computers, 464

husband-wife, 401

parent-child, 401

roommate, 402

threat, 147, 149

ticket, 258, 289

Title III, 219, 220

court order

application

DOJ approval, 223

application contents

18 U.S.C. § 2518, 224, 225, 

226

identity of applicant, 224

identity of suspects, 224

minimization statement, 226

necessity statement, 225

previous applications, 226

statement of facts, 224

time period, 225

electronic communications

AUSA approval, 223

DOJ approval, 223

enumerated crimes

18 U.S.C. § 2516, 222

electronic communications, 

223

oral communications, 223

wire communications, 223

how obtained, 222

oral communication

DOJ approval, 223

when required, 220

who can apply

18 U.S.C. § 2510(7), 222

who can issue

18 U.S.C. § 2510, 227

wire communication

DOJ approval, 223

electronic communications, 220

defined, 221

electronic communications privacy 

act of 1986, 220, 240

exempt devices

public communications, 232

tone only pagers, 231

tracking devices, 231

video only surveillance, 231

exemptions

consent, 229

18 U.S.C. § 2511, 229

AUSA advice, 230

device in a fixed location, 231

device on a person, 231

high visibility cases, 230

no REP, 228

wire and electronic 

communications, 229

wire and electronic 

communications

18 U.S.C. § 2511, 229

federal communications act of 

1934, 219

intercepts, 220

defined, 221

device

defined, 221
_______________

Index

xxxvi

omnibus crime control and safe 

streets act of 1968, 219

oral communications, 220

defined, 221

wire communications, 220

defined, 221

tort, 434

civil lawsuit, 434

civil liability, 434, 448

intentional, 451, 454

defenses, 458

negligent, 448, 453

defenses, 458

constitutional, 439

scope of employment, 458

definition, 434

intentional, 451, 454

assault, 452

battery, 452

conversion, 453

damage to land, 453

damage to personal property, 

453

defenses, 458

emotional distress, 452

false arrest, 452

false imprisonment, 452

to property, 452

to the person, 452

negligent, 448, 453

defenses, 458

elements, 448

state law, 434, 448

totality of the circumstances

voluntary statements, 483, 484

deception, 484

probable cause, 337

Gates, 337

tracing

firearms, 164

information gained, 165

required information, 164

traffic stop

Miranda warnings, 489

transactional immunity, 500

transfer, 297

trap and trace device

18 U.S.C. §§ 3121 et seq, 236

court order, 238

defined, 237

regulation, 237

travel fraud

interstate or foreign commerce, 212

value, 213

true threats

freedom of speech, 69, 87, 88

U

under color of law

18 U.S.C. § 242, 437, 438

42 U.S.C. § 1983, 440

undercover agent

Miranda warnings, 487

sixth amendment counsel, 505

unlawful arrest

Bivens

civil liability, 442

civil liability

Bivens, 442

unlawful possession

controlled substances, 168

unlawful search

Bivens

civil liability, 442

civil liability

Bivens, 442

unprotected conduct

freedom of speech, 84

unprotected speech

advocating imminent lawlessness, 

67, 89, 90

clear and present danger, 67, 90

fighting words, 67, 86

fraud, perjury, libel, and slander, 69

freedom of speech, 85

obscenity, 68, 91

true threats, 69, 87, 88

US fish and wildlife service

arrest authority, 11

subject matter jurisdiction, 11

US fish and wildlife/national marine 

fisheries service

jurisdiction, 9

16 U.S.C. §§ 472b, 668dd (g), 

3375b, 10

US park police

arrest authority, 12

jurisdiction, 9
_______________

Index

xxxvii

subject matter jurisdiction, 12

USDA forest service

arrest authority, 11

jurisdiction, 8

16 U.S.C. §§ 559, 559c, 559d, 8

subject matter jurisdiction, 11

use and fruits immunity, 499

use of force, 511

agency policy, 526

deadly, 516

defined, 516

reasonableness, 517

fear for life, 519

lesser forms, 520

offense level, 520

retreat, 520

verbal warning, 520

warning shots, 520

Scott v. Harris, 517, 519

Tennessee v. Garner, 518, 519

examples, 521

unarmed suspect, 521, 523, 524

non-deadly, 512

chemical sprays, 526, 530

examples, 532, 533, 534, 535, 

536

excessive, 530, 531

reasonable, 531, 532

striking instruments, 526

examples, 527

gratuitous blows, 526

reasonableness, 512

“officer safety”, 516

factors, 513

Graham v. Conner, 512

handcuffing, 515

pointing weapon, 515

serious physical injury

defined, 516

use of race

DOJ guidance

border security, 332, 333

criminal organization, 331

generalized stereotypes, 330

national security, 332, 333

routine actions, 329

specific investigations, 330

specific suspect description, 331

profiling

constitutional standard, 328

DOJ guidance, 328

V

value

18 U.S.C. § 2311, 211

interstate transport of stolen 

property, 211

ITSP, 213

travel fraud, 213

vehicles

REP, 310

owner, 310

passenger, 311

search incident to arrest

access, 365, 366

evidence of crime of arrest, 366

recent occupant, 365

VIN

REP, 311

venue, 296

18 U.S.C. § 3237, 215

Bill of Rights, 77

change, 297

conspiracy, 47

defined, 296

ITSP, 215

mail fraud, 215

National Stolen Property Act, 215

sixth amendment, 77

wire fraud, 215

victim and witness protection act, 

189, 197

restitution, 198

video only surveillance

REP area, 238

warrant, 239

vienna convention on consular 

relations, 269, 270, 271

VIN

REP, 311

voir dire

procedural stages

criminal trial, 97

voluntary

Miranda waiver, 491

deception, 492

voluntary contact, 318

voluntary statements, 483
_______________

Index

xxxviii

deception, 484

totality of circumstances, 483, 484

deception, 484

volunteered statements, 488

W

waiver

Miranda, 491

affirmative, 492

form, 492

intelligent and knowing, 491

voluntary, 491

deception, 492

privileges, 107

warning shots, 520

warrant

arrest, 257, 345

criminal complaint, 259, 345

entering a home, 350

execution, 346, 347

form, 346

indictment, 259, 345

information, 260, 345

no knock warrants, 358

return, 347

suspect’s home, 350

third party’s home, 351

execution

Miranda warnings, 490

search, 367

affidavit, 370

false statements, 376

nexus, 371

particularity, 373

items to be seized, 374

person, 374

place, 373

vehicle, 374

staleness, 371

anticipatory, 372

computers, 471

execution, 477

independent component 

doctrine, 472

multiple warrants, 476

off-site search, 474

scope, 472, 473

systems, 471

time limitations, 479

execution, 379

answering the phone, 383

detaining persons, 383

frisking persons, 385

inventory, 387, 388

Miranda warnings, 490

notice, 382

property damage, 387

return, 388

searching persons, 385

sieizing weapons, 383

use of force, 382

when, 381

who, 380

neutral and detached magistrate, 

370

no knock warrants, 358

outside the district, 368

scope, 385

containers, 386

place, 386

vehicles, 386

stored email, 369, 476

telephonic, 376

exigent circumstances, 376

requirements, 377, 379

who can issue, 377

terrorism investigations, 369

who may issue, 367

who may request, 367

within the district, 368

computers, 476

stored electronic communications, 

242, 243, 244

multi jurisdictional, 246

tracking devices, 369

video only surveillance, 239

warrantless arrest, 351

wire communications, 220

defined, 221

wire fraud, 207

18 U.S.C. § 1343, 207

venue, 215

venue, 215

withdrawal

conspiracy, 45

without unnecessary delay

initial appearance

statements, 261
_______________

Index

xxxix

witness, 151, 152, 153

bias, 104

bribery

18 U.S.C. § 1510, 191

characteristics

good attitude, 131

impartial, 129

mistakes, 131, 138, 140

prepared, 129

proper demeanor, 131

properly attired, 130

respectful, 129

serious, 131

truthful, 129

compulsory process

sixth amendment, 76

confront

sixth amendment, 76

contradiction, 105

credibility, 103

bias, 104

contradiction, 105

impeachment, 103

motive to lie, 105

physical or mental incapacity, 

105

prior conviction, 106

prior inconsistent statement, 105

specific instances of 

untruthfulness, 105

cross-examination, 135, 136

badgering, 137

compound questions, 138

conflicts between witnesses, 139

friendly defense counsel, 139

mistakes, 138, 140

possibilities, 139

pretrial discussions, 137

prior inconsistent statement, 140

prior lies, 140

rapid fire questions, 138

repetitive questions, 137

testifying for the witness, 136

twisting prior testimony, 139

volunteering information, 137

yes or no answer, 136

direct examination, 135

expert, 102

hearsay, 119

defendant’s statement, 121

exceptions, 121

excited utterance, 121

medical diagnosis, 122

statement, 120

trial, 120

truth of matter asserted, 120

impeachment, 103, 135

lay person, 102

emotional condition, 103

handwriting, 103

voice, 103

motive to lie, 105

opinion

expert, 102

lay person, 102

emotional condition, 103

handwriting, 103

voice, 103

physical or mental incapacity, 105

prior conviction, 106

prior inconsistent statement, 105

privileges, 106

attorney-client, 108, 109

clergy-communicant, 108, 111

federal, 108

fifth amendment, 108

government-informant, 108, 112

holder, 107

husband-wife, 108, 110

non-federal, 108

psychotherapist-patient, 108, 

111

waiver, 107

re-direct examination, 135

refreshing recollection, 122

retaliation, 195

18 U.S.C. § 1513, 195

skills

audible answers, 132

cop talk, 133

I don’t know, 134

I don’t recall, 134

just the facts, 133

listen, think, answer, 132

memorized testimony, 134

objection rulings, 133

positive and definitive answers, 

134
_______________

Index

xl

prosecutorial assistance, 133

speak to the jury, 134

speaking to the judge, 133

volunteering information, 137

specific instances of untruthfulness, 

105

tampering

18 U.S.C. § 1512, 192

testimony, 127

Miranda rights, 140

prior criminal history, 140

suppressed evidence, 141

volunteered information, 132

witness and victim protection act, 

189, 197

restitution, 198

witness compulsory process

Bill of Rights, 76
_______________

Contributors

i

Contributors

Bob Cauthen has been Program Manager for advance legal 

training programs since 2002 with responsibility for the 

Continuing Legal Education Training Program (CLETP), the 

FLETC Instructor Training Program (FILTP), and the Police 

Legal Advisors Training Program (PLATP). Bob is responsible for 

the Legal Division website and is editor of The Federal Law 

Enforcement Informer, a monthly publication containing case 

summaries of significant Supreme Court and Federal Circuit 

Court law enforcement decisions and articles of interest to 

agents and officers. He also served as editor of the FLETC legal 

textbooks – the Handbook and the Reference Book from 2007-

2009. Bob is a Captain in the Navy Reserve JAG Corps where 

he has served as a trial judge, a judge on the Navy Marine 

Corps Court of Criminal Appeals, and is currently assigned to 

the Office of the Judge Advocate General, Code 20, Military 

Justice. Bob earned his B.S. degree from Troy University, M.S 

degree from the University of Alabama, and J.D. from 

Cumberland School of Law, Samford University. Mr. Cauthen 

can be contacted at (912) 267-2179 or robert.cauthen@dhs.gov. 

T.K. Caldbeck is a graduate of the University of Texas (B.A.), 

Oklahoma City University (J.D.), the Army Judge Advocate 

General’s School (LL.M.). He served in the Navy, the Marine 

Corps, and the Army and is a former Assistant Professor at the 

United States Military Academy. He has prosecuted and 

defended cases in both state and federal courts. Mr. Caldbeck

can be contacted at (912) 267-3021 or 

thomas.caldbeck@dhs.gov.

Jeff Fluck served on active duty as an Army judge advocate. 

Assignments included prosecutor, chief of criminal law, and 

officer-in-charge [OIC] of five legal offices. Deployments included 

Desert Shield/Storm to Saudi Arabia with the 2d COSCOM and 

Vigilant Warrior to Kuwait with the 24th Infantry Division. He 

also trained military police at Forts McClellan and Leonard 

Wood. He is a graduate of Haverford College and Washington 

and Lee University Law School. Mr. Fluck can be contacted at 

(912) 554-4218 or jeff.fluck@dhs.gov.
_______________

Contributors

ii

Keith Hodges is a graduate of Furman University (B.A.) and the 

University of South Carolina (J.D.). He served as a commander, 

prosecutor, defense counsel, Staff Judge Advocate, and Military 

Judge in the U.S. Army, retiring as a Colonel in 2000. For two

years while at FLETC, Keith was detailed to the Department of 

Defense as the Clerk of Court for the Military Commissions at

Guantanamo Bay, Cuba. 

Keith Hunsucker was an attorney with the United States 

Department of Justice for over ten years. He was awarded the 

1994 Commissioner’s Award for Immigration and Naturalization 

Attorney of the Year. He is a graduate of the University of 

Akron and the University of Akron School of Law. Mr. 

Hunsucker can be contacted at (912) 267-2596 or 

keith.hunsucker@dhs.gov.

Jim King was an Assistant United States Attorney for 11 years 

in Detroit, Michigan, specializing in drug related 

homicide/multiple defendant drug conspiracy prosecutions. 

Prior to that, he spent 1 year as a Special Agent with the 

Internal Revenue Service before serving the Drug Enforcement 

Administration for 20 years in that capacity. Mr. King 

continues to teach at the Drug Unit Commanders Academy for 

DEA and is the co-author of the 6th Circuit Criminal Handbook, 

published annually by Lexis Law Publishing Co. Mr. King can 

be contacted at (912) 267-2954 or ejames.king@dhs.gov.

Stephen Knerly is a special agent detailed from the U.S. 

Department of Health and Human Service, Office of Inspector 

General, where he has served for 8 years, including a 4-year 

detail as instructor to the Inspector General Criminal 

Investigator Academy. He also served for 9 years as a special 

agent with the Internal Revenue Service, Criminal Investigation 

Division, and engaged in the private practice of law for 6 years. 

He is a magna cum laude graduate of the University of Miami 

(J.D.) and the University of South Florida (B.A., M.Acc.) and is a 

Certified Public Accountant. Mr. Knerly can be contacted at 

(912) 554-4645 or stephen.knerly@dhs.gov.
_______________

Contributors

iii

Brad Lawrence has served 12 years in state and federal law 

enforcement. He spent three years as a police officer at the 

University of Oklahoma, and then joined the Immigration and 

Naturalization Service (INS) as an Immigration Inspector in 

1991. In 1992, he joined the U.S. Park Police (USPP), 

graduating first in his USPP class at FLETC. He attended and 

graduated from the University of San Francisco Law School 

while assigned to the USPP’s San Francisco Field Office, and 

was admitted to the California Bar in 2000. He also served a 

five year tour of active duty in the U.S. Air Force, where he was 

a JAG attorney and officer at Lackland AFB, Texas. Mr. 

Lawrence can be contacted at (912) 267-2729 or 

brad.lawrence@dhs.gov.

Phil Lindley served in the Army as a MP and a special agent 

with Army CID. As an Army Judge Advocate, he prosecuted 

and defended criminal cases and served nine years in special 

operations, including the Joint Special Operations Task Force 

invading Panama in 1989. Following his Army retirement Phil 

worked as a MEDICAID fraud investigator for the Florida 

Attorney General, a prosecuting attorney for the Florida Second 

Judicial Circuit, and as a legal advisor and special agent with 

the Florida Department of Law Enforcement. He has also served 

as an Assistant General Counsel with the DoD Inspector 

General. He is a graduate of Florida State University (B.S.) and 

the University of South Dakota (J.D.). 

Bobby Louis is retired from the City of Atlanta Police 

Department, where he served in many different capacities, 

including Zone 3 Supervisor, and member of the Special 

Investigations Division, Burglary Unit, Financial Investigations 

Unit, and the Executive Protection Unit, personally protecting 

Atlanta Mayors Andrew Young and Maynard Jackson. He 

served as Chief Investigator for the City of Atlanta Solicitor’s 

Office. He was also an officer in the United States Navy. He is 

a graduate of the University of Georgia School of Law and 

Morris Brown College. Mr. Louis can be contacted at (912) 267-

3093 or bobby.louis@dhs.gov.
_______________

Contributors

iv

Jim McAdams retired from the DoJ in 2006 after a 25 year 

career with the United States Attorney’s Office in the Southern 

District of Florida. During that time, he served as an AUSA, the 

Chief of the Narcotics Division, Executive AUSA, Acting USA, 

Managing AUSA of the West Palm Beach Branch Office, and 

Senior Litigation Counsel. In 1994 Attorney General Janet 

Reno appointed him to be co-chair of a Joint Intelligence 

Community and Law Enforcement Working Group. In June 

1995 Attorney General Reno appointed him as her Counsel for 

Intelligence Policy. In that position, he served as liaison with 

the various components of the Intelligence Community and also 

oversaw all submissions of wiretap and physical search 

applications by the FBI and NSA to the Foreign Intelligence 

Surveillance Court. Mr. McAdams can be contacted at (912) 

267-3257 or james.mcadams@dhs.gov. 

Tim Miller is the Branch Chief for basic training and the acting 

branch chief for advanced training at the Federal Law 

Enforcement Training Center. Mr. Miller joined the United 

States Marine Corps in 1984 after taking the Illinois state bar 

exam. During 20-years of service, he served as a prosecutor, 

defense counsel, military judge, and staff judge advocate. He 

was the Staff Judge Advocate for the 15th Marine Expeditionary 

Unit (MEU), which spearheaded Operation Restore Hope on 

December 9, 1992. The MEU provided humanitarian assistance 

to the civilian war-torn and famine stricken country of Somalia, 

Africa. He deployed again after September 11, 2001. This time 

he was the Staff Judge Advocate for Joint Task Force 160, 

which was responsible for detention operations for suspected Al 

Qaeda and Taliban terrorists at the Guantanamo Bay Naval 

Base in Cuba. His third deployment was in 2003. Again he 

was the Staff Judge Advocate; this time for a large logistics 

command supporting Operation Iraqi Freedom. Mr. Miller 

retired from the Marine Corps on July 1, 2004. Later that 

month, he joined the Federal Law Enforcement Training 

Center’s Legal Division. He was a Senior Instructor for two 

years and accepted the Branch Chief position in 2006. Mr. 

Miller received a Bachelor of Science Degree and JD from 

Southern Illinois University at Carbondale, Illinois. He received 

his LL.M from the Army Judge Advocate General’s School in 
_______________

Contributors

v

Charlottesville, Virginia. Mr. Miller can be contacted at (912) 

267-2183 or tim.miller@dhs.gov. 

John Seaman is a graduate of Augusta State University (A.A., 

B.A.) and Georgia State University (J.D.). Prior to joining the 

Legal Division, he served as an attorney with the United States 

Department of Justice and Department of Homeland Security 

for ten years where he represented the government in 

immigration matters before the Executive Office of Immigration 

Review. He also served in the United States Army as a staff 

judge advocate. Mr. Seaman can be contacted at (912) 267-

2557 or john.seaman@dhs.gov.

Jenna Solari received a B.A. in Psychology and Criminal 

Justice from the University of Richmond, and a J.D. from the 

University of Georgia, graduating #1 in her class. She worked 

as a law clerk for the Hon. Gerald B. Tjoflat in the U.S. Court of 

Appeals for the 11th Circuit. She was then commissioned as a 

Naval Officer and served three years as a military prosecutor at 

Naval Air Station Jacksonville, FL. After fulfilling her military 

service obligation, she served as an NCIS Special Agent in the 

Washington, D.C. field office, where she participated in 

counterintelligence investigations and counterespionage 

operations. Ms. Solari can be contacted at (912) 267-3408 or 

Jennifer.solari@dhs.gov.

Johnnie Story retired from the City of Atlanta Office of the 

Solicitor where he served in many different capacities, including 

Deputy Solicitor. He prosecuted cases for that office from 

September 1988 until May of 2007. He also trained and 

supervised assistant solicitors, trained police and code 

enforcement officers, and addressed community complaints. He 

assisted the City of Atlanta Council and Mayor’s offices with 

drafting proposed city ordinances and participated in strategy 

development sessions with various city officials. He is a 

graduate of St. Vincent College (B.S.) and Hofstra University 

Law School (J.D.). Mr. Story can be contacted at (912) 267-

2159 or johnnie.story@dhs.gov.
_______________

Contributors

vi

Michelle Story is a graduate of Georgia State University (B.A.), 

Cleveland Marshall School of Law (J.D.) and Cleveland State 

University (M.P.A.). She began her legal career working as an

attorney at the Atlanta Legal Aid Society and also served as 

Assistant Solicitor with the City of Atlanta Solicitor’s Office for 5 

years, where she prosecuted misdemeanor and city ordinance 

offenses. Ms. Story can be reached at (912) 554-4447 or 

michelle.story@dhs.gov.

Scott Wright graduated Cum Laude from Case Western 

Reserve University School of Law in 1998 and went on to work 

as a legal editor for Shepards / Lexis-Nexis before being hired 

as a Special Agent with the United States Secret Service in 

1999. He served for three years in the Detroit Field Office 

before coming to the Legal Division in September 2002. He is 

also a veteran of Operation Desert Storm and a former 

firefighter with the City of Huntsville, Alabama. Mr. Wright can

be contacted at (912) 261-4112 or scott.wright@dhs.gov.