HOMELAND

SECURITY

FEDERAL LAW ENFORCEMENT 

TRAINING CENTER

 GLYNCO, GEORGIA

LEGAL DIVISION

HANDBOOK

2012
FLETC 

LEGAL DIVISION 

WEB SITE

www.fletc.gov/legal

Podcasts 

THE INFORMER 

Articles 

Training Programs 

Links 

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Videocasts 
Foreword 

November 2011

The mission of the Federal Law Enforcement Training 

Center (FLETC) is to serve as the federal government‘s leader for 

and provider of world-class law enforcement training. As a 

division of the Office of Mission Integration, the Legal Division 

(LGD) is committed to delivering the highest quality legal 

training to both basic and advanced law enforcement 

personnel. In fulfilling this mandate, LGD instructors provide 

training on all areas of criminal law and procedure, including 

Constitutional law, authority and jurisdiction, search and 

seizure, use of force, self-incrimination, courtroom evidence, 

court testimony, electronic law and evidence, criminal statutes, 

and civil liability. While a large part of the LGD training mission 

focuses on newly hired law enforcement officers, the LGD also 

provides training for advanced law enforcement officers and 

attorneys in the Continuing Legal Education Training Program 

(CLETP) and the Police Legal Advisor Training Program (PLATP). 

The LGD also provides legal training for law enforcement 

instructors in the FLETC Instructor Legal Training Program 

(FILTP). 

In this spirit, we offer our Handbook. This edition 

includes materials for basic training, advanced training, and for 

field use. The Legal Division Reference Book is a companion to 

the Handbook. The Additional Resources section in it contains 

numerous pieces of legal information helpful in your day-to-day 

activities as a law enforcement officer. It is our hope in the LGD 

that the Handbook can serve law enforcement students and law 

enforcement officers alike. 

While this text provides an exceptional review of 

important legal concepts, you should not limit yourself to this 

publication. An additional resource for federal, state and local 

law enforcement officers and agents is the LGD website: 

www.fletc.gov/legal
Located there are a number of resources including 

articles, podcasts, links, federal circuit court and Supreme 

Court case digests, and The Federal Law Enforcement 

Informer. The Informer is published monthly and 

includes articles and federal circuit court and Supreme Court 

case summaries of import to law enforcement. 

I would like to extend a special thank you to the following 

individuals who contributed their time and expertise by 

reviewing the chapters of this Handbook in an effort to make 

them as user-friendly as possible: Mark J. Baskfield, Ricardo 

Carrasquillo, Retired Special Agent William Embick, Retired 

Special Agent Preston Farley, Program Specialist Steve 

Hemenway, Chad Hersey, Instructor Jason Lynema, Sergeant 

Tod Ritacco, Captain Noreen Schirmer, Instructor Tim Sperry, 

Special Agent Lee Stovall, Instructor Ken Tassie, Katherine 

Thomas SVC, and Darlene Langum Wilder, Division Chief, TIM 

Student Services.

Along with the entire staff at the FLETC Legal Division, I 

wish you success in your efforts. We hope to continue to provide 

excellent legal training programs, tools, and resources 

throughout your law enforcement career. 

Poppi Ritacco 

Editor

poppi.ritacco@dhs.gov
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.............21

Chapter Three – Constitutional Law.................37

Chapter Four – Courtroom Evidence................65

Chapter Five – Courtroom Testimony..............99

Chapter Six – Criminal Law............................117

Subpart A – Assault....................................125

Subpart B – Bribery....................................131

Subpart C – Federal Firearms Violations....135

Subpart D – Federal Drug Offenses.............145

Subpart E – The Entrapment Defense........149

Subpart F – False Statements....................155

Subpart G – Theft......................................159

Subpart H – Federal Fraud Statutes...........167

Chapter Seven –

Electronic Law and Evidence.....................183

Chapter Eight – 

Federal Court Procedures..........................217

Chapter Nine – Fourth Amendment...............271 
Chapter Ten – 

Government Workplace Searches..............383

Chapter Eleven – Officer Liability..................399 

Chapter Twelve – 

Searching and Seizing Computers.............427

Chapter Thirteen – 

Fifth and Sixth Amendments.....................453

Chapter Fourteen – Use of Force...................483 

Index 
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 Authority and Jurisdiction of 

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Chapter One 

Authority and Jurisdiction of 

Federal Land Management Agencies

I. INTRODUCTION..................................................................... 1

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

III. TYPES OF JURISDICTION ........................................................ 3

IV. TERRITORIAL JURISDICTION................................................... 3

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

1. Exclusive Jurisdiction ...................................................... 4

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............................................. 9

A. Specific Statutory Subject Matter Jurisdiction ...................... 9

B. Cross Designation of Officers .............................................. 10

C. Jurisdiction Over State Offenses ......................................... 11

D. Assimilative Crimes Act - 18 U.S.C. § 13 ............................. 11

E. State Peace Officer Authority ............................................... 11

F. Cross-Designation as State or Local Officer ......................... 12

G. Citizen‘s Arrest or Detention Authority................................ 12

VI. THE CODE OF FEDERAL REGULATIONS (CFR)..........................13

A. Enabling Legislation ............................................................ 13

VII. SIGNIFICANT STATUTORY PROVISIONS....................................14

A. Lacey Act ............................................................................ 14

B. Endangered Species Act ...................................................... 15

C. Marine Mammal Protection Act (MMPA) of 1972 .................. 16

D. Archaeological Resources Protection Act of 1979 ................. 16

E. Bald Eagle Protection Act of 1940 ....................................... 17

VIII. ADMINISTRATIVE INSPECTION AUTHORITY...............................17

36 C.F.R. 3.4 Purposes for vessel inspection ........................ 18

***** 

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 
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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 8 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. 

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 written as 16 U.S.C. § 3. The U.S. Code is officially 

published every six years. In more formal writing, the year of 

the last official publication of the Code is included in 

parentheses: 16 U.S.C. § 3 (2006). If a 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 specific 

federal agencies to adopt regulations to implement their 

statutory authority. This is called ―enabling legislation‖ 

because it enables and authorizes the agency to adopt 

regulations for those areas specified in the statute. Without 
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such enabling legislation, the agency would not have authority 

to adopt regulations. Some of these regulations define crimes 

and establish punishments for violations of the regulation. 

These violations are 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. In formal writing, the year of the most recent 

version is included in parentheses: 36 C.F.R. § 4.31 (2011).

Occasionally, other sources of authority, such as treaties, 

may apply, particularly in relation to Indian lands and 

jurisdiction over coastal waters. 

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 has three 

components in federal law. The first type of territorial 

jurisdiction relates to what authority the federal government 
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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 

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. One method is for the state to 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. 

Exclusive and concurrent jurisdiction are discussed in the 

following sections. 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. 

Along with other considerations, the method and terms of 

the acquisition of the property determine 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 
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state, except that state and local officers have the authority to 

serve criminal and civil 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 enforce their respective criminal laws and 

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 

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, federal law enforcement officers 

and agents may also enforce federal statutes or regulations 

enacted to protect these proprietary areas. 

Two kinds of federal statutes may be enforced even in a 

proprietary jurisdiction: 

(a) Statutes of General Application 

Many federal statutes can be enforced throughout the 

United States or in any other place where the United States has 

jurisdiction. The Constitution empowers Congress to pass such 
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statutes in order to protect and control uniquely federal 

functions. For example, it is a crime throughout the United 

States to assault a federal officer who is performing federal 

duties. The assailant can be prosecuted whether his crime is 

committed on or off federal property. Other examples of these 

types of statutes include: 18 U.S.C. § 3 (2006) (Accessory After 

the Fact); 18 U.S.C. § 201 (2006) (Bribery of Public Officials and 

Witnesses); 18 U.S.C. § 371 (2006) (Conspiracy); and 18 U.S.C. 

§ 641 (2006) (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. 

regulations whose application is limited to designated lands 

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

18 U.S.C. § 41 (2006) (Hunting, Fishing, Trapping; Disturbance 

or Injury on Wildlife Refuges); 18 U.S.C. § 1852 (2006) (Cutting 

or Removing or Transporting Timber on Public Lands of United 

States); 18 U.S.C. § 1853 (2006) (Cutting or Injuring Trees on 

Land Reserved or Purchased by the United States or Upon Any 

Indian Reservation); and 18 U.S.C. § 1854 (2006) (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 (2011) (Trespassing); 36 C.F.R. § 4.31 (2011)

(Hitchhiking); and 36 C.F.R. § 4.23 (2011) (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 

known as the ―special maritime and territorial jurisdiction‖ of 

the United States (SMTJ). 18 U.S.C. § 7 (2006) defines these 

places. Several descriptive categories are included within the 

definition, the most significant being § 7(3). This section 

provides: 
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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 and areas 

are also designated in the statute. Some of these are: 

High Seas and other waters... not under the 

jurisdiction 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

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

Islands, rocks or keys containing guano if 

designated by the President 

Spacecraft while in flight 

If an offense specifies that the crime must be committed 

in 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. 
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C. Agency Specific Territorial Jurisdiction

The third category of territorial jurisdiction is agency 

specific territorial jurisdiction. If and only if Congress has 

passed enabling legislation, the agency can adopt regulations 

applying to the federal land it controls and set criminal 

punishments for violations of these regulations. So long as the 

misconduct occurs on the agency‘s land, it can be punished 

regardless of whether the land is an area of exclusive, 

concurrent or proprietary jurisdiction. For example:

The National Park Service has jurisdiction over 

offenses that occur within the National Park system 

and over the arrest of persons fleeing from that 

system. 16 U.S.C. § 1a-6 (2006).

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 (2006).

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) 

(2006).

The Bureau of Reclamation has jurisdiction over 

offenses that occur within a Reclamation project or 

on Reclamation lands. 43 U.S.C. § 373b (2006).

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) (2006).
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The United States Fish and Wildlife Service and 

National Marine Fisheries Service do not have 

specific geographical boundaries, except as may be 

defined in specific statutory or regulatory provisions 

for which those agencies have subject matter 

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

(2006).

The territorial jurisdiction of Department of 

Defense Land Management Enforcement Officers

is determined by DOD directives or other 

regulations.

V. Subject Matter Jurisdiction and Statutory Arrest 

Authority 

Subject matter jurisdiction relates to the specific offenses 

over which a 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. Federal 

statutes also give specific statutory arrest authority to law 

enforcement officers of each agency. These statutes, in effect, 

define the primary mission of the agency‘s law enforcement 

officers. It follows that the agency statute which specifies 

statutory arrest authority is the primary source of arrest 

authority for officers of each agency. 

A. Specific Statutory Subject Matter Jurisdiction and 

Statutory Arrest Authority

Some land management agencies and their officers have 

full law enforcement power and statutory arrest authority over 

all federal offenses, but only within the limited territorial 

jurisdiction of that agency. For example, National Park Service 

officers generally have the authority to arrest violators for 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. 
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National Park Service officers also have the authority to arrest 

persons fleeing the park system to avoid arrest. 16 U.S.C. § 1a6(b)(1) (2006). By contrast, other agencies and their officers 

have no geographic limits on the power to arrest, but only may 

make arrests for offenses generally within their agency‘s 

purview. For example, LEO assigned to the National Forest 

Service ―have authority to make arrests for the violation of the 

laws and regulations relating to the forest reserves [national 

forests].‖ 16 U.S.C. § 559 (2006). Other agencies and their 

officers, however, have specific statutory or regulatory authority 

(and statutory arrest authority) only for certain specified 

offenses. For example, the National Marine Fisheries Service 

has approximately 37 different federal laws which it enforces. 

Given these variations, as well as the realities of 

Congressional revisions to the statutes and cross-designation 

(discussed below), land management officers must stay current 

on their statutory arrest authority and alert for changes to it. 

B. 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 to enforce another agency‘s 

statutes. First, the statute to be enforced must authorize an 

agreement between: (1) the agency given enforcement authority 

by the statute and (2) the agency which employs the officer to 

be cross-sworn. Second, there must be an agreement between 

the two agencies concerned. For example, a TVA officer may be

cross-sworn as a USFWS officer, thereby acquiring the 

additional authority to enforce crimes within the subject-matter 

jurisdiction of the USFWS. Similarly, the Secretary of 

Agriculture, on behalf of the Forest Service, can permit other 

federal agency personnel to enforce forest service laws and 

permits Forest Service personnel to assist other federal agencies 

pursuant to appropriate agreements. 16 U.S.C. § 559g (2006).
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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. In areas of exclusive or 

concurrent federal jurisdiction, state law may be useful where 

no federal law governs the particular conduct involved. See the 

discussion, ―Assimilative Crimes Act – 18 U.S.C. § 13,‖ below.

D. Assimilative Crimes Act - 18 U.S.C. § 13 (2006)

The Assimilative Crimes Act sometimes adopts and 

applies state law to conduct occurring on federal lands. Three 

criteria must be met:

the United States has exclusive or concurrent 

jurisdiction,

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 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

In some states, federal law enforcement officers of 

specified federal agencies have limited or complete state peace 

officer arrest authority. For example, in Iowa, all federal law 

enforcement officers with federal arrest authority who are 

authorized to carry a firearm also have state arrest authority 

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

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

In still others, a state or local agency must request assistance 
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from the federal officer. Every state is different. It is important 

to know the law of the particular state in which you are working 

to determine whether you have state peace officer status. It is 

also important to know your agency‘s policy regarding state 

peace office authority. In particular, agency personnel do not 

exercise state peace officer authority unless their agency‘s 

policy permits their doing so.

F. Cross-Designation as State or Local Officer

You may acquire state jurisdiction by being deputized as 

a deputy sheriff or other state or local officer under the 

appropriate state law. Again, it is also important to know your 

agency‘s policy regarding cross-designation as a state or local 

officer. Agency personnel do not exercise this authority unless 

the agency‘s policy permits their doing so.

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 that are covered may differ widely. While 

more than one state may allow a citizen‘s arrest for a breach of 

the peace, they can 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. Using citizen arrest authority to 

make an arrest often will be beyond the scope of the officer‘s 

federal employment and can potentially expose the officer to 

personal civil liability if the arrest is improperly executed. For 

more information on this topic, see the discussion, ―The Federal 

LEO  ̳Good Samaritan‘ Act,‖ in the Officer Liability chapter of 

this Handbook. In sum, arresting under citizen‘s arrest powers 

is a high-risk procedure and should be used as a last resort. 
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VI. The Code of Federal Regulations (CFR) 

A. Enabling Legislation

Until Congress passes legislation enabling an agency to 

adopt regulations and enforce them, agencies cannot do so. 

When enabling legislation exists authorizing a 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 

regulations currently in force are published annually in the 

Code of Federal Regulations. Many of the violations enforced by 

land management law enforcement officers are violations of 

these 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 

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. 43 U.S.C. § 

1733(a) (2006).

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 
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Act 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 proceedings. 16 U.S.C. § 3 (2006).

Applying the broad rulemaking authority permitted by 

enabling legislation, federal regulations frequently extend the 

authority of these agencies into many areas not specifically 

addressed by Congressional statute. Agencies can use their 

rule making authority to create regulations that adopt state 

laws. 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. 

B. Examples

Numerous examples of agency regulations can be found 

in the Legal Division Reference Book. 

VII. Significant Statutory Provisions 

Land management agencies often have common interests 

in enforcing laws that may be under the jurisdiction of another

land management agency. Several significant statutory 

provisions related to land management allow for crossdesignation, although some do not. 

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 in 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 
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any activity involving the harvest of highly migratory species. 

16 U.S.C. §§ 3371-3378 (2006). While the U.S. Fish and 

Wildlife Service is a primary enforcer of Lacey Act violations, 

enforcement authority is assigned to agencies of the 

Departments of Interior, Commerce, Transportation, and 

Treasury. In addition, any of the appropriate lead 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) (2006). Thus, whether as 

part of those Departments or by agreement, USFWS, NMFS, or 

the Animal and Plant Health Inspection Service are involved in 

Lacey Act enforcement. 

B. Endangered Species Act

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 (2006). 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). Generally, USFWS manages 

land and freshwater species, while the National Marine 

Fisheries Service manages marine species, including 

anadromous salmon. 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) (2006)).
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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 (2006). The 

Departments of the Interior and Commerce are responsible for 

different aspects of this law. The Department of Interior 

handles U.S. takings of these species. The Department of 

Commerce handles importation of these species. The 

appropriate lead agency may, by agreement, use the personnel, 

services and facilities of any other federal agency in the 

enforcement of the Marine Mammal Protection Act. (16 U.S.C. § 

1377(a) (2006)). Either Secretary may also designate officers 

and employees of any state or of any possession of the United 

States to enforce the act. (16 U.S.C. § 1377(b) (2006)). 

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 

(2006) et seq. Each agency having archaeological resources on 

public lands under its jurisdiction has authority over those 

particular lands, but may also ask the Department of the 

Interior to assume authority. (16 U.S.C. § 470bb(2) (2006)). The 

Indian Arts and Crafts Act (18 U.S.C. §§ 1158, 1159 (2006)) 

criminalizes counterfeiting the Indian Arts and Crafts Board 

trademark (18 U.S.C. § 1158 (2006)) and falsely representing or 

suggesting that goods are an Indian product (18 U.S.C. § 1159 

(2006)). 25 U.S.C. § 305d (2006) allows the Board to ―refer an 

alleged violation of 18 U.S.C. § 1159 to any Federal law 

enforcement officer for appropriate investigation,‖
_______________ 

 Authority and Jurisdiction of 

 Federal Land Management Agencies 

17

and adds that ―a Federal law enforcement officer may 

investigate an alleged violation regardless of whether the 

Federal law enforcement officer receives [such] a referral.‖ 

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 (2006). The bald 

and golden eagle are actually protected by two acts of Congress: 

the Bald and Golden Eagle Protection Act (BGEPA)(16 U.S.C. §

668 (2006)) and the Migratory Bird Treaty Act of 1918 

(MBTA)(16 U.S.C. §§ 703-712 (2006)). The Department of the 

Interior has the primary responsibility for enforcement of this 

act. According to the statute, enforcement authority may be 

delegated also to state fish and wildlife authorities, but notably 

not to other federal agencies. 16 U.S.C. § 668b (2006).

With almost all of these significant statutory provisions, if 

an agency is not the primary enforcement agency, a 

Memorandum of Agreement and/or a cooperative agreement 

may be used to convey enforcement authority. 

VIII. Administrative Inspection Authority

If and only if authorized by statute or regulation, federal 

agencies and their officers may set up a reasonable regulatory 

inspection scheme and exercise administrative inspection 

authority. Many land management agency regulations include 

various types of inspection authority. For example, the National 

Park Service provision below, written in a question-and-answer 

format, illustrates the typical inspection authority for land 

management agencies. 
_______________ 

 Authority and Jurisdiction of 

 Federal Land Management Agencies 

18

36 C.F.R. § 3.4 (2011) For what purposes may 

my vessel be inspected?

(a) An authorized person may at any time stop 

and/or board a vessel to examine documents, 

licenses or permits relating to operation of the 

vessel, and to inspect the vessel to determine 

compliance with regulations pertaining to safety 

equipment, vessel capacity, marine sanitation 

devices, and other pollution and noise abatement 

requirements. 

(b) An authorized person who identifies a vessel 

being operated without sufficient life saving or 

firefighting devices, in an overloaded or other 

unsafe condition, as defined in United States Coast 

Guard regulations, or in violation of a noise level 

specified in § 3.15(a) of this part, may direct the 

operator to suspend further use of the vessel until 

the condition is corrected. 

As this provision illustrates, administrative inspections do 

not require a search warrant. Nor must an officer have 

reasonable suspicion or probable cause that a violation has 

occurred. 

The Supreme Court in Camara v. Municipal Court set out 

a three-prong balancing 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 because 

junkyards are commercial premises of a highly-regulated 

industry. In Burger, the three requirements were described as 

follows:
_______________ 

 Authority and Jurisdiction of 

 Federal Land Management Agencies 

19

There must be a substantial governmental interest.

The warrantless inspections must be necessary to 

further the substantial government interest. 

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. 

When all of these requirements are met, the courts have 

upheld inspection programs as ―reasonable regulatory 

schemes.‖ Inspections performed under such a program are 

legal. Criminal evidence discovered through such an inspection 

is admissible. 

But when an inspection is conducted as a ploy or 

subterfuge to locate and seize criminal evidence, that evidence 

will not be admissible. Inspections are constitutionally 

permitted because they are an effective way for the government 

to accomplish legitimate government missions besides

traditional law enforcement. Inspections are also discussed in 

the Fourth Amendment chapter of this Handbook. 

Recreational hunting, fishing, and boating are pervasively 

or closely regulated no matter where they occur. When they 

occur on federal public lands (such as National Parks), the 

government‘s interest is even more substantial. Individual 

inspections and vehicle checkpoints by federal law enforcement 

officers to enforce applicable regulations must be conducted in 

accordance with agency regulation or policy guidance 

concerning checkpoints and inspections. 

Officers conducting inspections and checkpoints are 

limited in two ways by the agency‘s reasonable regulatory 
_______________ 

 Authority and Jurisdiction of 

 Federal Land Management Agencies 

20

scheme. First, the officer‘s discretion to decide who will be 

inspected is limited. In the context of vehicle checkpoints, this 

is often done by randomizing the choice of which vehicle to stop 

or by stopping every vehicle passing through in a given 

timeframe. Second, the scope and extent of the officer‘s 

inspection must be limited to the purpose of the inspection. For 

example, an officer conducting an inspection during antlered 

deer season to ensure that hunters are taking legal bucks 

(instead of illegal does) is not able to check a pickup truck‘s 

ashtray. In sum, the government‘s discretion is limited and 

scoped by the reasonable regulatory scheme. It follows that the 

authority to conduct a boat safety inspection could not be used 

as a ploy or subterfuge to do a detailed search of a locked 

briefcase on board based on a groundless hunch that it might 

contain drugs. 
_______________ 

Conspiracy and Parties 

21

Chapter Two 

Conspiracy and Parties 

Part One – Conspiracy

I. INTRODUCTION...................................................................21

II. THE STATUTE ....................................................................22

A. Title 18 U.S.C. § 371 ........................................................... 22

B. The Elements ...................................................................... 23

1. Two or More Persons ...................................................... 24

2. Knowledge and Intent .................................................... 25

3. The Agreement ............................................................... 25

4. Unlawful or Fraudulent Means or Objective ................... 26

5. The Overt Act ................................................................. 27

III. THE LAW OF CONSPIRACY ....................................................28

A. The Doctrine of Merger/Double Jeopardy ............................ 28

B. Pinkerton Theory of Vicarious Liability ................................ 28

C. Late Joiners to a Conspiracy ............................................... 29

D. Withdrawal from a Conspiracy ............................................ 29

E. Statute of Limitations (18 U.S.C. § 3282) ............................ 30

F. Venue ................................................................................. 31

Part Two - Parties to Criminal Offenses

I. INTRODUCTION...................................................................31

II. AIDING AND ABETTING (18 U.S.C. § 2(A))...............................32

III. CAUSING THE COMMISSION OF A CRIME (18 U.S.C. § 2(B)) .......33

IV. ACCESSORY AFTER THE FACT (18 U.S.C. § 3).........................33

V. MISPRISION OF FELONY (18 U.S.C. § 4)................................. 34

***** 

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 
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Conspiracy and Parties 

22

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

danger they will get out of control, members of the conspiracy 

will recruit others to join their enterprise, and they will become 

more dangerous and difficult to immobilize. For all these 

reasons, the identification and targeting of multi-defendant 

criminal networks is essential to successful law enforcement. 

The conspiracy statutes can be used to great advantage 

by criminal investigators. Some of the advantages of a 

conspiracy charge include the ability (1) to get beyond the first 

layer of a criminal enterprise, (2) to allow the jury to see the 

whole picture behind a given criminal act, and (3) to enable 

investigators to be proactive, even prevent a substantive offense 

while still being able to charge felony criminal conduct. There 

are some disadvantages to a conspiracy charge as well 

including (1) the fact that such investigations can be timeconsuming, (2) there are difficulties with witnesses who are 

often co-conspirators, and (3) potential frustration over the lack 

of immediate results. 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. This chapter provides a working 

knowledge of the law of conspiracy.

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 course 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 

 

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

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________ 

Conspiracy and Parties 

23

defraud the United States, or any agency thereof 

in any manner or for any purpose, and one or 

more of such persons perform 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 

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
_______________ 

Conspiracy and Parties 

24

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. 

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 a 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.

Co-conspirators need not meet. They need not know each 

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

reasonably foresee, 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 who 

provided advice as to when the tractor-trailer could be easily 

taken, nor would he necessarily know the person who was 

purchasing the stolen goods. Furthermore, as long as there are 

at least two members, the conspiracy continues, even if the 

members change and the original members have withdrawn and 

are no longer involved in the conspiracy. 
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Conspiracy and Parties 

25

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 

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

concealment are often features of a successful conspiracy. 

Accordingly, the law allows for the conviction of individuals 

without requiring that they have knowledge of all of the details 

of the conspiracy or of all of the members participating in it. 

(b) Intent 

The defendant must intend to participate in the 

conspiracy. The government must present evidence that the 

defendant joined the conspiracy voluntarily, by agreeing to play 

some part in it with the intent to help it succeed. Showing that 

a defendant was aware of the plan or that the defendant 

approved of the plan is not enough by itself to prosecute. The 

defendant‘s intent to participate in the conspiracy must be 

proven. 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. With 

conspiracy, the mere agreement to violate the law or defraud 
_______________ 

Conspiracy and Parties 

26

the United States becomes criminal once an overt act in 

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

there proof of a formal agreement, and the agreement does not 

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

is often established through circumstantial evidence and may 

only be shown to be 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. An individual can be present with 

other known conspirators without intending to join or further 

the objects of the conspiracy. 

An individual 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 coconspirators‘ testifying about the defendant‘s role in the 

organization or indirectly by documenting a series of acts or 

events that demonstrate that the defendant acted in concert 

with and therefore 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) 

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

means to accomplish the objective, violate federal law or 

defraud the United States, prosecution under § 371 is not 

available. Note that the objective of the conspiracy does not 

have to be a crime. It is sufficient to show that the 
_______________ 

Conspiracy and Parties 

27

contemplated objective would (defraud) 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 of a conspiracy is 

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 

conspiracy charge is still complete the moment the first overt 

act in furtherance of the agreement is committed.

5. The Overt Act

The final element in a conspiracy prosecution under § 

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

must commit 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. The act must 

be done in furtherance of the agreement. For example, if two 

individuals agree to rob a bank and then one of them purchases 

ski masks to use in a robbery and the other then steals guns to 

use in the robbery, each co-conspirator has committed an overt 

act in furtherance of the agreement. Either act would be 

sufficient to complete the offense of conspiracy to rob the bank. 

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. 
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Conspiracy and Parties 

28

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 do so without 

any intervening overt acts, 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. 

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. Unlike those inchoate offenses, 

conspiracy, which is also an inchoate offense, does not merge 

into the substantive offense. Conspiracy to commit a 

substantive offense has different elements than the substantive 

offense and will survive a double jeopardy challenge when both 

are charged using the exact same evidence. 

B. Pinkerton Theory of Vicarious Liability

Conspirators are criminally responsible for the reasonably 

foreseeable acts of any co-conspirator that are 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 Customs and Border Protection Officer would be a 
_______________ 

Conspiracy and Parties 

29

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. One 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. 

C. 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. ―Late joiners‖ do not have to commit an overt act, 

they only have to join an ongoing conspiracy. ―Late joiners‖ 

take the conspiracy as they find it. Late joiners are not only 

criminally liable for the conspiracy they joined, but also for any 

reasonably foreseeable acts committed 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 co-conspirators 

are admissible at the trial of the ―late joiner,‖ in order to show 

the existence of the conspiracy. 

D. 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 perform 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 
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Conspiracy and Parties 

30

conspirator or law enforcement personnel. Withdrawal is an 

affirmative defense. The burden is on the defendant to prove 

that he has withdrawn.

If an individual validly withdraws from a conspiracy, the 

statute of limitations (explained below) 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. 

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

The statute of limitations for the crime of conspiracy is 

five years and can run from various dates depending on the 

facts of each case. The statute of limitations begins to run from 

the date the conspiracy is completed, terminated, or 

abandoned. The statute of limitations can also 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 substantive 

offense was committed. 
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Conspiracy and Parties 

31

F. 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, 

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. 

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.
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Conspiracy and Parties 

32

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

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, a 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 

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‖) may suffice. 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. 

 

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

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________ 

Conspiracy and Parties 

33

Finally, a crime must actually be committed in order to 

charge an individual as an aider and abettor. 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)

3

An accessory after the fact is one who, with knowledge 

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 the offense of 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. Thus, when a 

family member lies to the police about the whereabouts of a 

sibling who is involved in a theft of government property to 

protect the sibling from being arrested and punished for the 

theft, the family member is an accessory after the fact to the 

theft. As with aiding and abetting, the conviction of the 

principal is not necessary to convict a defendant as an 

accessory after the fact. 

 

3

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

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖ 
_______________ 

Conspiracy and Parties 

34

A defendant convicted of being an accessory after the fact 

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

defendant who is 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)4

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 with no requirement that the party intend to help the 

principal. 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 felony that was committed, the 

defendant performed either an affirmative act of concealment or 

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

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 alone 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. 

 

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 

35

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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36

NOTES
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37

Chapter Three 

Constitutional Law 

I. HISTORICAL BACKGROUND ...................................................38

II. FRAMING THE CONSTITUTION OF THE UNITED STATES ..............39

III. ORGANIZATION OF THE FEDERAL GOVERNMENT .......................39

A. The Legislative Branch ........................................................ 40

B. The Executive Branch ......................................................... 40

C. The Judicial Branch ............................................................ 40

D. A System of Checks and Balances ....................................... 40

IV. AMENDMENTS TO THE CONSTITUTION.....................................41

A. First Amendment ................................................................ 42

1. Religion .......................................................................... 42

2. Speech ........................................................................... 43

3. Peaceful Assembly ......................................................... 45

B. Fourth Amendment ............................................................. 46

C. Fifth Amendment ................................................................ 47

1. Double Jeopardy ............................................................ 47

2. Self-Incrimination .......................................................... 48

3. Grand Jury Indictment .................................................. 49

4. Due Process of Law ........................................................ 49

D. Sixth Amendment ............................................................... 50

1. Speedy Trial ................................................................... 50

2. Confrontation of Witnesses ............................................ 50

3. Compulsory Process ....................................................... 50

4. Assistance of Counsel .................................................... 51

5. Informed of the Charges ................................................. 51

6. Venue ............................................................................ 51

E. Eighth Amendment ............................................................. 51

F. Fourteenth Amendment ...................................................... 52

V. CONTROLLING SPEECH UNDER THE FIRST AMENDMENT .............53

A. Generally ............................................................................ 53

B. Government Action ............................................................. 53

C. Expression .......................................................................... 53

D. Government Restrictions ..................................................... 55

1. Content Based Restrictions ............................................ 55

2. Content-Neutral Restrictions ......................................... 56

E. Unprotected Conduct .......................................................... 58

F. Unprotected Speech ............................................................ 58

1. Fighting Words .............................................................. 59

2. True Threats .................................................................. 60

3. Advocating Imminent Lawlessness ................................. 62
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38

4. Clear and Present Danger .............................................. 63

5. Obscenity....................................................................... 64

***** 

I. Historical Background 

Americans lived under colonial charters for over a century 

before they declared their independence from England. 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. 

After the ratification of the Declaration of Independence, 

establishing the thirteen colonies as ―united‖ states, it became 

apparent that a central government was necessary to carry on 

the day to day affairs of the states. As a result, the Articles of 

Confederation were written during the early part of the 

American Revolution and approved in 1781. Deliberately kept 

weak by the authors, the national government left much of the 

power to the states. For example, some states adopted laws 

that hampered trade by discriminating against goods and 

services from other states. To retaliate, these states enacted 

taxes on commerce which only frustrated trade among the 

colonies. 

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

government under the Articles of Confederation had to be 

reorganized into a more viable form. In May of 1787, delegates 

from the states met in Philadelphia to revise the Articles of 

Confederation. However, the delegates soon recognized that 

simply revising the Articles would not work. They undertook to 

write a new document, the United States Constitution. 
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39

II. Framing the Constitution of the United States1

The United States Constitution is 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. 

 The Constitution is the source of all federal law. Our 

government is one of enumerated powers and it can only 

exercise powers granted to it. Article I of Section 8 grants to 

Congress the authority to make laws regarding specific 

subjects. 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 the people. 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. 

 Federal law enforcement officers must affirm their 

personal commitment to this contract between the people and 

the government. That is why federal 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 also to prevent government from 

infringing on the rights of the people. 

III. Organization of the Federal Government 

The authors of the Constitution divided the federal 

government among three separate but equal branches of 

government: the Legislative, Executive and Judicial Branches. 

 

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

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

Resources.‖
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40

A. The Legislative Branch

The Legislative Branch (Congress) consists of the House 

of Representatives and the Senate, together forming the United 

States Congress. Article I lists the specific powers of Congress, 

some of which include the power to collect taxes, regulate 

foreign and domestic trade, establish post offices and post 

roads, and establish federal courts inferior to the United States 

Supreme Court. 

B. The Executive Branch

The Executive Branch (President) is established in Article 

II of the Constitution. The President enforces the law, but other 

duties include the ability to enter into treaties with foreign 

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

federal crimes, and appoint members of the administration, 

such as cabinet members and United States Attorneys. The 

President is also the commander-in-chief of the military. 

C. The Judicial Branch

The Judicial Branch (The Court), consisting of the United 

States Supreme Court and the lower federal courts, 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 has the power to declare laws unconstitutional and is the 

final authority on matters of constitutional interpretation. 

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 

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: 
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41

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 

Senate, 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 Marbury v. 

Madison, the Supreme Court said that a law that is 

repugnant to the Constitution is void. 

IV. 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 
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42

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

new government would be the passage of the first ten 

Amendments to the Constitution, often referred to as the Bill of 

Rights. With the exception of the Ninth and Tenth 

Amendments, the Amendments are specific guarantees of 

individual liberties to the people. They proscribe government 

conduct that infringes on the rights of the people. Those 

Amendments do not deal with private actions. 

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. 

A. First Amendment

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. 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 speech (fighting words, true threats, obscenity) 

from First Amendment protections. 

1. Religion 

Two clauses, the establishment clause and the free 

exercise clause, protect freedom of religion. The establishment 

clause prohibits the establishment of a national religion or the 

preference of one religion over another. The clause was 
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43

intended to erect a wall of separation between church and state. 

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 beliefs. However, religious practices 

may be limited and must be balanced against broader social 

values. 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 they may incidentally affect some Native 

American religious practices because they prohibit the use and 

possession of peyote. 

2. Speech

The people have a First Amendment right to express their 

thoughts and ideas. Expression, even that which is offensive, 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

Knowingly conveying false information about an 

impending peril, such as yelling ―fire!‖ in a crowded theatre or 

yelling ―bomb!‖ on an airplane, creates a likelihood of danger to 

people. The most stringent protection of speech would not 

protect words causing a panic. (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 
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44

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 words that tend to incite an immediate 

breach of the peace. More than profanity, they are an invitation 

to fight. 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 in Miller v. 

California as ―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 is grossly 
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45

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. 

(e) Fraudulent misrepresentation

Fraud, perjury, libel, and slander are not protected 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 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 

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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46

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. 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.) 

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. 

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. 

People inside the United States, its territories, or possessions 
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47

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.

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). The Fourth 

Amendment does not regulate searches by private citizens. To 

be reasonable under the Fourth Amendment, government 

agents are normally required to get a warrant supported by 

probable cause. 

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. 

C. Fifth Amendment

Many concepts covered under the Fifth Amendment will 

be addressed in later legal courses, but several terms deserve 

explanation. 

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, 
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48

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. 

(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. 

(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 
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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. 

3. Grand Jury Indictment 

All ―infamous‖ crimes must be prosecuted by grand jury 

indictment. ―Infamous‖ means felony offenses. 

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. Due Process 

directly impacts several important law enforcement practices 

such as show-ups, line-ups, and photo arrays. 
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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. 

D. Sixth Amendment

Many of the federal criminal procedural rules have their 

origins in the Sixth Amendment. It is the basis 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 

brought to trial within specified timeframes. 

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. 
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4. Assistance of Counsel 

The defendant has a Sixth Amendment right to assistance 

of counsel regarding the offenses with which he is charged. 

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. 

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. 

EIGHTH AMENDMENT 

Excessive bail shall not be required, nor excessive fines imposed, 

nor cruel and unusual punishments inflicted. 

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.). 
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F. Fourteenth Amendment

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 law enforcement 

officer conducts an unreasonable search and seizure, that 

officer violates the Fourth Amendment. If a state law 

enforcement officer does so, he violates the Fourth Amendment 

as made applicable to the states through the Fourteenth 

Amendment.

V. 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 

Amendment protects people from unreasonable searches 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 juries for 

indictments, 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,‖ and 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 bails or cruel and 

unusual punishment. 
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VI. 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 as these are 

the places where the people have traditionally exercised their 

First Amendment rights. 

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. 

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 law enforcement officer unduly 

restricts expression, that agent violates the First Amendment. 

If a state law enforcement officer does so, he violates the First 

Amendment as made applicable to the states through the 

Fourteenth Amendment. Private action, however, never triggers 

First Amendment protections or any other constitutional 

protection, for that matter, 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 
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54

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. 

From a law enforcement perspective, the point to 

remember is this: the First Amendment protects both ideas. It is 

not the government‘s place to control ideas because they are 

wrong, offensive, or anti-American. In essence, the Constitution 

gives the people the right to express their ideas, and the 

responsibility to pick the best one. Those ideas 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. 
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D. Government Restrictions

Historically, the government has attempted to restrict 

expression for two reasons. 

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. 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. 

―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 
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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 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. 

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. 
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Non-public forums are under government control; but, 

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

(FLETC) 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. Federal 

law enforcement officers 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. 
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E. Unprotected Conduct

Conduct receives less First Amendment protection than 

other types of expression for a couple of reasons. First, the 

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 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 to 

intimidate any person or group of persons. The 

statute distinguishes protective, 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. The Supreme 

Court has identified categories of unprotected speech that the 

government can prohibit. Those categories are defined based 

on the subject matter of the speech and are exceptions to the 
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rule that the government may not regulate the message of the 

speaker. 

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 
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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. 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.‖ 

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 was not concerned 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 
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younger) 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. 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 the 

commission of a crime is not. 

4. Creating a clear and present danger 

Comments that place the public in fear of an impending 

peril are punishable. For example, telephoning security 

personnel at a federal building and saying, ―There‘s a bomb in 

the building.‖ Or, joking with a flight attendant on an airline 

and saying, ―I‘ve got a bomb.‖ The bomb threat is punishable 
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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. 18 

U.S.C. § 2252A proscribes possession of child pornography that 

has been transported in interstate commerce. 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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Chapter Four 

Courtroom Evidence 

I. INTRODUCTION...................................................................67

A. Forms of Evidence ............................................................... 67

B. Admissibility ....................................................................... 68

C. Applicability of the Federal Rules of Evidence (FRE) ............ 68

II. THE PROCEDURAL STAGES OF A CRIMINAL TRIAL.....................68

A. Suppression Hearings (Motions Hearings) ........................... 68

B. Voir Dire ............................................................................. 69

C. Opening Statements by Counsel ......................................... 69

D. The Case in Chief ................................................................ 69

E. The Defense Case ................................................................ 69

F. The Rebuttal Case ............................................................... 69

G. Closing Argument ............................................................... 70

H. The Charge to the Jury ....................................................... 70

I. Sentencing .......................................................................... 70

J. Post-Trial Proceedings ......................................................... 70

III. RELEVANT EVIDENCE ..........................................................70

A. The Requirement for Evidence to be Relevant ...................... 70

B. Other Crimes, Wrongs, and Acts of the Defendant .............. 71

IV. DIRECT AND CIRCUMSTANTIAL EVIDENCE ...............................73

V. LAY (AND EXPERT) WITNESS TESTIMONY ................................74

A. Handwriting ........................................................................ 75

B. Voice ................................................................................... 75

C. Emotional Condition ........................................................... 75

D. Not Requiring Scientific or Technical Knowledge ................. 75

VI. WITNESS CREDIBILITY AND IMPEACHMENT .............................75

A. Impeachment ...................................................................... 75

B. Factors that Affect a Witness‘ Credibility............................. 76

1. Bias ............................................................................... 76

2. Motive to Fabricate Testimony ....................................... 77

3. Inability to Observe or Accurately Remember ................. 77

4. Contradiction ................................................................. 77

5. Prior Inconsistent Statements ........................................ 77

6. Specific Instances that Indicate Untruthfulness ............. 77

7. Prior Convictions to Show Untruthfulness (FRE 609) ..... 78

VII. PRIVILEGES .......................................................................78

A. Holders of a Privilege ........................................................... 79

B. Waiver of Privileges ............................................................. 79

C. Privileges and the Rules of Evidence ................................... 80
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D. The Federal Privileges ......................................................... 80

E. Non-Federally Recognized Privileges .................................... 80

F. The Attorney-Client Privilege ............................................... 81

G. The Husband-Wife Privileges ............................................... 82

H. The Psychotherapist-Patient Privilege .................................. 83

I. The Clergy-Communicant Privilege...................................... 83

J. The Government-Informant Privilege ................................... 84

VIII. EVIDENTIARY FOUNDATIONS .................................................85

A. Laying a Foundation ........................................................... 86

B. Marking/Tagging Evidence.................................................. 86

C. Chain of Custody ................................................................ 86

D. Legal Admissibility and Preserving Trace Evidence 

Characteristics .................................................................... 87

E. Condition of the Evidence at the Time of Trial ..................... 87

IX. BUSINESS RECORDS AND PUBLIC DOCUMENTS .........................88

A. The Best Evidence Rule (FRE 1001; 1002) .......................... 88

1. An Original .................................................................... 89

2. Duplicates ..................................................................... 89

B. Self-Authentication ............................................................. 89

1. Public Records and Documents ..................................... 90

2. Business Records .......................................................... 90

C. Hearsay and Public Records and Business Records ............ 90

X. HEARSAY ..........................................................................91

A. Hearsay Defined .................................................................. 91

B. Hearsay Examples .............................................................. 91

C. Applicability of the Hearsay Rule ......................................... 91

D. Reason for the Hearsay Rule ............................................... 92

E. What is a Statement? .......................................................... 92

F. Truth of the Matter Asserted ............................................... 92

G. Non-Hearsay ....................................................................... 92

1. Statements of the Defendant .......................................... 92

2. Other Statements........................................................... 93

XI. EXCEPTIONS TO THE HEARSAY RULE .....................................93

A. Excited Utterances .............................................................. 93

B. Statements for Medical Diagnosis or Treatment .................. 94

XII. STATEMENTS, REPORTS AND COURTROOM TESTIMONY .............94

XIII. AUTHENTICATING INFORMATION CONTAINED IN COMPUTERS ......95

A. Involving Computer Forensics Experts ................................ 95

B. Rules of Evidence Issues when Authenticating ―Digital (or 

Electronic) Evidence‖ .......................................................... 96

C. Admissibility of Digital Evidence ......................................... 96

D. The Best Evidence Rule Requirement for an ―Original‖ ........ 97

E. Hearsay Issues .................................................................... 97
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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 to give it. The jury may 

consider the evidence as powerful proof or they might disregard 

it altogether. Collecting evidence in a way that complies with 

the Federal Rules of Evidence not only ensures that the judge 

will admit it complying with the rules also 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 opposing 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 initial appearances, detention 

and identity hearings, preliminary hearings, arraignments, 

Grand Jury hearings, sentencing proceedings, or appeals. 

The FRE also do not limit 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 or exclude the 

evidence. 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 admitted 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 may be presented 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 a 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, any defense witnesses presented can be cross-examined, 

defense 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 except in capital (death penalty) cases 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. Law 

enforcement officers 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 required 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, so 

he must have done 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 
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charged offense? One case held that a prior 

conviction for distributing drugs was 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. 
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Impeachment by contradiction. If the defendant 

makes a factual claim while testifying, that fact can 

be contradicted. The contradiction might include 

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‖ would be circumstantial evidence that it had rained 

during the night.

Sometimes you hear, ―That‘s just circumstantial evidence‖ 

or ―The case was entirely circumstantial.‖ Circumstantial 

evidence can be very powerful, and sometimes is even 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). Recent Supreme Court cases 

have emphasized that the Confrontation Clause demands incourt testimony of the experts who perform forensic analysis to 

determine, for example, the identity of controlled substances. 

See the Confrontation Clause discussion below in the Hearsay 

section.

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 
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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:

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 
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evidence can be offered during cross-examination or can be 

offered through the testimony of another witness. 

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 and rehabilitation occur in the 

courtroom, both require facts to be effective. The prosecutor 

depends on LEOs to find these facts. In particular, facts and 

evidence must be collected when they can be used: (1) by the 

Assistant United States Attorney (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 government witnesses who are impeached at trial. 

B. Factors that Affect 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.
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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 

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 position 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 was 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 must have done 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 only if the judge 

determines, ―its probative value, 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 proceeding, 

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 a person 

holds a privilege, LEOs may still attempt to question the person. 

If the person answers the question, the privilege is waived. 

LEOs should presume that the person may attempt to invoke 

the privilege at a later proceeding. To guard against this 

possibility, LEOs should obtain independent information that 

proves or corroborates what the holder of the privilege said.
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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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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 husband-wife 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 other 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-patient 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 the government to whom the 

communication was made. 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 LEOs 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. LEOs 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 the law enforcement officer.
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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 that evidence can be authenticated 

when it is offered in court. The evidence should be marked, 

tagged, or bagged in such a way that the person who found or 

seized it 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 

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. Law enforcement officers 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, mismarked or incomplete tags, bags, or 

chain of custody documents. 

Improperly recorded transfers of evidence on chain 

of custody documents (―broken‖ chain of custody).
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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. 

This process lent itself to errors in copying, and what was 

supposed to be an exact copy was not always so. Though many 
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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 

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.‖ Self-
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authenticating 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).

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 
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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). 

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. 
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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 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. 

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. 
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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. 

H. Confrontation Clause Requires That Witnesses 

Against the Defendant Testify at Trial

The Sixth Amendment‘s Confrontation Clause provides 

that ―the accused shall enjoy the right... to be confronted with 

the witnesses against him....‖ In recent years, the Supreme 

Court has read this strictly and demanded that the 

prosecution‘s lay and expert witnesses appear in court. There 

are exceptions. But generally, even if the prosecution could 

overcome a hearsay objection, it must still be able to produce 

its witnesses. LEOs taking witness statements must document 

how to track those witnesses down for trial. 

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, LEO 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 
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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. 

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 in a few other 

limited circumstances, witnesses cannot testify from their 

reports or notes. LEO should check with the AUSA about 

whether to bring reports or notes to trial. 

LEO reports, and notes, as well as written statements and 

notes of other witnesses, can be used to impeach a witness‘ incourt 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 
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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 

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 LEO

interview a witness and the witness needs to refresh their 

memory with an item, LEO 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. 
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B. Rules of Evidence Issues when Authenticating

―Digital (or Electronic) Evidence‖

Digital evidence is nothing but an electronic series of 0s 

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 
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modified that identifies the computer on which this was done. 

Forensic experts should look for this data. 

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(d): ―For electronically stored 

information, ―original‖ means any printout — or other output 

readable by sight — if it accurately reflects the information.‖

Thus, 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................................................................. 100

II. STAGES OF A CRIMINAL TRIAL ............................................100

III. EFFECTIVE WITNESS CHARACTERISTICS ...............................101

A. Meeting the Jury‘s Expectations........................................ 101

B. Characteristics that Jurors Expect of Witnesses ............... 101

1. Tell the Truth ............................................................... 101

2. Be Impartial and Objective ........................................... 101

3. Treat the Jury, Judge, and Counsel with Respect ........ 101

4. Be Prepared ................................................................. 101

5. Be Properly Attired ....................................................... 102

6. Demeanor Counts ........................................................ 102

7. Stay Serious ................................................................ 103

8. Avoid Having a ―Bad Attitude‖...................................... 103

9. Admit Mistakes ............................................................ 103

IV. ESSENTIAL LAW ENFORCEMENT TESTIMONIAL SKILLS ............104

A. Manner of Answers ........................................................... 104

B. Testimonial Skills that make LEO Testimony Convincing .. 104

1. Listen and Answer ....................................................... 104

2. Give Audible Responses ............................................... 104

3. Do not Volunteer Information ...................................... 105

4. Wait for Rulings on Objections ..................................... 105

5. Prosecutorial Assistance .............................................. 105

6. Speaking to the Judge ................................................. 105

7. Avoid Cop Talk ............................................................. 106

8. Just the Facts .............................................................. 106

9. ―I Don‘t Know‖ ............................................................. 106

10. ―I Don‘t Recall‖............................................................. 106

11. Positive and Definitive Answers .................................... 107

12. Memorized Testimony .................................................. 107

13. Speak to the Audience ................................................. 107

V. STATEMENTS AND REPORTS FOR COURTROOM TESTIMONY ......108

VI. IMPEACHMENT DURING CROSS-EXAMINATION ........................109

A. Direct Examination, Cross-Examination, and Impeachment

......................................................................................... 109

1. Direct Examination ...................................................... 109

2. Cross-examination ....................................................... 109

3. Impeachment ............................................................... 110

4. Redirect Examination .................................................. 110

B. LEOs and the Frustration of Cross-Examination ............... 110
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C. Common Cross-Examination Techniques .......................... 111

1. Yes or No Questions ..................................................... 111

2. Putting Words in the Witness‘ Mouth........................... 111

3. The Badgered Witness.................................................. 111

4. Do Not Volunteer Information ...................................... 112

5. Pretrial Discussions with the Prosecutor ...................... 112

6. Repetitive Questions .................................................... 112

7. Compound Questions .................................................. 112

8. Rapid-fire Questions .................................................... 113

9. Admission of Mistakes ................................................. 113

10. Possibilities .................................................................. 113

11. Friendly Defense Counsel ............................................ 113

12. Twisting Prior Testimony.............................................. 114

13. Conflicting Testimony Among Witnesses ...................... 114

14. Impeachment by Prior Statements ............................... 114

15. Corrected Statements .................................................. 114

16. Previous Lies ................................................................ 115

VII. SUBJECTS NOT TO BE VOLUNTEERED WHEN TESTIFYING ..........115

A. Prior Criminal History ....................................................... 115

B. Advisement of Constitutional Rights ................................. 115

C. Suppressed or Inadmissible Evidence ............................... 116

***** 

I. Introduction 

No matter how well law enforcement officers perform their 

duties, justice ultimately depends upon the facts presented in 

court and how they are perceived by the jury or the court in a 

judge alone trial. In many criminal trials, the law enforcement 

officer is the key witness in the government‘s case. Since a 

witnesses‘ credibility is crucial to obtaining convictions, it is 

imperative that the law enforcement officers are familiar with 

traits and characteristics that can both favorably an adversely 

impact their credibility at trial. 

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 material is located 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

Juries expect government witnesses to tell the truth at all 

times. Justice is served only when the truth is provided to the 

fact finder. There is no substitute for the truth – our criminal 

justice system mandates the truth be told, regardless of who 

may ultimately be helped or hurt. 

B. Characteristics that Jurors Expect of Witnesses

1. Tell the Truth 

The most important characteristic of any witness at trial 

or hearing is to tell the truth. There is no substitute for telling 

the truth. A witnesses‘ failure to tell the truth is not only a 

crime, it is a morally reprehensible act that jeopardizes the very 

foundations of the criminal justice system. 

2. Be Impartial and Objective 

A witness who impartially, objectively and dispassionately 

tells the truth strengthens the justice system beyond 

measurement. Such a witness is more likely to be believed by 

the fact finder. 

3. Treat the Jury, Judge, and Counsel with 

Respect 

Treat counsel and the judge with absolute respect. Be 

professional. Do not show deference to the government. Treat 

all counsel the same. 

4. Be Prepared 

To be an effective witness, an officer must be thoroughly 

prepared. As a general rule, there is a substantial delay 

between time of arrest and trial. Delays usually benefit the 

defendant by fogging the memory of witnesses. To counter this 
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natural tendency, witnesses should thoroughly review their 

notes, reports, case file, etc., associated with the case. Even 

visiting the crime scene may prove to be helpful. Reviewing 

physical evidence in the case can help as well. Furthermore, it 

is perfectly permissible to review your testimony with your 

prosecutor and actually practice answering questions from the 

witness stand. As the old adage goes, proper prior preparation 

prevents poor performance. 

5. Be Properly Attired 

A witnesses‘ credibility can be adversely affected by his or 

her choice of clothing, jewelry, and personal grooming 

standards. Common sense tells us that we should dress for 

success. A clean, pressed suit or coat and tie and minimal 

tasteful jewelry is the order of the day. Be smart. Clothing that 

is clean, pressed and conservative in appearance is appropriate 

for court appearances. Remember, you are making non-verbal 

statements in the way you dress and carry yourself. 

Almost every federal court will have court rules as to what 

is permitted in terms of appropriate dress for all witnesses. 

Furthermore, court rules will identify those items that are not 

permitted in court. Do not violate court rules regarding attire or 

jewelry, etc. Some federal judges have a penchant for ensuring 

that you learn your lessons the hard way via contempt 

proceedings. This is especially true with respect to carrying 

weapons, cell phones, pagers, noise making jewelry, etc. 

Although it may be fashionable to wear tie tacks of the 

trade (handcuff or smoking gun tie tacks, a hangman‘s noose, 

or pins of social, fraternal, or religious organizations in your 

area of operations), it is not fashion statement you want to 

make in court. This type of jewelry is not acceptable when 

testifying! 

6. Demeanor Counts 

Juries and judges consider your demeanor in evaluating your 

credibility (believability). How you approach the witness stand, 
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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 is readily 

understood to be an attempt to ridicule. Bottom line – be 

professional! 

7. Stay Serious 

Trials are serious occasions. When you testify, project a 

professional image 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 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.‖ Avoid 

sarcastic responses.

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 the subject matter of the mistake comes up during crossexamination or redirect examination, make it a point to identify 

the mistake and correct it. If not given the opportunity to 

correct the mistake during your testimony, inform the AUSA at 

the earliest opportunity. 
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IV. Essential Law Enforcement Testimonial Skills 

A. Manner of Answers

Your demeanor and the manner in which you answer 

questions are 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 can lead 

the jury to question your credibility. 

2. Give Audible Responses 

Court reporters take down verbatim testimony. Nodding 

your head to answer a question cannot be recorded by the court 

reporter. Do not nod your head to give a ―yes‖ or ―no‖ answer. 

Speak so that the court reporter can record the response. 

Similarly, if you use a gesture by holding your hands apart to 

provide a visual portrayal of size and say, ―It was this big,‖ the 

record will not reflect the information you hope to convey. You 

must provide an audible response that matches the size you are 

conveying with your hands – ―it was 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. Be 

mindful that some courtrooms have microphones. Do not 

assume the microphone is for sound projection. Many 

microphones are only for recording testimony. 
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3. Do Not Volunteer Information 

Answer the question that is asked. Do not add 

information that is not requested. Do not allow subsequent 

silence by counsel to lead you to believing that more 

information is expected and counsel is waiting for you to 

respond. This is a common tactic used to get you to say things 

that were not requested. The general rule when testifying is to 

address the question asked and then wait for the next question. 

Do not put information into your answer that is not in response 

to the question which is asked. 

4. Wait for Rulings on Objections 

When counsel object to questions, stop speaking. Allow 

the judge to rule on the objection. If an objection has been 

overruled, and you have forgotten the question, ask counsel to 

repeat the question. If the judge sustains the objection, say 

nothing further on that subject. Simply wait for the next 

question. Continuing to testify after an objection and before a 

ruling is unprofessional and will result in an admonishment 

from the court. 

5. Prosecutorial Assistance 

When asked a question that you do not like, do not look 

to the prosecutor or others for help. If counsel‘s question is 

improper, the prosecutor will object. At times, there may be 

tactical reasons that the prosecutor may want you to answer 

questions that are objectionable. Do not second guess the 

tactics of your prosecutor. However, if you do not understand 

the question or it is unclear, you can ask that the question be 

repeated or rephrased. 

6. Speaking to the Judge 

Unless the judge speaks to you directly, you should not 

address your questions or concerns to the judge. If the judge 
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does address you directly, respond by using the term ―Your 

Honor‖. Do not call him ―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.‖ These 

terms have particular meanings that are not known to the 

general public. To be an effective witness, talk to jurors in a 

language they will understand. Simply explain in everyday 

language what you did. If you use those terms, then explain 

them in your response to the question. 

8. Just the Facts 

Testify only about matters that are within your personal 

knowledge. You can testify to what you observed, heard, 

smelled, tasted, and touched. Do not try to testify as to what 

others observed. Let other witnesses testify to what they 

observed. Do not offer an opinion unless you are specifically 

asked for the opinion. Witnesses must have a basis of 

knowledge based on facts to provide an opinion. 

9. “I Don’t Know”

―I do not know‖ means that you never knew the 

information that is the subject of the question. 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. If true, it is okay to say it. This 

answer is not a truthful one if you remember, but just do not 

want to answer the question that is asked. 
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11. Positive and Definitive Answers 

Give positive, definite answers. Avoid saying, ―I think,‖ or 

―I believe.‖ What you think or believe is generally not relevant. 

If you do not know, say so. If you cannot offer a precise answer 

but can provide an estimate, be sure to state that it is only an 

estimate. 

12. Memorized Testimony 

Don‘t memorize reports so that you can provide a 

verbatim response. Prepare for trial and review the case, but 

do not memorize what you are going to say. Memorized 

testimony is suspect. No one wants to listen to a robo-witness.

13. Speak to the Audience 

Make it a point to ensure you have eye contact with those 

to whom you are addressing. Maintaining eye contact with 

those you address is an intangible human attribute that 

provides a measure of respect to the recipient. By maintaining 

eye contact with the jury, you provide deference to the jury, 

while simultaneously establishing your own credibility in their 

eyes. Although eye contact is important, you will have to 

measure the amount of eye contact you provide to counsel. At 

trial, when a jury is present, the most important group of people 

in the court that require your direct attention is the jury. Since 

the jury is the fact finder who makes life altering decisions 

concerning the defendant, you should address the jury and not 

counsel. This will require you to look at the jury while 

answering questions of counsel. It is not necessary to spend 

100% of the time looking at / addressing the jury because not 

every answer will warrant that type of effort. However, for 

important aspects of your testimony, address the jury. It will 

have a huge impact as to how they evaluate your testimony. 
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V. Using Statements and Reports to Aid and Prepare for 

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 

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 will be made available to 

opposing counsel. They can be used on cross examination for 

the purpose of impeachment. 

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 
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available in court should the AUSA need to refresh the witness‘ 

memory. 

VI. Impeachment of Witnesses during Cross-Examination 

A. Direct Examination, Cross-Examination, and 

Impeachment

1. Direct Examination 

When counsel calls a witness to the stand to testify, the 

witness is ―testifying on direct examination.‖ Direct examination 

questions are opened ended – ―tell me what happened.‖ Direct 

examination questions may not suggest the answer in the 

question that is asked. Direct examination questions will 

ordinarily begin with who, what, why, where, when, or how. In 

effect, direct examination questions allows the witness to 

explain in their own words what happened. 

2. Cross-examination 

When the counsel that called the witness to the stand has 

finished questioning the witness, the witness is passed to 

opposing counsel for cross-examination. On cross-examination, 

opposing counsel is permitted to ask leading questions. 

Leading questions are framed in a way which evokes a specific 

response from the witness. In effect, leading questions allow 

counsel to suggest the answer and the witness simply agrees or 

disagrees with the question. So, instead of having to ask a 

question like, ―What happened‖, counsel could ask ―Isn‘t it true 

Officer Smuckatello that you pulled your pistol on my very 

attractive 17 year old female client, pointed it at her head, 

forced her face down on the ground, handcuffed her hands 

behind her back, and then placed your bare hands over various 

parts of her body ostensibly for the purpose of looking for a 

weapon?‖ 

Cross-examination can at times be very unobtrusive. 

However, as the previous example suggests, cross-examination 

can also be designed to put a twist on facts to make the 
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witnesses acts appear to be unseemly, crude, self-serving, 

unprofessional and even criminal. 

A professional response to such an inquiry might have 

the officer responding as follows: ―Yes, based on the facts 

known to me at the time, I had a reasonable basis for believing 

your client was armed and dangerous, so I pulled my weapon, 

pointed it at her, ordered her to the ground, handcuffed her, 

and then conducted a frisk for weapons. A frisk is a pat-down 

for weapons. It is a limited search for the sole purpose of 

locating weapons that could harm me. I performed these duties 

in accordance with the law.‖ 

3. Impeachment 

On cross-examination, an attorney is permitted to 

impeach the witness. Impeachment is used to attack the 

credibility of the witness. There are many ways to impeach 

testimony. Often the during the impeachment process, the 

witnesses‘ professionalism and integrity are attacked. 

Regardless of counsel‘s method, officers must always ensure 

that they tell the truth. 

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. Your 

opportunity to explain answers or expand on a yes or no answer 

may come after cross-examination during redirect examination. 

On redirect, government counsel will ask questions that allow 

you to explain your testimony during cross-examination. 

B. LEOs and the Frustration of Cross-Examination

You are trained to, 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 cross-
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examination techniques, and trust that your prosecutor on 

redirect examination will clear up confusion caused by the 

defense during cross-examination. 

C. Common Cross-Examination Techniques

Below are some common cross-examination techniques. 

Regardless of what technique is used, the obvious response is to 

always tell the truth. 

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 question 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. On cross 

examination, you may also answer each part of the compound 

question separately. 

2. Putting Words in the Witness’ Mouth

Trial advocates are trained to ―testify for the witness‖ on 

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 provide the correct 

answer.

3. The Badgered Witness 

Defense counsel knows that if a witness - especially a law 

enforcement officer - becomes angry on the witness stand, two 

things happen. First, you appear biased or not objective, 

because you look like you are taking sides. Next, you focus on 
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Courtroom Testimony 

112

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. Juries expect you to remain professional at all times. 

Don‘t walk into defense attorney traps. 

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. You should wait for the 

next question. 

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‖ or ―Yes, Sir‖, if that is the correct answer. 

6. Repetitive Questions 

The defense attorney may rephrase questions and ask the 

same question from a different angle. This is done to either 

emphasize a defense-favorable 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...‖ – when responding do not sound sarcastic. 

7. Compound Questions 

Often defense counsel will ask two questions in one. For 

example, defense counsel may ask, ―Officer, didn‘t you arrest 

my client and search him.‖ If you were both the arresting 
_______________ 

Courtroom Testimony 

113

officer and the officer that conducted the search the answer to 

the question is easy. But if you arrested his client but your 

partner searched him, then it is incumbent upon you to 

respond correctly. At trial, witnesses quite often fail to recognize 

that there are two questions being asked as one. If you do not 

recognize that there are two questions, you are playing directly 

into defense counsel‘s hands for subsequent impeachment. Be 

alert to these tactics and slow down your responses. 

 8. Rapid-fire Questions 

This technique is meant to rush the testimony, denying 

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. You control the pace 

of your own testimony. Do not feel obligated to follow the 

defense attorney‘s pace.

9. Admitting Mistakes 

―Have you ever made a mistake?‖ The answer will be 

―yes.‖ Do not be afraid to admit a mistake. Jurors find officers 

who honestly admit mistakes to be credible. We all make 

mistakes; it is a human condition. There is nothing wrong with 

making mistakes. 

10. Possibilities 

―Isn‘t it possible that....‖ Anything is possible, but in 

many cases not probable. Testifying that something is possible, 

but not probable, based upon the facts of the case, is 

responsive while remaining believable. If not allowed to provide 

a complete answer, a simple, ―Yes‖ or ―Yes, but not likely‖ will 

do. 

11. Friendly Defense Counsel 

The defense attorney may appear friendly to you during 

cross examination. This may lull you in to becoming overly 
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Courtroom Testimony 

114

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 Witness Testimony 

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. Testify to what you did and what you know! 

14. Impeachment by Prior Statements 

Showing a conflict between a witness‘s earlier statement 

or report and the witness‘s in-court testimony is powerful 

impeachment. Review your prior statements (preliminary 

hearings, grand jury testimony, motions hearings). 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 
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Courtroom Testimony 

115

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 told a lie before?‖ The answer will be yes; 

everyone has lied. Leave it to the prosecutor to conduct a 

redirect that any lie was never under oath, not in a report or in 

an official matter. 

VII. Subjects that should not be Volunteered when 

Testifying 

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 Involving 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 

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. 
_______________ 

Courtroom Testimony 

116

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. Suppressed Evidence

If the judge grants a motion to suppress evidence in a 

suppression hearing or at the trial, such evidence is not 

admissible in trial. The jury may not see or hear about the 

suppressed evidence. The jury is not to consider the 

suppressed evidence. 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, you should 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 cannot be referenced as well, 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. 
_______________ 

Criminal Law Introduction 

117

Chapter Six 

Introduction to Criminal Law

I. INTRODUCTION TO CRIMINAL LAW .......................................117

A. What is a Crime? .............................................................. 117

B. Elements of Criminal Statutes .......................................... 118

C. Felonies and Misdemeanors .............................................. 120

D. Attempts ........................................................................... 121

E. Jurisdiction and the Assimilative Crimes Act .................... 121

***** 

I. Introduction to Criminal Law 

The subject of criminal law is very broad. 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 and 

how state statutes are assimilated into federal law and can be

prosecuted in federal court.

A. What is a Crime?

A crime is an act, or failure to act, prohibited by law and 

punishable by the government. A tort is an act, or failure to 

act, for which the law provides a remedy for the victim through 

a civil action (claim and/or lawsuit). 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. Tort actions are brought by the victim 
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Criminal Law Introduction 

118

seeking compensation for the damages and/or injury suffered. 

Crimes and torts are not mutually exclusive remedies. For 

example, if a law enforcement officer is assaulted, the 

government could prosecute the perpetrator. In addition, the 

officer could pursue a tort action (sue) for the harm incurred 

during the assault. 

B. Elements of Criminal Statutes

On a few occasions, this text may refer to the ―common 

law.‖ You might also hear this term while on the job. ―Common 

law‖ refers to ancient rights, customs, and principles developed 

over time through the English court system. The courts 

actually adopted and followed the common customs known and 

used by the people throughout the entire English realm. 

Through this process, the principles and rules of criminal and 

tort law were developed. These principles and rules were 

eventually replaced by written statutes and the court decisions 

interpreting them. 

There are no common law crimes in the United States. 

All of our criminal laws are in written statutes (statutory law). 

Each criminal statute contains elements. Each element must 

be established to a probable cause threshold to substantiate a 

criminal charge. Each element must be proven beyond a 

reasonable doubt to obtain a conviction. 

Most crimes consist of both a prohibited act and a 

criminal intent. An individual must both intend to commit a 

prohibited act and then act in furtherance of that intent. 

However, that is not true for all crimes. For example, a parent 

could be criminally charged with child abuse for not acting to 

care for his or her child. Failing to act can be a crime. To 

convict for a criminal offense, the government must prove 

beyond a reasonable doubt that a defendant with the required

mental state performed (or failed to perform) a prohibited act 

that caused the proscribed social harm. 

There are two kinds of criminal intent (state of mind) 

offenses. 
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Criminal Law Introduction 

119

A general intent offense only requires the intent to do 

the prohibited act. No specific mental state, evil 

motive, or intent to violate the law is required. All that 

need be shown is that the act was done willfully, 

deliberately, intentionally, and was not accidental or a 

misadventure. If the act results in harm, it does not 

matter that harm was not intended; it is sufficient that 

the act was intended and that harm resulted. For 

example, if a defendant intentionally hits a person and 

gives him a bloody nose, it does not matter that the 

resulting harm of a bloody nose was not intended. All 

that is required to violate the statute is the intent to 

perform the act that results in harm. 

 

A specific intent offense expressly requires proof of a 

particular mental state. A specific intent offense 

requires proof that the perpetrator desires the 

consequences of the actions, as set forth in the 

statute. Common specific intent terms include, but 

are not limited to: intentionally, willfully, maliciously, 

purposefully, with intent to, through design, with 

malice aforethought, and premeditation. For example, 

burglary is breaking and entering with the intent to

commit a felony therein; it is unlawful to possess 

drugs with the intent to distribute. Thus, for specific 

intent offenses (offenses that contain these special 

terms), the government must prove beyond a 

reasonable doubt the statutory act (or failure to act), 

as well as the perpetrator‘s specific intent. 

Intent, a state of mind, can be difficult to prove. The 

suspect‘s own words, whether a confession or admission made 

to law enforcement or statements to others, are the best, most 

compelling proof of intent. It may also be possible to prove the 

required intent through the suspect‘s actions. For example, if 

someone has been stabbed in the chest with deep penetrating 

wounds 50 times, it can be reasonably inferred the perpetrator 

intended to kill the victim. 
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Criminal Law Introduction 

120

The elements of crimes are best explained by example. 

The federal crime of murder, 18 U.S.C. § 1111, is a specific 

intent offense. Murder requires a criminal act, the unlawful 

killing of a human being, and a specific intent, malice 

aforethought – the specific intent to kill when the act was 

performed. To prove the offense, the government must prove 

that a human being was unlawfully killed and that the person 

who took the human life did so with malice aforethought. 

Title 21 U.S.C. § 844, makes it an offense to knowingly or 

intentionally possess a controlled substance. Therefore, to 

secure a conviction, the government must prove that the 

defendant ―knowingly or intentionally‖ possessed a controlled 

substance. If the defendant agreed to hold his girlfriend‘s purse 

for her, he would in fact ―intentionally possess‖ the purse. 

However, the defendant would not be guilty of a crime unless 

the government could prove the defendant ―knew‖ the purse 

contained a controlled substance. 

Motive can be a very important issue for both the 

investigator and prosecutor. It can be used to solve crimes by 

identifying potential perpetrators and proving criminal intent. 

Motive can help explain the ―who and why‖ of a crime. However, 

motive itself is generally not a required element of proof of a 

crime. As a general rule, why someone committed the crime 

(motive) does not have to proven at trial. Hate crimes are an 

exception. To convict of a hate crime, the government must 

prove that the act was committed because of the special status 

– sex, age or race – of the victim. 

C. Felonies and Misdemeanors

All criminal statutes also require a penalty. Without 

penalties, our criminal system would have no meaning. These 

penalties can include fines, incarceration and death. The range 

of potential penalties is normally based on the severity of the 

offense.

Crimes are classified by the maximum penalty

authorized. Whether a crime is classified as a felony or a 

misdemeanor depends on the possible term of punishment 
_______________ 

Criminal Law Introduction 

121

authorized by the statute, not the actual sentence imposed. 

Title 18 U.S.C. § 3559 specifically classifies a federal felony as 

an offense for which the maximum term of imprisonment 

authorized by statute is more than one year. A misdemeanor is 

an offense for which the maximum term of imprisonment 

authorized by statute 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. (For further discussion of the 

classification of federal crimes, see Handbook Chapter Eight, 

Federal Court Procedures.) 

D. Attempts

An attempt to commit a crime is a crime. 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.‖ A substantial step must be 

more than mere preparation; it must be a substantial 

movement towards the commission of the offense. 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. 

E. Jurisdiction and the Assimilative Crimes Act

Jurisdiction is the power of the government to act when a 

criminal offense has been committed. In many cases, the 

federal government can act regardless of the location of the 

offense. For example, it is a federal crime to assault a federal 

employee and a federal crime to steal federal government 

property regardless of where the assault or theft takes place. 

For other violations, however, the federal government and its 
_______________ 

Criminal Law Introduction 

122

law enforcement officers are only empowered to act when the 

offense is committed on federal property. In some cases, the 

state in which the federal property is located may also have 

jurisdiction over the same offense. Whether the federal or state 

government, or both, can exercise jurisdiction depends on 

whether the federal government has exclusive, concurrent, or 

proprietary jurisdiction over the place where the offense 

occurred. 

Exclusive jurisdiction means that only the United States 

Government has criminal justice authority (jurisdiction) over 

the area. All policing, investigating, and prosecuting is 

conducted by the federal government because state and local 

authorities have no authority over areas of exclusive federal 

jurisdiction. 

Concurrent jurisdiction means that both the United 

States Government and the state government have criminal 

jurisdiction over the area. Both the United States and the state 

authorities can police, investigate and prosecute crimes 

committed within areas of concurrent jurisdiction. This means 

that an individual who commits an act in a place of concurrent 

jurisdiction that violates both federal and state law can be tried 

twice - once in state court and once in federal court. Each 

government makes an independent prosecutorial decision. 

Proprietary jurisdiction means that the United States has 

no more authority over the area than any other owner of private 

property. In other words, proprietary jurisdiction provides no 

special authority or power to the federal government. For 

example, if the federal government leases an office building to 

house various federal agencies, it has only proprietary 

jurisdiction. Most crimes committed in the building would be 

investigated and prosecuted by the state. However, if a federal 

government employee is assaulted there or if federal property is 

stolen from there, the perpetrator could also be prosecuted in 

federal court. 

Many criminal offenses found in state law are not found 

in federal law. This is important when investigating offenses on 

exclusive and concurrent jurisdiction property. What happens 
_______________ 

Criminal Law Introduction 

123

if someone commits an act on either exclusive or concurrent 

jurisdiction property that is a state criminal offense, but not a 

federal criminal offense? Does this mean that the perpetrator 

cannot be tried in federal court? The answer to this question is 

found in The Assimilative Crimes Act, 18 U.S.C. § 13. When 

acts occur on exclusive and concurrent jurisdiction property 

and there is no federal criminal statute that prohibits the 

conduct, The Assimilative Crimes Act allows the federal 

government to adopt a state criminal statute and prosecute it in 

federal court as a federal criminal offense. However, state 

criminal offenses cannot be assimilated if there is a federal 

statute that criminalizes the specific conduct. 
_______________ 

Criminal Law Introduction 

124

NOTES 
_______________ 

Assault 

125

Subpart A 

Assault on Federal Employees 

I. THE LAW OF ASSAULT AND BATTERY....................................125

I. ASSAULTING FEDERAL OFFICERS OR EMPLOYEES...................126

III. WHO IS COVERED? ...........................................................126

IV. “FORCIBLY” ....................................................................127

V. “ENGAGED IN OR ON ACCOUNT OF OFFICIAL DUTIES”..............127

VI. PENALTY .........................................................................128

***** 

I. The Law of Assault and Battery 

At common law, there were two basic kinds of assault –

an offer assault and an attempted battery assault. An offer 

assault is any willful threat to inflict injury upon another 

person with the apparent present ability and intent to do so. 

The offer need not make the intended victim fearful, but must 

give the victim reason to expect immediate bodily harm. For 

example, John commits an offer assault if he approaches Bob 

while holding a baseball bat and tells Bob that he is going to 

pulverize his head with it. It is reasonable for Bob to expect 

immediate bodily harm based on John‘s words and actions. For 

the expectation of harm to exist, the intended victim must be 

aware of the threat. There must be a present apparent ability 

and intent to inflict bodily harm. A threat of the use of force 

some time in the indefinite future (―One of these days, I‘m going 

to....‖) does not constitute an offer assault. An attempted 

battery assault is an unsuccessful battery. If John attempts to 

punch Bob, but misses him, John has committed an attempted 

battery assault. It is not necessary for the victim to be aware of 

the failed attempt. 

A battery is an intentional, harmful or offensive touching 

of another person, without consent. Actual injury is not 

required. Minimal physical contact can qualify as a violation. If 
_______________ 

Assault 

126

John successfully punches Bob 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 them. If John throws a rock at Bob and hits him in 

the head or spits in his face, he has committed a battery. 

II. Assaulting Federal Officers or Employees 

Title 18 U.S.C. § 1111entitled, ―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 are

prosecutable under § 111. 

 

Title 18 U.S.C. § 111 has two sections that cover 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. The first section of § 111 

protects current federal employees (and those assisting them) 

when (1) they are assaulted while performing their jobs, or (2) if 

not currently performing their jobs (off duty), they are assaulted 

because of something they did while performing their jobs. The 

second section of § 111 protects former federal employees (and 

those who assisted them) when assaulted because of something 

they did while a federal employee performing 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 

 

1

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

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________ 

Assault 

127

order to determine who is covered by § 111, it is necessary to 

examine § 1114. Title 18 U.S.C. § 1114 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 (including federal 

law enforcement officers) and every person who assists a federal 

employee in the performance of his official duties is afforded 

protection under § 111. 

IV. “Forcibly”

Title 18 U.S.C. § 111 makes it a crime to ―forcibly‖ 

assault, resist, oppose, impede, intimidate or interfere. 

―Forcibly‖ applies to each of the distinct ways in which the 

statute can be violated. For there to be a violation of § 111, the 

force element must be satisfied. Forcibly includes force actually 

used or imminently threatened. The government must establish 

the defendant‘s behavior would have reasonably inspired fear in 

a reasonable person. Proof of actual physical contact or threats 

or displays of physical aggression toward an officer, so as to 

inspire fear of pain, bodily harm or death suffices. Violently 

pounding on an officer‘s patrol car door or by advancing toward 

an officer in an extremely agitated manner would satisfy the 

force requirement. However, ―tensing up‖ in anticipation of 

arrest and disobeying orders to move and lie down, may make 

your job more difficult, but it does not by itself amount to an

assault. Mere passive resistance is not sufficient for a 

conviction under § 111. 

 

V. “Engaged in or on Account of the Performance of 

Official Duties”

Current federal officers and employees (and those 

assisting them) are covered by § 111 if assaulted while they are 
_______________ 

Assault 

128

―engaged in‖ the performance of official duties. For example, 

while on duty and making an arrest, a federal law enforcement 

officer is punched by the suspect. The suspect may be charged 

with assault under § 111. When a federal employee is 

assaulted while engaged in the performance of official duties, it 

is not necessary for the government to prove that the defendant 

knew that the person assaulted was a federal employee. 

Therefore, if an undercover officer is assaulted while performing 

undercover duties, the suspect may be charged under § 111 

even though he was unaware that the person assaulted was a 

federal officer. 

Current federal employees (and those assisting them) who 

are off-duty are covered by § 111 if assaulted on account of 

something done while performing official duties. For example, 

after having made an arrest earlier in the day, an officer, while 

off duty, is seen by the arrestee‘s brother. The brother punches 

the officer because of the officer‘s earlier arrest. He, too, may be 

charged with assault under § 111. 

Former federal employees (and those assisting them) are 

covered by § 111 if assaulted on account of something done 

while performing official duties. For example, a federal law 

enforcement officer arrests a suspect who is convicted and sent 

to prison. The officer leaves government employment. After his 

release from prison, the suspect finds and assaults the former 

federal officer because he is still angry at having been arrested. 

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 official duties. 

VI. Penalty 

When the defendant‘s conduct amounts to only simple 

assault (no touching), it is a misdemeanor. The maximum 

penalty for misdemeanor, simple assault under § 111 is not 

more than one year in prison. In an assault that involves 

contact, but does not result in bodily injury, the penalty is not 

more than eight years in prison. If the assault results in bodily 

injury or involves a deadly or dangerous weapon, the maximum 

punishment is not more than twenty years in prison. Almost 
_______________ 

Assault 

129

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.
_______________ 

Assault 

130

NOTES 
_______________ 

Bribery 

131

Subpart B 

Bribery

I. INTRODUCTION - TITLE 18 U.S.C. § 201..............................131

II. PUBLIC OFFICIALS ............................................................131

III. WITNESSES......................................................................132

IV. DIRECTLY OR INDIRECTLY ..................................................133

V. ANYTHING OF VALUE .........................................................133

VI. TO INFLUENCE AN OFFICIAL ACT .........................................133

VII. GRATUITIES.....................................................................134

***** 

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 officials and 

witnesses from corrupting influences while they are performing 

their official duties. It covers any situation in which the 

judgment of a government official 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 

acting for or on behalf of the United States, or any department 

or branch of the United States government, or a juror. 

 

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

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________ 

Bribery 

132

It is an offense 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 is also an offense 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, any committee of either 

House or both House of Congress, or any agency, commission, 

or officer authorized by the laws of the United States to hear 

evidence or take testimony. 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 is also 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. Furthermore, it would also be crime if 

Bob initiated the offense by requesting money in exchange for 

fabricated testimony or offering to fail to appear and testify. 
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133

IV. Directly or Indirectly 

In the previous examples something of value, the 

currency, was given directly to either the ―public official‖ or 

witness. It is also a crime under § 201 if something 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, the 

government must prove 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 

To prove a § 201 violation, the government must establish a 

connection 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. 
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The individual offered a ―thing of value‖ to corruptly influence 

the IRS agent to violate his official duty to perform accurate 

audits. Likewise, if the IRS agent suggests that if the tax payer 

gives him a thousand dollars he will alter the results of the 

audit to reflect no taxes are owed, the offense of bribery has 

occurred. The IRS agent has committed the offense of bribery. 

If the tax payer accepts the offer, the tax payer has committed 

the offense of bribery, as well. 

VII. Gratuities 

Gratuities are also covered by 18 U.S.C. § 201. A gratuity 

involves giving, offering, promising, demanding, seeking, 

receiving, or accepting 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. Indirect benefits provided to 

a public official‘s family members are prohibited as well. 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. Should there be a question as to 

what you, as a federal law enforcement officer, may or may not 

legally receive every agency has a designated ethics official that 

will provide guidance to you. It is better to be safe instead of 

sorry. Ask your ethics official. Be safe and not sorry! 

 
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Subpart C 

Federal Firearms Violations

I. INTRODUCTION................................................................. 136

II. PROHIBITED PERSONS .......................................................136

A. Definition of Firearm ......................................................... 136

B. Prohibited Persons ............................................................ 137

1. Convicted felon ............................................................ 137

2. Fugitive from justice .................................................... 137

3. Drug user/addict ......................................................... 138

4. Adjudicated mentally defective ..................................... 138

6. Dishonorably discharged ............................................. 138

7. Renounced U.S. citizenship ......................................... 138

8. Domestic relations restraining order ............................ 138

9. Domestic violence misdemeanor conviction .................. 139

C. Pardon or Expungement ................................................... 139

III. ENHANCED MANDATORY PENALTIES.....................................139

A. Introduction ...................................................................... 139

B. Definitions ........................................................................ 140

1. Crime of Violence ......................................................... 140

2. Drug Trafficking Crime ................................................ 140

C. Enhanced Penalties........................................................... 140

1. Firearm Possessed ....................................................... 140

2. Firearm Brandished ..................................................... 141

3. Firearm Discharged ..................................................... 141

IV. POSSESSION IN FEDERAL FACILITIES....................................141

V. WEAPONS REQUIRING REGISTRATION...................................141

A. Introduction ...................................................................... 141

B. Procedure.......................................................................... 142

1. Is Registration Required? ............................................. 142

2. Is Weapon Registered? ................................................ 142

C. Weapons Requiring Registration ....................................... 142

1. Short-Barrel Shotgun .................................................. 142

2. Short-Barrel Rifle ......................................................... 142

3. Machine Guns ............................................................. 143

4. Silencer/Muffler ........................................................... 143

5. Destructive Devices ...................................................... 143

VI. TRACING A FIREARM .........................................................144

A. Introduction ...................................................................... 144

B. What Information is required? .......................................... 144

C. Trace Information ............................................................. 144
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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, safety is of

paramount concern. You should always take steps to ensure 

your safety and the safety of others before investigating to see if 

a weapon is legally possessed. 

II. Title 18 U.S.C. § 922(g) - Prohibited Persons 

A. Definition of ―Firearm‖ 

Firearms are generally described as weapons that will 

expel a projectile by explosion, including the frames or receivers

of such weapons. 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. 
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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 

a state, federal, or military 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. 

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, restraints on trade 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 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). 
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3. Unlawful user of or addicted to 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. Anyone, who being an alien is illegally or 

unlawfully in the United States (except for 

lawfully admitted aliens under nonimmigrant 

visa for lawful hunting or sporting purposes or 

is in possession of hunting license or permit 

lawfully issued in the United States) 

6. An individual who has been discharged from 

the Armed Forces under dishonorable 

conditions 

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. 

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. 
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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, state, or tribal 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, the defendant either waived that 

right or had been convicted by jury. 18 U.S.C. § 921 (a)(33)(B)(i). 

C. Pardon or Expungement

A person who receives a complete pardon, restoration of 

civil rights, 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). 

III. Title 18 U.S.C. § 924(c)(1) - Use or Carrying of Firearm 

during a Federal Crime of Violence or Federal Drug 

Trafficking Crime 

A. Introduction

Title 18 U.S.C. § 924(c)(1) provides enhanced mandatory 

penalties for any person who possesses, brandishes or 
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discharges a firearm during the commission of a federal crime 

of violence or federal 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. “Federal Crime of Violence”

The term ―federal crime of violence‖ means 

a federal 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. “Federal Drug Trafficking Crime”

The term ―federal 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 

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. 
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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. A knife with a blade length of 2 1⁄2 inches 

or longer is a dangerous weapon. 

State, local and federal law enforcement officers are 

exempt from this law while performing their official duties. 

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. Some weapons 

must be registered with ATF in order to possess legally. Title 26 
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142

U.S.C. § 5861 prohibits possession of such unregistered 

weapons. These weapons include short-barrel shotguns, shortbarrel 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 (18 U.S.C. § 5845) 

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 

than 18 inches in length and/or the overall length of the 

weapon is less than 26 inches. To check the weapon for 

compliance of overall length requirements, measure the weapon 

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 of overall 

length requirements, measure the weapon from the tip of the 
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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 

explosion 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 

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. 
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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, Taurus, or Ruger.‖

Model: For example, a ―Detective Special or Model 

26.‖

Caliber/Gauge: For example, ―.38 Caliber.‖

Serial Number: For example, ―33419.‖

C. Information Gained from Successful Trace

Tracing the weapon should reveal the following information: the 

manufacturer, the exporter/importer if the weapon is foreignmade, the wholesale distributor, the retail gun dealer and the 

first lawful retail purchaser from the dealer. A weapons trace 

will not reveal transfers of weapons between private individuals. 

There is no national database for recording weapon transfers 

between individuals. 
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Drug Offenses

145

Subpart D 

Federal Drug Offenses

I. INTRODUCTION................................................................. 145

II. CONTROLLED SUBSTANCES.................................................145

A. Defined ............................................................................. 145

B. Possession ........................................................................ 146

C. Distribution ...................................................................... 147

D. Penalties and Charging ..................................................... 148

***** 

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 encounter 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 little or 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 drugs by their scientific names. They also list 
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146

finished drugs like cocaine, and the raw material, such as coca 

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 a controlled 

substance from his physician for use in treating an ailment 

would be in lawful possession of the controlled substance. If an 

officer takes possession of controlled substance during a search 

incident to arrest, the possession of the controlled substance 

would be lawful. If however, instead of turning the controlled 

substance in as evidence, the officer keeps it and takes it home 

for personal use, the officer would unlawfully possess the 

controlled substance. Unlawful, knowing possession of a 

controlled substance are elements of this offense. 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. 

 

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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Drug Offenses

147

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 

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 

to unlawfully, knowingly or intentionally: ―(1) manufacture, 

 

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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Drug Offenses 

148

distribute, or dispense, or possess with intent to manufacture, 

distribute, or dispense, a controlled substance...‖ Possession 

with intent to 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 

unlawful, 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. Furthermore, possession of drug 

making equipment, using a communication facility (phone/cell 

phone) in facilitating a controlled substance offense, 

endangering human life while manufacturing a controlled 

substance, distributing controlled substances to persons under 

21 years of age or to anyone that is pregnant, or employing 

persons under the age 21 in drug operations are other offenses 

that may be charged. 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 ...........................................149

II. HOW THE ENTRAPMENT DEFENSE WORKS.............................150

III. ANALYSIS OF THE ENTRAPMENT DEFENSE.............................150

A. Government Inducement ................................................... 150

1. Permitted Inducements ................................................ 151

2. Prohibited Inducements ............................................... 151

B. Predisposition ................................................................... 152

C. Examples of Predisposition ............................................... 153

1. An Existing Course of Similar Conduct ........................ 153

2. Previously Formed Intent ............................................. 153

3. A Ready Response to a Criminal Offer .......................... 153

D. Examples of NO Predisposition ......................................... 153

1. Extreme Appeals to Emotion ........................................ 153

2. Threats ........................................................................ 154

3. Excessive Amounts of Money ....................................... 154

V. CONCLUSION....................................................................154

***** 

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 government 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 evidence must 

establish sufficient facts 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 – decoys (metal or Styrofoam) used to 

entice 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: 

threats 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 

continuous pressure such as repeated phone calls, 

visits or requests; repeated insistence, badgering 

violent demonstrations or threats. 

In some cases, government conduct can be so outrageous that 

due process principles will absolutely bar the government from 

obtaining a conviction. To establish outrageous government 

conduct, there must be over-involvement by the government 

combined with a passive role by the defendant. In other words, 
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152

the government conduct must be so outrageous that it shocks 

the universal sense of justice and fundamentals principles of 

fair play. For example, when the government supplies a 

defendant with counterfeit currency and then indicts him for 

receiving counterfeit currency with the intent to pass it as 

genuine, the government‘s actions violate due process. 

B. Predisposition

Predisposition does not mean that the defendant on his 

own, under some conceivable set of circumstances, might 

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. 
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153

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

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. 
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Entrapment 

154

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. 

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. 
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False Statements

155

Subpart F 

False Statements

I. ELEMENTS.......................................................................155

A. Regarding Certain Federal Matters .................................... 155

1. Judicial Proceedings .................................................... 156

2. Legislative Branch Matters ........................................... 156

B. Knowingly and Willfully - Intent ........................................ 157

C. False Material Statement or Concealing a Material Fact .... 157

***** 

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, or 

made or used a document containing a false 

material statement. 

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. False material statements include 

 

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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False Statements 

156

statements and documents, made or used, that contain 

material false statements or those which cover up or conceal 

material facts. The statute applies to statements made 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 for payment made 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 material 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 
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False Statements

157

criminal acts actually occurred. False material statements 

made to an agency regarding the regulatory functions of a 

federal department or agency fall under § 1001. Courts have 

upheld convictions under this section where individuals have 

made false material statements to state agencies which are 

recipients of federal funds.

B. Knowingly and Willfully - Intent

To constitute a § 1001 violation, a false material 

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

For a person to be convicted of making a false statement 

under § 1001, the false statement must be material. 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 material statement, under § 1001, is not required 

to be made under oath or affirmation. The false material 

statement can be oral (a statement made during an interview) or 

can be written (part of a document submitted to an agency). 

False material 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 are 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 
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False Statements 

158

Supreme Court has now ruled that § 1001 covers any false 

material statement, of whatever kind, including the use of the 

word ―no‖ in response to a question. The ―exculpatory no‖ 

statement must be material to the investigation. Title 18 U.S.C. 

§ 1001 does not require a suspect to talk to law enforcement. A 

suspect has a constitutional right to remain silent. However, if 

the suspect chooses to speak, the suspect has no constitutional 

right to lie to a federal law enforcement officer. 

 
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Theft

159

Subpart G 

Theft, Embezzlement, and Conversion 

I. INTRODUCTION................................................................. 159

II. TERMS OF THE STATUTE....................................................159

III. THEFT ............................................................................160

A. Elements ........................................................................... 160

B. Example ............................................................................ 160

IV. EMBEZZLEMENT ...............................................................161

A. Elements ........................................................................... 162

B. Example ............................................................................ 162

V. THEFT BY CONVERSION .....................................................163

A. Elements ........................................................................... 163

B. Example ............................................................................ 163

VI. THEFT BY RECEIPT OF STOLEN PROPERTY ............................164

A. Elements ........................................................................... 164

B. Example ............................................................................ 164

***** 

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, theft by 

conversion, and theft by 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 

States or any department or agency thereof. If the value of 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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Theft 

160

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. To allege a felony, the 

value of the property must be in excess of $1,000. The value of 

the property taken must be alleged in the charging document 

and proved beyond a reasonable doubt at trial. 

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. 
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Theft 

161

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 

government property or property made or being made under 

contract for the United States. 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 establish 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 with the intent of depriving the United States of the 

use or benefit of the property. 
_______________ 

Theft 

162

A. Elements

In order to prove the crime of embezzlement, the 

government must again prove three elements. With the 

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 postal 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 
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Theft 

163

alleged to have been a felony, the government must also prove 

that the value of the property embezzled was over $1,000. 

V. Theft by 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. 

Theft by 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, theft by 

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 theft by 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 
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Theft 

164

guilty of conversion under § 641. The employee wrongfully 

deprived the United States government of its property during 

the unauthorized use of the government vehicle. 

VI. Theft by 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 theft by 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.

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 
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Theft 

165

responsible for theft by 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; 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 theft by 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, embezzled or converted. 

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 

166

NOTES 
_______________ 

Federal Fraud Statutes 

167

Subpart H 

Federal Fraud Statutes

I. INTRODUCTION................................................................. 167

II. MAIL FRAUD - 18 U.S.C. § 1341........................................169

A. The Elements .................................................................... 169

B. Definition of Fraud ............................................................ 169

C. Application of the Mail Fraud Statute ................................ 169

1. In General .................................................................... 169

2. ―In Furtherance of the Scheme‖ ................................... 170

D. A Sampler of Common Schemes ........................................ 171

1. Bribes and Kickbacks – Public Corruption ................... 171

2. Bribes and Kickbacks – Private Corruption .................. 171

3. Fraud Against Consumers ........................................... 172

4. Fraud Against Business ............................................... 172

5. Fraud Against Government .......................................... 172

6. Private Fraud ............................................................... 172

III. WIRE FRAUD - 18 U.S.C. § 1343........................................173

A. The Elements .................................................................... 173

B. Application of the Wire Fraud Statute ............................... 173

IV. THE NATIONAL STOLEN PROPERTY ACT - 18 U.S.C. § 2314....175

A. Paragraph One .................................................................. 175

1. The Elements ............................................................... 175

2. Proving the Elements ................................................... 175

B. Paragraph Two .................................................................. 178

1. The Elements ............................................................... 178

2. Proving the Elements ................................................... 178

C. Paragraph Three ............................................................... 179

1. The Elements ............................................................... 179

2. Proving the Elements ................................................... 179

V. VENUE ............................................................................181

***** 

I. Introduction 

The concept of ―federalism‖ embodied in our U.S. 

Constitution - independent states relinquishing certain of their
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Federal Fraud Statutes 

168

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 state 

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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Federal Fraud Statutes 

169

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. 

His mailing of the order form would be chargeable as one count 

 

1

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

Division Reference Book, in the segment entitled ―Selected Federal Statutes.‖
_______________ 

Federal Fraud Statutes 

170

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 cannot be charged as mail fraud counts. However, the 

courts have distinguished between mailings after the 

completion of the fraud, which are not chargeable under 
_______________ 

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171

§ 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 

In mail fraud cases involving misuse of corporate 

positions by executives seeking private gain, the scheme to 
_______________ 

Federal Fraud Statutes 

172

defraud must involve bribery or kickbacks that deprive the 

corporation or its shareholders of honest services. Any mailing 

to execute the bribery or 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 

rendered goods and services, 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. 

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 
_______________ 

Federal Fraud Statutes 

173

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. Thus, just as in 

mail fraud cases, wire fraud involving misuse of corporate 

positions by executives seeking private gain, the scheme to 

defraud must involve bribery or kickbacks that deprive the 

corporation or its shareholders of honest services. 

The major differences between wire fraud and mail fraud 

statutes are the nature of the communication method. The wire 

 

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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fraud statute requires that the signal or wire transmission 

forming the basis of the charge must cross 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 

other than ―land lines,‖ based on its application to radio 

transmissions. 
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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

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 

 

3 The pertinent parts of this statute can be found in their entirety in the 

companion book, Legal Division Reference Book, in the segment entitled 

―Selected Federal Statutes.‖ 
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176

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. 

(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 
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Federal Fraud Statutes 

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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 

jury may infer that a person in possession of recently stolen 

property knew the property was stolen, unless such possession 

is satisfactorily explained. 
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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 

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. 
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Federal Fraud Statutes 

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(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 

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 
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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. 

(c) Fraudulent Intent 

The government must establish that the defendant 

transported the forged or counterfeit check or security with 
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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 only 

needs to establish 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 

beginning or ending points, rather than in the districts through 

which the mail, transmission, victims or property merely 

passed.
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182

NOTES
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Electronic Law and Evidence 

183

Chapter Seven 

Electronic Law and Evidence 

I. INTRODUCTION................................................................. 184

II. HISTORY OF TITLE III .......................................................185

III. WHEN A TITLE III COURT ORDER IS REQUIRED......................186

IV. HOW TO OBTAIN A TITLE III COURT ORDER ..........................188

A. Who Can Apply? ............................................................... 189

B. Enumerated Crimes Only .................................................. 189

1. Wire or Oral Communications ...................................... 189

2. Electronic Communications ......................................... 189

C. Authorization to Apply ...................................................... 189

1. Wire or Oral Communications ...................................... 190

2. Electronic Communications ......................................... 190

D. Contents of the Application ............................................... 190

1. Identity ........................................................................ 190

2. Statement of Facts and Circumstances ........................ 191

3. Necessity Statement ..................................................... 191

4. Time Period .................................................................. 192

5. Statement Regarding Previous Applications ................. 193

6. Minimization Statement ............................................... 193

7. Request for Covert Entry .............................................. 194

E. Who may Issue? ................................................................ 194

V. INTERCEPTIONS EXEMPTED FROM TITLE III ..........................195

A. No Reasonable Expectation of Privacy ............................... 195

B. Consensual Monitoring ..................................................... 196

1. Written Approval Required ........................................... 197

2. Prior AUSA Advice ........................................................ 197

C. Special Limitations on Consensual Monitoring .................. 197

1. Device Located on the Person ....................................... 198

2. Device in a Fixed Location ........................................... 198

D. Electronic Communications Exempted from Title III .......... 199

VI. ELECTRONIC TRACKING DEVICES ........................................199

A. Installation ....................................................................... 200

1. Vehicles ....................................................................... 200

2. Government Property ................................................... 201

B. Monitoring of an Electronic Tracking Device ..................... 201

1. In Areas with No REP ................................................... 202

2. In Areas with REP ........................................................ 202

C. Warrants to Install and Monitor – Rule 41 ....................... 203
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184

VII. PEN REGISTERS AND TRAP AND TRACE DEVICES ....................205

A. Definitions ........................................................................ 205

1. Pen Registers ............................................................... 205

2. Trap and Trace Devices ................................................ 206

B. Applicable Federal Statutes ............................................... 206

C. Obtaining a Court Order ................................................... 206

VIII. VIDEO-ONLY SURVEILLANCE WHERE REP EXISTS...................207

IX. STORED ELECTRONIC COMMUNICATIONS ..............................209

A. Classifying the Information Sought ................................... 209

1. Basic Subscriber Information ...................................... 209

2. Transactional Records ................................................. 210

3. Contents ...................................................................... 210

B. Methods for Obtaining ...................................................... 211

1. Basic Subscriber Information ...................................... 211

2. Transactional Records ................................................. 211

3. Contents ...................................................................... 212

C. Preservation Orders .......................................................... 214

D. Multi-Jurisdiction Warrants .............................................. 215

***** 

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 an internet service provider (ISP). 

This chapter will not cover state law regarding electronic 

surveillance. While state and local law enforcement must, at a 

minimum, provide the same individual protections as 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 the use of wiretaps and searches in 

connection with national security investigations. 
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Electronic Law and Evidence 

185

II. Electronic Surveillance: A Little History

Before 1934, no federal statute regulated wiretapping. In 

1928, the Supreme Court held in Olmstead v. U.S.1 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. The Court‘s 

decision was based upon a finding that the agents did not 

intrude onto the suspect‘s property when tapping the telephone 

line, and thus there was no Fourth Amendment ―search.‖ 

The Court noted, however, that Congress could regulate 

wiretapping if it so desired. Six years after Olmstead, Congress 

passed the Federal Communications Act of 1934 (FCA) which 

prohibited wiretapping by any person, including federal law 

enforcement officers. On the other hand, the FCA permitted 

federal law enforcement officers to use eavesdropping 

techniques in law enforcement operations. 

In 1967, nearly 40 years after Olmstead, the Supreme 

Court decided the landmark case of U.S. v. Katz. The Fourth 

Amendment still protects property rights, but Katz changed the 

focus of Fourth Amendment analysis from one based on 

property rights to one based 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 that permitted the recording of his side of any phone 

conversation. Because they had not intruded onto the 

defendant‘s property in installing and utilizing this device, the 

officers had complied with Olmstead. Additionally, they did not 

violate the FCA given that it permitted the use of eavesdropping 

devices. Nevertheless, the Supreme Court held that Katz had 

demonstrated a reasonable expectation of privacy in his use of a 

phone booth to make his calls, and, further, that the officers 

had intruded upon that reasonable expectation of privacy. 

 

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

companion publication, Legal Division Reference Book.
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Electronic Law and Evidence 

186

Thus, the warrantless recording of his side of conversations 

with others constituted a violation of the Fourth Amendment. 

Congress‘ response to the Supreme Court‘s decision in 

Katz came in 1968 in the form of the Omnibus Safe Streets and 

Crime Control Act found at 18 U.S.C. § 2510, et seq. Title III of 

that Act regulated the manner in which law enforcement officers 

may lawfully conduct real-time interceptions of wire and oral 

communications.2 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. 

In 1968, when Congress enacted Title III, many of the 

technologies did not exist that later became commonplace. 

Congress eventually extended privacy protections to modern, 

more advanced technologies when it passed the Electronic 

Communications Privacy Act of 1986 (ECPA). In ECPA, 

Congress added ―electronic communications‖ as a third category 

of communications the interception of which would 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 a Title III Court Order is Required 

Title 18, United States Code, Section 2510 et seq., often 

referenced as ―Title III‖ or ―T III,‖ prohibits the warrantless nonconsensual interception of wire or electronic communications. It 

also prohibits the warrantless non-consensual use of devices to 

 

2 When Congress passed the ―Omnibus Crime Control and Safe Streets Act,‖ 

these provisions were in Title III of the Act. Subsequently, these provisions 

were moved to another section; however, this body of law is still referenced 

as ―Title III.‖ 
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Electronic Law and Evidence 

187

intercept oral communications in which one or more of the 

participants in such communications has a reasonable 

expectation of privacy. Such intercepts may be lawfully done 

only with a Title III court order. 

To obtain an order allowing real time intercepts of oral, 

wire, or electronic communications, it is necessary to satisfy the 

procedural and substantive requirements set forth in Title III. It 

is important therefore that you correctly understand the 

definitions of several terms used in the statute.

• oral communications: those spoken by a person who 

exhibits an expectation of privacy when speaking. 

• wire communications: the transfer of the human 

voice via a wire, cable, or ―other like connection‖ even 

if there is no reasonable expectation of privacy. An 

example of a wire communication would be the 

digitized human voice transmitted over a phone line, 

network, the Internet, or other similar medium. 

• electronic communication: the transfer of data via a 

wire, cable, or ―other like connection‖ even if there is 

no reasonable expectation of privacy. E-mail and 

facsimile transmissions are examples of data that are 

transferred by way of an 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 Courts have interpreted the term ―interception‖ to 

mean a real time interception. Thus, Title III would be 

applicable to wire and electronic communications only if the 

interception of such communications occurs during the actual 

transmission thereof by sound waves, wire, or radio. As to oral 
_______________ 

Electronic Law and Evidence 

188

communications, there is no interception unless done with a 

―device‖ while the communication is being made. A device is 

anything other than the human ear. The general rule is that 

Title III does not apply to any oral communications overheard 

with the unaided human ear while the listener is in a place 

where he or she has the right to be.3

Another exception to the application of Title III to 

intercepted communications is where at least one party to the 

communication has consented to the interception. This 

exception applies regardless of whether the intercepted 

communication is oral, by wire, or electronic. 

[Chart removed for compliance with Section 508 of the 

Rehabilitation Act of 1973, as amended by 29 U.S.C. § 794 (d).]

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. 

 

3 The statute excludes, from the definition of ―device,‖ hearing aids set to 

correct subnormal hearing to normal. 
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Electronic Law and Evidence 

189

A. Who May 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 Requirement

Depending on the type of intercept being requested, Title 

III may require as a predicate that you demonstrate probable 

cause that one of the crimes listed in 18 U.S.C. § 2516 has been 

violated.

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 Title 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 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 should first be 

reviewed and approved by the United States Attorney in the 

district where the intercept will occur. Final approval of your 

application must come from an appropriate Department of 

Justice official designated by the U.S. Attorney General. 

Usually, that will be the Assistant Attorney General for the 

Criminal Division. 
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Electronic Law and Evidence 

190

1. Wire or Oral Communications 

Under 18 U.S.C. § 2516(1), the designated Department of 

Justice official 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 any federal felony. 

Under Department of Justice policy, however, the approval of 

the Assistant Attorney General for its Criminal Division is 

required before a criminal investigator may apply to a judge to 

intercept other electronic communications over any other 

device, such as computers and facsimile machines. For a Title 

III of a digital pager, however, only the approval of an AUSA is 

required. 

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 

may 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). 
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Electronic Law and Evidence 

191

2. Statement of Facts and Circumstances 

Title 18 U.S.C. § 2518(1)(b) requires a full and complete 

statement by the applicant of the facts and circumstances relied 

upon to justify the applicant‘s belief that a Title III court order 

should be issued. The applicant‘s statement must demonstrate 

probable cause that the sought-for evidence will be obtained 

through the use of the proposed surveillance. U. S. v. Nixon, 918 

F.2d 895, 900 (11th Cir. 1990). 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 

that a Title III application identify (1) the names of 

all individuals as to whom the government‘s 

evidence shows probable cause that they are 

engaged in the criminal activity under investigation 

and (2) 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 
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Electronic Law and Evidence 

192

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 

conducted where traditional investigative techniques would 

suffice to expose the crime under investigation. It is not 

necessary, however, that the Government attempt or exhaust all 

conceivable investigative techniques before resorting to 

electronic surveillance. The statute only requires that the 

authorizing judicial officer be made aware of the nature and 

progress of the investigation and of the difficulties inherent in 

the use of normal law enforcement methods in that 

investigation. U. S. v. Concepcion, 579 F.3d 214 (2nd Cir. 2009). 

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, whichever occurs first. 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 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). 
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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. Such information is recorded in 

electronic surveillance indexes maintained by Department of 

Justice and its law enforcement agencies and may be accessed 

by an appropriate representative of your agency for use in a 

Title III application. 

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 may 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.)4

E. Who may Issue a Title III Court Order?

A Title III order may only be issued by a United States 

District Court Judge or a United States Circuit Court of Appeals 

Judge. 18 U.S.C. § 2510(9). United States Magistrate Judges 

are not authorized to issue a Title III order. 

[Chart removed for compliance with Section 508 of the 

Rehabilitation Act of 1973, as amended by 29 U.S.C. § 794 (d).]

 

4

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, 441 U.S. 238 (1979). Nevertheless, 

DOJ policy requires that a Title III application include a request for covert entry.
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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) at least one of the parties to 

the conversation has given consent to intercept the 

communication (sometimes referenced 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 his or her unaided ear. As noted by the Supreme 

Court in Katz: ―[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 have conversation in a public restaurant, and 

speak loudly enough for others in the restaurant to overhear 

their conversation, they would have no reasonable expectation 

of privacy as to their conversation.
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Finally, even though a speaker may subjectively intend 

for his conversation to remain private, that speaker has no 

objectively 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 has no ―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., 387 U.S. 231 

(1966).

As stated earlier, the statute does not include the 

requirement of a demonstrated reasonable expectation of 

privacy in order for wire and electronic communications to be 

subject to Title III. It may be inferred, therefore, that an 

expectation of privacy is assumed when communications in 

these forms occur or that, in the absence of a Title court order, 

Congress intended to prohibit the non-consensual interception 

of wire communications regardless of the communicating 

parties‘ expectation of privacy. See 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 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. The 
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most recent version of these guidelines were promulgated by the 

Attorney General on May 30, 2002, and are set forth 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. 

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 policy requires that, prior 

to approval of any consensual face-to-face monitoring by the 

head of a department or agency or his or her designee, a 

designated representative of that department or agency must 

obtain oral or written advice from the Assistant U.S. Attorney or 

Department of Justice attorney responsible for that particular 

investigation. Such contact, consent, advice, or approval is not 

required prior to the consensual monitoring of telephone or 

radio communications. 

C. Special Limitations on Consensual Monitoring

Questions often arise during consensual monitoring 

concerning where the monitoring device may be located and 

when that device may be property monitored. Some general 

discussion of these issues is 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 
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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 Attorneys Manual, Chapter 9-

7.302. 

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 that he has with the suspect. 

2. Device in a Fixed Location 

It is not legally required that a monitoring device be 

placed on the consenting person. In many instances, it may be 

more tactically advisable to place the device in a specified 

location, for example, a hotel room where a confidential 

informant and the suspect are to meet. 

When the device is placed in a fixed location, you need to 

consider two important issues. First, do you 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. On the other hand, if your operational plan is to 

install the device within the REP of a non-consenting person, 

you will need a court order to do so. 

Second, will your consenting party be absent at any time 

when you will be monitoring the device? If a consenting party is 

present when you intercept conversations with that device, no 

further order is necessary. If you intercept a non-consenting 

person‘s statements made in the absence of a consenting party, 

however, that would require a Title III order. 
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D. Electronic Communications Exempt 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. 

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, 460 U.S. 276 (1983). 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 
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of an 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 

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 physical entry onto the curtilage of a 

residence, or into a garage or other place as to which there is 

generally no public access, the Fourth Amendment requires a 

search warrant or an exception to the warrant requirement. 

Neither a warrant nor an exception is required, however, 

to install an electronic tracking device onto the outside of a 

vehicle without intruding into vehicle‘s interior or the wiring. 

Further, no warrant or exception to the warrant requirement is 

necessary to install a tracking device on a vehicle that is parked 

in a public place. This is because no intrusion into REP has 
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taken place.5 One federal appellate court has held that the 

warrantless installation of a tracking device on a vehicle parked 

in a suspect‘s driveway was permissible because the portion of 

the driveway where the vehicle was parked was publicly 

accessible. U. S. v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 

2010).

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, 468 U.S. 705 

(1984). 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. 

B. Monitoring of an Electronic Tracking Device

 

 Whether there are reasonable expectation of privacy 

implications in installing and in monitoring the device are two 

separate issues, and they must therefore 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. 

 

5 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. Because of 

this division among the courts, agents are cautioned to confer with an AUSA 

before any warrantless installation of a tracking device. 
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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. 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. One federal appellate court has ruled, however, that, 

notwithstanding the Supreme Court‘s decision in Knotts, 

continuous monitoring of the movements of a suspect in public 

places for 28 days required a search warrant. U.S. v. Maynard, 

615 F.3d 544 (D.C. Cir. 2010). 

2. 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, 

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 
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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 416 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 as follows 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. 

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. 

 

6

 Federal Rules of Criminal Procedure 41(e)(2)(B) and 41(f)(2) 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 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. 

D. Cell Phone Tracking

In recent years, advances in technology have made it 

possible to ―track‖ the approximate present whereabouts of 

anyone in possession of a power-on cell phone by obtaining real 

time cell site data from a cell phone service provider. At a 

minimum, such data will identify the single cell tower that with 

which the cell phone would communicate if an actual call were 

placed at a given time. The cell phone companies also have the 

capability using data from multiple cell sites to triangulate a 

nearly exact location of a cell phone. 

If acquisition of real time cell site information were the 

legal equivalent to using a GPS tracking device, it would follow 

that the Government is not constitutionally required to obtain a 

warrant provided the phone remains in a public place where 

visual surveillance would be available. There is an additional 

entity involved, however, when the government seeks to obtain 

cell site data: the cell phone service provider. Their primary 

interests are the privacy concerns of their subscribers and 

compliance with various privacy laws relating to electronic 

communications; thus, they will not provide cell phone 
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information about its subscribers unless legally required to do 

so. Moreover, the nature of cell phone usage is that it occurs in 

both private and public areas. For these reasons, tracking a 

person by use of cell site data will require some sort of court 

order.

The courts are generally divided into two views about 

what authority is required in order for the government to obtain 

real time and prospective cell site information. The majority 

view is that, while an order granted under 18 USC §2703(d) is 

sufficient to obtain stored cell site information from a cell phone 

service provider, probable cause and a Rule 41 warrant are 

required in order to compel the cell phone service provider to 

disclose real time and prospective cell site data. A minority of 

courts has allowed the government to use its pen register/trap 

and trace authority to obtain single cell site information in real 

time, that is, the location of the cell phone tower with which a 

cell phone is in communication at a given moment. Federal 

courts have been consistent, however, in requiring the 

government to have a search warrant in order to obtain multiple 

cell site triangulation information from cell phone service 

providers. 

VII. Pen Registers and Trap and Trace Devices 

Pen registers and trap and trace devices are not regulated 

by Title III. Rather, use of such devices is subject to the 

provisions of Title 18 U.S.C. §§ 3121 – 3127.

A. Definitions and Purposes

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 

an email sent by a target. Pen registers do not reveal the 

contents of the phone conversation or email.7

 

7 The U.S. Code definition of a pen register is a ―device which records or 

decodes dialing, routing, addressing, or signaling information transmitted by 
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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.8

B. Applicable Federal Statutes

The statutes 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, 442 U.S. 735 (1979). 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

There are a number of procedural steps to obtain a court 

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, 

 

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). 

8 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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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 4th Amendment 

exclusionary rule grounds. 

VIII. Video-Only Surveillance in an Area where a 

Reasonable Expectation of Privacy Exists 

Using video-only surveillance to record activity in an area 

where a reasonable expectation of privacy exists is governed by 

the Fourth Amendment, not Title III. Thus, before either 

installing a video camera or using it to record a criminal target‘s 

actions where a reasonable expectation of privacy exists, you 

must obtain either a search warrant or consent. For example, if 

you wish to install a video camera in a public location but do so 

such that you will record activities in your target‘s curtilage or 

other private place, you will need a search warrant. If the 

device is installed and monitors only activities in a location 
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where no reasonable expectation of privacy exists, no search 

warrant is required. 

 

While recognizing that Title III does not govern the use of 

video-only surveillance in unprotected areas, many circuit 

courts 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 from the planned use of 

video-only surveillance, six federal circuit courts also require 

that the following information be included in a search warrant 

for video-only 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, 

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. United States Attorneys 

Manual, Chapter 9-7.200.
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IX. Stored Electronic Communications 

The Electronic Communications Privacy Act of 1986 

(ECPA), found at 18 U.S.C. § 2510, was enacted by Congress to 

extend government restrictions on the interception of telephone 

calls to include transmissions of electronic data by computer. 

Specifically, ECPA was an amendment to Title III of the 

Omnibus Crime Control and Safe Streets Act of 1968, which 

was primarily designed to prevent unauthorized real time 

interception by the government of private oral, wire, and 

electronic communications.

 ECPA also contains the Stored Communications Act 

(SCA), found at 18 U.S.C. §§ 2701-12, that controls government 

access to electronic communications that have been stored by 

publicly-accessible internet service providers (ISP), such as 

Google, Yahoo, and Comcast. Electronic mail (email) stored on a 

network server is the primary example of a stored 

communication. While this portion of the statute is unusually 

complicated, it may be simplified into two basic questions: 

(1) what type of information is being sought from the 

ISP; 

(2) what type of legal document is necessary to require 

the ISP to disclose the type of information being 

sought.

A. Classifying the Information Being Sought

There are three types of information that you may wish to 

obtain from an ISP: (1) Basic subscriber information; (2) 

transactional records; and (3) the contents of stored 

communications. 

1. Basic Subscriber Information 

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 

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....).‖ In short, such information 

relates to how the internet service subscriber uses his account. 

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, for example, the actual text 

contained within an email and attachments to the email. 

―Contents‖ includes ―any information concerning the substance, 

purport, or meaning of that communication.‖ That would also 

include any data in the subject line of an email. 

It is important to remember that this provision applies 

only to ―stored electronic communications.‖ That term is defined 

in the statute as ―any temporary, intermediate storage of a wire 
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or electronic communication incidental to electronic 

transmission thereof,‖9 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 Being 

Sought

Three types of documents may 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 compel an ISP to disclose information. Of course, 

you may always use a more stringent method to access 

information that could have been obtained with a ―lesser‖ form 

of process. 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. Basic Subscriber Information - Subpoena 

Only a subpoena is required in order to obtain ―basic 

subscriber information‖ from an ISP. 18 U.S.C. § 2703(c)(2). 

When such information is obtained using a subpoena, the 

government is not required to provide notice to the subscriber 

or customer. The subpoena may be issued by a federal grand 

jury or a federal trial court, or may be an administrative 

subpoena authorized by a federal statute, such as 6(a)(4) of the 

Inspector General Act. 

2. Transactional Records – Court Order 

To obtain ―transactional records,‖ you must, at a 

minimum, use a court order issued pursuant to 18 U.S.C. § 

 

9 18 U.S.C. § 2510(17). 
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212

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.‖ The government is not required 

to provide prior notice to the customer or subscriber before 

requiring the ISP to disclose the records sought pursuant to a § 

2703(d) order.

3. Contents – Search Warrant, Court Order or 

Subpoena Depending on Time and Retrieval 

Status 

You may require an ISP to provide the actual contents of 

wire or electronic communications held in storage. Content 

includes the subject line as well 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 an ISP 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 ISP 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 
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delaying a 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 an ISP 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

There are three options for compelling an ISP to disclose 

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 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, there 

is no requirement of prior notice to the subscriber or customer. 

You may also use an 18 U.S.C. § 2703(d) court order to 

require an ISP 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, however, 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.‖ That term is defined in 18 U.S.C. § 2705(a)(4) 

as (A) endangering the life of physical safety of an individual, (B) 

flight from prosecution, (C) destruction or tampering with 

evidence, (D) intimidation of witnesses, or (E) anything that 

might seriously jeopardize an investigation or cause undue 

delay of a trial. 

Extensions of the delay period are possible, but must be 

justified each time using the same ―adverse result‖ standard. 

Once the delayed notice period expires, you must notify the 
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214

customer of the court order and explain the procedures 

surrounding the delay in notification. As with a search 

warrant, you may apply for a court order preventing the ISP 

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 is the case 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. 

When a government entity obtains a subpoena for the 

contents of wire or electronic communications, it must 

ordinarily give notice to the customer prior to the disclosure by 

the internet service provider. Notification to the customer may 

be delayed, however, 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 

either ―the investigative agent in charge, assistant investigative 

agent in charge, or an equivalent of an investigating agency‘s 

headquarters or regional office, or the chief prosecuting 

attorney, 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 Letters

There is no requirement under the law that internet 

service providers retain the emails of their customers for any 

specific period of time. Thus, there is the danger that, between 

the time when the investigator‘s need for the emails becomes 

apparent and an order is issued, those emails could be 

destroyed. 
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To guard against the deletion or other destruction of 

email evidence by an internet service provider (ISP) before an 

order or other legal process can be obtained, 18 U.S.C. § 

2703(f)10 authorizes a government agency to issue a 

―preservation letter‖ to that ISP. Generally, Preservation Letters 

should be issued on government agency stationery by an agency 

supervisor. Once served with a Preservation Letter, the statute 

requires that the ISP ―shall take all necessary steps to preserve 

records and other evidence in its possession pending the 

issuance of a court order or other process.‖ The statute further 

requires the ISP to retain the records for a period of ninety days, 

with a ninety-day extension possible upon a renewed request by 

the government. 

D. Multi-Jurisdiction Warrants

Ordinarily, a search warrant may only be issued by a 

judge in the district where the evidence that is subject to 

seizure is located. This could present a problem with a warrant 

for stored electronic communications because even a single ISP 

may store emails on servers in more than one district. For this 

reason, 18 U.S.C. Section 2703(a) authorizes any federal court 

with jurisdiction over the offense under investigation to issue a 

warrant that is effective in all districts where such evidence is 

located.

 

10 This statute section may be found in its entirety in the companion book, 

Legal Division Reference Book, in the segment entitled ―Selected Federal 

Statutes.‖
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[Chart removed for compliance with Section 508 of the 

Rehabilitation Act of 1973, as amended by 29 U.S.C. § 794 (d).]
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Chapter Eight 

Federal Court Procedures 

I. INTRODUCTION TO THE FEDERAL COURT SYSTEM...................219

II. TRIAL COURTS, APPELLATE COURTS, JUDICIAL DISTRICTS ......220

A. Functions of Criminal Courts ............................................ 220

B. Districts ............................................................................ 220

III. THE FEDERAL COURTS ......................................................221

A. The Supreme Court ........................................................... 221

B. The Circuit Courts of Appeals ........................................... 221

C. Classification of Offenses .................................................. 222

D. Federal District Courts ...................................................... 223

E. U.S. Magistrate‘s Courts ................................................... 223

F. Review of Jurisdiction ....................................................... 224

G. Appointment of Justices and Judges ................................. 224

IV. COURT DOCUMENTS OFFICERS NEED TO KNOW .....................224

A. Criminal Complaint ........................................................... 224

B. Information ....................................................................... 225

C. Indictment ........................................................................ 225

D. Arrest Warrant .................................................................. 225

E. Summons ......................................................................... 226

F. ―Tickets‖............................................................................ 227

V. THE INITIAL APPEARANCE. (RULE 5) ....................................227

A. The Initial Appearance ...................................................... 227

B. Bringing a Defendant before a Magistrate Judge ............... 227

1. Warrantless Arrest ....................................................... 227

2. Arrest with a Warrant .................................................. 227

3. Summons .................................................................... 228

C. Using Non-Federal Judges for an Initial Appearance ......... 228

VI. RESPONSIBILITY UPON ARREST - THE INITIAL APPEARANCE .....228

A. The Requirement and Timing ............................................ 229

B. The Purpose and Procedure .............................................. 230

C. The Defendant‘s Rights ..................................................... 230

D. Pretrial Release or Detention? ........................................... 231

1. Pretrial Services Interview and Recommendation ......... 231

2. Judge‘s Options ........................................................... 231

3. Conditional Release ..................................................... 232

E. Detention Hearings and Decision ...................................... 232

F. Release is Preferred ........................................................... 232

G. ―Bail Jumping‖.................................................................. 233
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VII. ARRESTS OUTSIDE THE DISTRICT OF THE CRIME....................233

A. Arrests in a District other than the District of the Crime ... 233

B. Removal and Identity Hearings ......................................... 234

VIII. DIPLOMATS, FOREIGN NATIONALS, MEMBERS OF CONGRESS, AND 

JUVENILES ......................................................................234

A. Diplomats ......................................................................... 234

1. Diplomatic Immunity ................................................... 234

2. Verifying the Status ..................................................... 235

3. Handling Diplomats ..................................................... 235

4. Traffic Incidents Involving Diplomats ........................... 236

B. Foreign Nationals .............................................................. 237

1. Arrests/Detentions ...................................................... 237

2. Consular Access .......................................................... 238

3. Deaths ......................................................................... 239

4. Appointments of Guardians/Trustees .......................... 239

5. Ship/Aircraft Accidents ............................................... 239

C. Members of Congress ........................................................ 239

1. Privilege from Arrest .................................................... 239

2. Exceptions to the Privilege ........................................... 240

D. Juveniles .......................................................................... 240

IX. PRELIMINARY HEARINGS AND ARRAIGNMENTS .......................241

A. Preliminary Hearings ........................................................ 241

1. Procedure .................................................................... 242

2. Results ........................................................................ 242

B. Arraignment ...................................................................... 243

X. THE GRAND JURY.............................................................244

A. Purpose ............................................................................. 244

B. Selection, Empanelment, and Structure ............................ 244

C. Process ............................................................................. 245

D. Sealed Indictments ........................................................... 247

E. Post-Indictment Grand Jury Powers .................................. 247

XI. GRAND JURY SUBPOENAS...................................................248

A. Power and Flexibility ......................................................... 248

B. Types (Rule 17) ................................................................. 248

C. Service .............................................................................. 249

D. Quashing or Modifying ...................................................... 249

E. Legal Requirements ........................................................... 249

F. Limitations ........................................................................ 249

G. When a Subpoena can allow the Destruction of Evidence - 

Using a Search Warrant .................................................... 251

H. The Mechanics of Obtaining .............................................. 251

I. Inspector General (IG) Subpoenas ..................................... 252
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XII. SECRECY OF GRAND JURY PROCEEDINGS (RULE 6(E)) ............252

A. Exceptions to Rule 6(e) ...................................................... 253

1. The Non-Government Witnesses Exception .................. 253

2. District Court or AUSA Disclosure ............................... 253

3. Access to Grand Jury Matters ...................................... 253

4. The 6(e) list .................................................................. 254

XIII. DOCUMENTS REQUIRED TO FORMALLY ACCUSE A DEFENDANT ..256

XIV. DEFENSE ACCESS TO GOVERNMENT EVIDENCE ......................257

A. Discovery under Rule 16 ................................................... 258

B. The Brady Doctrine ........................................................... 260

C. Disclosure under Giglio ..................................................... 260

D. The Jencks Act and Rule 26.2 ........................................... 262

E. Continuing Duty to Disclose ............................................. 263

F. Sanctions for Non-Compliance .......................................... 263

XV. VENUE AND TRANSFER.......................................................264

XVI. THE STATUTE OF LIMITATIONS AND SPEEDY TRIAL ACT ..........266

A. Statute of Limitations........................................................ 266

B. The Speedy Trial Act ......................................................... 268

XVII. PRESENTENCING INVESTIGATIONS AND REPORTS....................269

***** 

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: 

either they conduct the trial in a criminal case, or 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,

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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Federal Court Procedures 

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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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Federal Court Procedures 

222

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, and its decisions in these cases are binding on all circuits. 

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. Other than the Court of Appeals for the 

Federal Circuit, the decisions 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

Offenses are classified by the maximum possible 

confinement upon conviction. A felony is an offense punishable 

by more than one year incarceration or death. (When the death 

penalty is possible, the offense is also known as a ―capital 

offense.‖) A Class A misdemeanor is punishable by one year or 

less, but more than six months incarceration. A Class B 

misdemeanor is punishable by six months or less, but more 

than 30 days incarceration. A Class C misdemeanor is 

punishable by 30 days or less, but more than 5 days 

incarceration. An infraction is punishable by 5 days or less 

incarceration. 

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. 

Although 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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224

F. Review of Jurisdiction to Try Federal, Criminal 

Cases

A felony case will be tried in the district court. A Class A 

misdemeanor can be tried in the magistrate court if the 

defendant consents. If not, it will be tried in the district court. 

Petty offenses (Class B and C misdemeanors and infractions) 

will be tried in the 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 

arrest warrant or summons, or to state the charge when you 

make a warrantless arrest. When a suspect is charged in a 

criminal complaint with a felony or class A misdemeanor, the 

criminal complaint is a temporary charging document. The 

charges will ultimately be charged in an indictment or an 
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information. Felonies will usually be charged in an indictment, 

unless the indictment is waived by the defendant in a noncapital case in which case an information will be used. Class A 

misdemeanors will be charged in an information.

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 
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arrest warrant identifies who is to be arrested and the offense. 

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. If 

the arrest was made pursuant to an NCIC (National Crime 

Information Center) hit, then the arresting officer or the 

prosecuting attorney should contact the district that issued the 

warrant to obtain a faxed copy prior to the initial appearance. 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. 
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F. ―Tickets‖

A citation or violation notice is similar to a traffic ticket 

and is issued by an officer.

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. 
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If the defendant has been indicted by a grand jury, the 

indictment will be filed with the clerk of the court in that 

district. The clerk of the court will issue an arrest warrant 

based on the charge or charges contained in the indictment. 

(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 search or 

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 of 

the arrest and the location of the defendant. If the arrest was 
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without a warrant, and a criminal complaint, indictment, or 

information has not already been prepared, you must prepare a 

criminal complaint.

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. In accordance with 18 U.S.C. § 3501(c), 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 
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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 

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 
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pretrial release, the defendant‘s right not to make a statement, 

and that any statement made can be used against him. 

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, 
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Release the defendant on condition or conditions 

that may include bail, 

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 (neither of which requires a deposit of money 

or property as security), 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 
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strength of the case, criminal history, and the possible danger 

that the defendant may present to the community. 

G. ―Bail Jumping‖

If the defendant fails to appear in court after being 

released, the judge has many options, and the government can, 

and usually does, seek an indictment on charging the defendant 

with a violation of 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: 
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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. 

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 in hand, then 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. 
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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. 

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. 
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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 

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.
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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.

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 

 

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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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 

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 
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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 

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 
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other citations, investigating and preparing reports, serving a 

subpoena or summons, or prosecution for a crime. 

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
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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 

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 

charged in a criminal complaint with a felony or class A 

misdemeanor, that is, 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.
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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 

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 Timing and 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 14 

days after the initial appearance if the defendant is detained in 

custody, or 21 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 
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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 

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. 
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X. The Grand Jury4

A. Purpose of the Grand Jury

A grand jury is an independent body that operates under 

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 

 

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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additional months. When the grand jury sits, there must be a 

minimum of 16 grand 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 

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.
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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. 

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 

trial 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 
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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 

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. 
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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 

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. 
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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 

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 
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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 

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. 
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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 

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. 
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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. 

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);
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The testimony of a witness (including your own 

testimony);

Documents and other items that were subpoenaed 

by the grand jury; and 

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. 
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Another AUSA for purposes of enforcing federal 

criminal laws.

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 

the analysis to those not on the 6(e) list. However, if the 
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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. 

Misdemeanors may be charged by a criminal complaint. 

When a misdemeanor is to be tried in district court, the AUSA 
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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: 

[Chart removed for compliance with Section 508 of the 

Rehabilitation Act of 1973, as amended by 29 U.S.C. § 794 (d).]

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 

the government‘s case and mount a defense. Commonly 

referenced as ―discovery material,‖ this information must be 
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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, 

memoranda of interview (MOIs), and reports of 

investigation (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.

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. 

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.
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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. If the 

AUSA does not believe that he or she alone can determine 

whether certain information must be disclosed to the defense, 

then the AUSA should produce that information for an in 

camera inspection (by the judge only). The judge will then 

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 for Plea and Sentence (Rule 20, F.R.Cr.P.). 

If a defendant is arrested in a district other than 

the one where the crime occurred and the 

prosecution is pending, the prosecution may be 

transferred to the district of arrest if the defendant 

states in writing a wish to plead guilty in the 

district of arrest and to waive trial in the district 

where the prosecution is pending, and the United 

States Attorneys and the judges in both districts 

agree. If the defendant thereafter changes his plea 

to not guilty, then the prosecution is transferred 

back to the district where the crime occurred and 

from which the prosecution was transferred. 

Transfer for Trial (Rule 21, F.R.Cr.P.) (―change of 

venue‖). The defense may file a motion requesting a 

transfer of the prosecution to another district for 

trial or other disposition if the court finds (a) that 

the prejudice against the defendant is so great in 

the district of venue (where the crime occurred) that 

the defendant cannot obtain a fair and impartial 

trial, or (b) that the prosecution, or one or more 

counts, against the defendant should be transferred 

to another district for the convenience of the parties 

and the witnesses and in the interest of justice. 

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 
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defendant between districts and states, but between the United 

States and another nation. The process is a complicated one 

involving the Departments of State and Justice. 

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. 
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9/1/2005 Prosecution barred, unless indictment 

or information has been obtained. 

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. 
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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 

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. 
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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.

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................................................................. 275

II. GOVERNMENTAL ACTION....................................................275

III. A SEARCH .......................................................................276

A. Reasonable Expectation of Privacy (REP) ........................... 276

1. The Test ....................................................................... 277

2. Common REP Areas ..................................................... 278

3. Methods and Devices ................................................... 284

IV. A SEIZURE.......................................................................285

A. Police-citizen Encounters .................................................. 286

1. Voluntary Contacts ...................................................... 286

2. Terry Stops .................................................................. 287

3. Terry Frisks ................................................................. 292

4. Detaining Vehicles ....................................................... 294

5. Arrests ......................................................................... 296

V. USE OF RACE...................................................................297

A. The Constitutional Framework .......................................... 297

B. Guidance .......................................................................... 298

1. Routine or Spontaneous Activities ............................... 298

2. Specific Investigations .................................................. 298

C. Threats to National Security .............................................. 300

1. Compelling Government Interest .................................. 300

2. Exceptional Circumstances .......................................... 301

VI. PROBABLE CAUSE (PC) ......................................................302

A. Defining PC ....................................................................... 302

B. The Test for PC ................................................................. 302

C. Establishing PC ................................................................ 303

1. Confidential Informants ............................................... 303

VII. THE EXCLUSIONARY RULE..................................................306

A. The Rule ........................................................................... 306

B. The Exceptions ................................................................. 306

1. No Standing to Object .................................................. 306

2. Impeachment ............................................................... 307

3. Good Faith ................................................................... 307

4. Foreign Searches ......................................................... 308

5. Inevitable Discovery ..................................................... 310

6. Miscellaneous Exceptions ............................................ 311
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VIII. THE PLAIN VIEW DOCTRINE................................................311

A. Lawful Position of Observation .......................................... 311

B. Incriminating Nature Immediately Apparent ..................... 312

C. Lawful Right of Access ...................................................... 312

IX. ARREST WARRANTS ..........................................................313

A. Upon Complaint ................................................................ 313

B. Upon Indictment or Information ........................................ 313

C. The Form .......................................................................... 314

D. Executing Arrest Warrants ................................................ 314

E. Manner of Execution ......................................................... 315

F. Warrant Return ................................................................. 315

X. ARRESTS.........................................................................315

A. Authority .......................................................................... 316

B. On Outstanding Arrest Warrants ...................................... 317

1. Outstanding Federal Warrant ...................................... 317

2. Outstanding State Warrant .......................................... 317

C. Entering a Home ............................................................... 317

1. The Suspect‘s Home..................................................... 318

2. A Third-Party‘s Home................................................... 319

D. Warrantless Arrests .......................................................... 319

1. Felonies ....................................................................... 319

2. Misdemeanors ............................................................. 319

XI. KNOCK AND ANNOUNCE .....................................................320

A. The Statute ....................................................................... 320

B. The Primary Purposes ....................................................... 321

C. A Breaking ........................................................................ 321

D. Requirements .................................................................... 321

1. Knock .......................................................................... 322

2. Announce Authority and Purpose ................................ 322

3. Admittance Refused or Denied ..................................... 322

E. Exigent Circumstances ..................................................... 324

F. Violation Does Not Lead to Suppression of Evidence ......... 325

G. No-Knock Warrants........................................................... 325

XII. PROTECTIVE SWEEPS ........................................................326

A. What is a Protective Sweep? .............................................. 326

B. Scope of a Protective Sweep .............................................. 326

1. Areas to be Searched ................................................... 326

2. Time Limit ................................................................... 327

C. Two Kinds of Protective Sweeps ......................................... 327

1. ―Automatic‖ Protective Sweeps ..................................... 327

2. ―Extended‖ Protective Sweeps ...................................... 328

D. When Arrest Occurs Outside the Home ............................. 328
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XIII. SEARCHES INCIDENT TO ARREST (SIA) ................................. 329

A. Rationales ......................................................................... 329

B. Requirements .................................................................... 329

C. Scope ................................................................................ 331

1. Arrestee‘s Person ......................................................... 331

2. Lunging Distance ......................................................... 331

3. In a Vehicle .................................................................. 332

XIV. SEARCH WARRANTS ..........................................................334

A. Who May Request ............................................................. 334

B. Who May Issue .................................................................. 334

C. Jurisdictional Requirements ............................................. 335

D. The Neutral and Detached Requirement ............................ 337

XV. AFFIDAVIT FOR A SEARCH WARRANT....................................337

A. Establishing a Nexus ........................................................ 338

B. Stale Information .............................................................. 338

C. Anticipatory Search Warrants ........................................... 339

D. Particularity - the Place to be Searched ............................. 340

1. Residences ................................................................... 340

2. Persons ........................................................................ 341

3. Vehicles ....................................................................... 341

E. Particularity - the Persons or Things to be Seized.............. 341

F. Types of Items That Can Be Seized .................................... 342

G. False or Misleading Statements ......................................... 343

XVI. TELEPHONIC SEARCH WARRANTS ........................................343

A. Purpose of Rule 41(d)(3) .................................................... 343

B. Telephonic Warrants and Exigent Circumstances ............. 343

C. Who can Issue .................................................................. 344

D. Procedural Requirements .................................................. 344

1. The Duplicate Original Warrant ................................... 344

2. Read It or Transmit It .................................................. 345

3. The Original Warrant ................................................... 345

4. Warrants are Signed .................................................... 345

5. Enter Time of Execution .............................................. 345

E. Recording and Certification Requirements ........................ 346

1. Oath or Affirmation ...................................................... 346

2. Verbatim Record .......................................................... 346

3. Certification ................................................................. 346

XVII. EXECUTING SEARCH WARRANTS..........................................346

A. Who may Execute ............................................................. 346

B. When a Search Warrant May Be Executed ........................ 347

C. Use of Force ...................................................................... 349

D. Presenting the Warrant ..................................................... 349

E. Answering a Telephone ..................................................... 349

F. Temporary Seizure of Handguns ....................................... 350
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G. Detaining the Occupants .................................................. 350

H. Frisking and Searching the Occupants ............................. 352

I. Permissible Search Locations ............................................ 352

1. Premises, Outbuildings and Curtilage .......................... 353

2. Vehicles on Curtilage ................................................... 353

3. Containers ................................................................... 353

J. Damage or Destruction of Property ................................... 354

K. Preparing an Inventory ...................................................... 354

L. Providing a Copy of the Warrant and Inventory ................. 355

M. Warrant Return ................................................................. 355

XVIII. THE MOBILE CONVEYANCE EXCEPTION ................................355

A. Rationales ............................................................................ 356

B. Prerequisites ........................................................................ 356

C. No Exigency Required .......................................................... 357

D. The Timing .......................................................................... 357

E. The Scope ............................................................................ 358

XIX. EXIGENT CIRCUMSTANCES .................................................359

A. Hot Pursuit .......................................................................... 360

B. Destruction or Removal of Evidence .................................... 361

C. Emergency Scene ................................................................ 362

XX. CONSENT SEARCHES .........................................................364

A. Requirements ...................................................................... 364

1. Voluntary........................................................................ 364

2. Actual or Apparent Authority .......................................... 366

B. Scope .................................................................................. 367

C. Third-Party Consent ............................................................ 368

1. Husband-Wife ................................................................. 368

2. Parent-Child ................................................................... 368

3. Roommates ..................................................................... 369

XXI. INVENTORY SEARCHES ......................................................370

A. Justifications ....................................................................... 370

B. Requirements ...................................................................... 370

1. Lawful Impoundment ...................................................... 371

2. Standardized Policy ........................................................ 371

C. Scope .................................................................................. 371

D. Location .............................................................................. 372

XXII. ADMINISTRATIVE SEARCHES...............................................372

A. Sobriety Checkpoints ........................................................... 373

B. Driver‘s License and Registration Checkpoints .................... 373

C. Information-Gathering Checkpoints .................................... 373

D. General Crime Control Checkpoints .................................... 374

E. Inspections of Businesses .................................................... 374
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Fourth Amendment 

275

F. Airport Searches .................................................................. 375

1. Security Checkpoints ...................................................... 375

2. Before and After Checkpoints ......................................... 376

3. The Point of No Return ................................................... 376

G. Border Searches ................................................................ 377

1. Categories of Intrusions ............................................... 378

2. Geographic limits ......................................................... 379

***** 

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. For 

instance, the Court has held the Fourth Amendment applicable 

to the activities of civil authorities such as building inspectors, 

Occupational Safety and Health Act inspectors, firefighters 

entering privately-owned premises to battle a fire, and state 

hospital administrators. 
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Fourth Amendment 

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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 ―private 

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, an 

officer 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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Fourth Amendment 

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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. 

In Katz, the Supreme Court held that 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 who surreptitiously moved his 

 

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

companion publication, Legal Division Reference Book.
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Fourth Amendment 

278

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 a person is 

lawfully seized, such as during a lawful arrest, the issue of REP 

turns on whether the evidence sought is internal or external. It 

is well-established that a physical intrusion, penetrating 

beneath the skin, infringes on an expectation of privacy that 

society is prepared to recognize as reasonable. Obtaining 

internal evidence such as 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. Winston v. Lee. It does not constitute 

a ―search‖ to obtain external evidence such as fingerprints, 

handwriting, or voice samples from a lawfully seized suspect. 

External evidence can also be obtained from a subject by 

subpoena or a court order. Fingerprints left behind by the 

suspect, such as on an interview table, are fair game for law 

enforcement— securing them and using them creates 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 
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Fourth Amendment 

279

generally has REP for the interior of a vehicle, at least against 

physical intrusion. An officer may lawfully observe an item 

sitting on the front seat in open view. This does not necessarily 

give the officer 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 or she neither owns nor 

leases typically does not have REP in that vehicle, although the 

passenger will retain an expectation of privacy inside 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. 

(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. An owner‘s REP persists in 

her vacation home even if she only occupies it a few weeks per 

year. The Supreme Court has also held that in some 

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 being at the home. For 

example, overnight guests of a homeowner are entitled to REP 

in the host‘s home. Minnesota v. Olson. 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 
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Fourth Amendment 

280

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 

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 has 

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 shared 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 

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 
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Fourth Amendment 

281

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 an officer exceeds the 

scope of the private intrusion and enters 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 the 

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 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 

as those structures themselves may contain REP. 

 

In most instances the boundaries of a home‘s curtilage 

are 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: 
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Fourth Amendment 

282

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 Workplaces

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 reasonable 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 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. 
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Fourth Amendment 

283

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 Fourth Amendment 

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 

an individual being pursued by law enforcement officers throws 

away an object later determined to be contraband. Note that an 

individual‘s abandonment of certain property may be found 

involuntary when it is caused 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. 

Garbage poses its own legal problems when attempting to 

determine if law enforcement officers can examine it. The key to 
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Fourth Amendment 

284

determining whether there is REP in garbage is the location of 

the garbage at the time the officer encounters 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, the officer 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.

(h) 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 

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. 

REP does not extend to the airspace around luggage or a 

container. Illinois v. Caballes. 
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(b) Sensory enhancements 

The lawfulness of using devices to enhance an officer‘s 

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 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.‖ An officer‘s use of flashlights and 

searchlights for illumination does not constitute a ―search,‖ and 

officers 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 overflights to detect criminal activity is 

common in law enforcement. When conducting overflights, 

officers may operate in navigable airspace (as determined by 

FAA regulations) to the same extent as private persons. In such 

situations, the Fourth Amendment does not require the 

government traveling in the public airways 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. 

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. However, words and actions on an officer‘s part 

may convert a voluntary, consensual contact into a ―seizure.‖ It 

is also important for law enforcement officers to understand 

exactly when an individual is ―seized‖ for purposes of the 

Fourth Amendment. 
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A person is ―seized‖ when, based on the totality of the 

circumstances, including an officer‘s application of physical 

force (however slight) or the person‘s submission to the officer‘s 

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. An encounter is 

consensual if a reasonable person feels entitled to terminate it 

and leave at any time. A voluntary contact is NOT considered a 

―seizure‖ and therefore is not controlled by the Fourth 

Amendment. 

When conducting a consensual encounter, the officer may 

take any or all of the following actions without turning the 

contact into a ―seizure.‖ First, the officer may approach an 

individual and ask questions, even incriminating questions. 

Second, the officer may request, but not demand, to see an 

individual‘s identification. Third, the officer may identify him or 

herself and display credentials. Fourth, the officer may seek 

consent for a search or a frisk. 

In contrast, there are some actions the officer might take 

during an encounter that may change the nature of the contact 

into a ―seizure‖ at some point. The officer‘s actions during a 

voluntary contact may be closely scrutinized by a court to 

determine whether the encounter became a ―seizure.‖ Among 
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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 the officer; (3) language or 

tone of voice that might indicate compliance with the officer‘s

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 the right to end the encounter (though this is 

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 compelled, brief, investigatory stop. To make an 

investigative detention, a law enforcement officer must have a 

reasonable, articulable suspicion that criminal activity is afoot 

and the person detained is somehow involved. 

(a) The Requirements 

To conduct an investigative detention of a person, an 

officer must have ―reasonable suspicion‖ to believe that criminal 

activity is afoot. The officer need not be fully convinced that a 

crime is being committed, or even that he or she is 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 

cause,‖ the officer must still have explainable (articulable) 

reasons to justify a temporary seizure of a person. ―Criminal 

activity is afoot‖ means that the officer 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 
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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 an officer has reasonable 

suspicion that a piece of personal property, such as luggage, 

contains contraband or evidence of a crime, he or she may 

detain it in the same manner that the officer may detain a 

person.

To determine whether reasonable suspicion exists, courts 

look at the ―totality of the circumstances‘ of each case. An 

officer 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, the officer is allowed to draw on his or her experience and 

specialized training to reach conclusions based on all of the 

facts and circumstances available to you that an untrained 

person might not reach. For example, the officer may observe 

conduct that he or she believes is ―casing‖ a store for a robbery, 

though it might not seem so to the untrained eye. In such a 

situation, the officer‘s training and experience allows him or her 

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 

Law enforcement officers may use a variety of different 

investigative techniques to obtain enough information to 

establish reasonable suspicion to detain a person. For example, 

officer‘s personal observations may form the basis for 

reasonable suspicion to conduct an investigative detention. A 

great deal of deference is given to personal observations. 

Additionally, officers 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, officers may use 
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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 accurately 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 [―quantity‖] as well as 

how strongly it helps prove that criminal activity is afoot 

[―quality‖].

(c) Factors Justifying Investigative Detentions 

The officer must be able to explain to a court why he or 

she decided to 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). The officer can utilize a wide 

variety of factors to justify an investigative detention. Even 
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apparently innocent or wholly lawful conduct can, in 

appropriate instances, justify suspicion that criminal activity is 

afoot and thereby justify a Terry stop. For example, the legal 

purchase of a crowbar by a person with an extensive criminal 

record for burglary is a different matter than the same purchase 

made by a carpenter with no criminal record. Some common 

factors officers 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. The investigative methods used 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. The courts look to 

whether the officer diligently and reasonably pursued the 

investigation to quickly confirm or dispel suspicions. The 

amount of force used and the level of restriction placed on 
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movement may also be considered, in addition to the length of 

the detention. A Terry stop must be reasonable in time, place, 

and manner. 

(e) The Use of Force During an Investigative 

Detention

An officer‘s use of force during an investigative detention 

must be objectively reasonable based on 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 those actions are justified. For 

instance, a subject who will not comply with lawful orders may 

be handcuffed, and an officer may point a gun at a suspect 

believed to be dangerous. The officer‘s use of these types of 

force must be objectively reasonable under the circumstances 

known to him or her 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 the articulable, 

objective suspicions; (4) the need for 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? 

An investigative detention may lead to a lawful arrest only 

if probable cause to arrest is developed. Remember, while an 

investigative detention only requires reasonable suspicion that 

criminal activity is afoot, an arrest requires probable cause that 

a crime is being, or has been, committed. 

If an investigative detention is extended beyond the time 

it would take a reasonable officer to confirm or dispel her 

suspicions, a judge may find that a de facto arrest has 

occurred. In determining whether a de facto arrest has 
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occurred, courts will consider a variety of factors, including: (1) 

the purpose behind the stop and the nature of the crime; (2) 

whether the officer diligently sought to carry out the purpose 

behind the detention; (3) the amount of force used, and the 

need for such force; (4) the extent to which an individual‘s 

freedom of movement was restrained; (5) the number of officers 

involved; (6) the duration and intensity of the stop; (7) the time 

and location of the stop; and (8) the need for immediate action. 

If a de facto arrest occurred and it was not supported by 

probable cause, it is an illegal arrest and any evidence derived 

from it (for example, evidence found in the suspect‘s pocket as a 

result of a search incident to the unlawful arrest) will be 

inadmissible. 

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, an officer develops reasonable 

suspicion that the individual is presently armed and dangerous, 

he or she 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 an officer during an investigative stop. The officer may 

not utilize a Terry frisk to look for evidence of a crime. To 

justify a ―frisk,‖ an officer must demonstrate two things: (1) 

first, the investigatory stop must be lawful; and (2) second, to 

proceed from a stop to a frisk, the officer must reasonably 

suspect that the person stopped is armed and dangerous. 

Arizona v. Johnson. 

A ―frisk‖ is a limited search for weapons. It may be 

conducted even after the suspect has been handcuffed. The 

officer may check the outside of the suspect‘s clothing for any

hard objects that could potentially be a weapon concealed 

underneath. Once a potential weapon or hard object that could 

be used as a weapon is encountered, the officer is entitled to go 

inside the clothing and retrieve the object. When dealing with 

winter clothing, the officer may reach inside and beneath a 

heavy jacket and frisk underneath it to avoid missing any 
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potential weapons. The officer may also frisk the area under 

the suspect‘s immediate control, which can include any 

containers in the suspect‘s possession. 

(a) Factors Used to Justify a Terry ―Frisk‖

As with investigative detentions, the officer 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. The list of 

factors an officer may use to justify a Terry frisk is extensive. 

The following are some of the most commonly 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‖ or other movement by the suspect 

indicating he is checking or adjusting a hidden 

weapon or ensuring that it remains concealed; 

A suspect‘s words and actions, such as refusing to 

comply with an officer‘s directions to display his 

open hands;

A tip from a reliable informant that the suspect is 

armed and dangerous 

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 
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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 an officer, 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, an officer must meet two requirements. First, the 

frisk that led to the discovery of the evidence must have been 

lawful. Second, the incriminating nature of the item must be 

immediately apparent. This means the officer must have 

probable cause that the object encountered is contraband or 

criminal evidence based on what he or she initially felt. The 

officer is 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. 

Brendlin v. California. 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. Whether 

stopping a person on foot or in a vehicle, the standard is the 

same. The officer must have, at a minimum, reasonable 

suspicion that the person stopped is, or is about to be, engaged 

in criminal activity. The officer may also conduct a stop if he or 

she has reasonable suspicion to believe that a person in the 

vehicle is wanted for past criminal conduct or when you have 
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reasonable suspicion to believe the vehicle is carrying 

contraband. 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. As discussed in Section VII, this 

gives a passenger ―standing‖ to challenge the legality of the 

vehicle stop. 

(a) Permissible Actions During Vehicle Stops 

The Supreme Court has long recognized the very real 

dangers officers face when confronting suspects located in 

vehicles. For that reason, during vehicle stops officers may take 

such steps as are reasonably necessary to protect their personal 

safety. This would include, among other things:

Removing the driver and passengers from the 

vehicle;

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

Officers 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 an officer has reasonable suspicion to believe 

that the driver or passenger in a vehicle is dangerous and may 

gain immediate control of a weapon, the officer 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 
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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. However, officers 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, the officer must 

show that the extension was based either upon the driver‘s 

consent, or because the officer established reasonable suspicion 

during the original stop that some additional misconduct was 

occurring. Failure to establish either of these additional bases 

for 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 an officer uses a legal justification (e.g., 

an observed traffic violation) to stop an individual in order to 

investigate a different, more serious crime for which no 

reasonable suspicion exists (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. 
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V. The Use of Race in Law Enforcement 

The use of race as a factor in the performance of law 

enforcement 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 

Legal Division Reference Book. 

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). The decision of federal 

prosecutors ―whether to prosecute may not be based on  ̳an 

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.‖ Avery, 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. 
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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. 

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: 
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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 

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 
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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 

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, 

prevailing authorities have 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)]. 
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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 

application of strict scrutiny is of necessity a fact-intensive 

process. Pena,. at 236. 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 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. 
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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 search warrant 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 

―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 person 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 the officer are considered. The focus in 

determining probable cause is not on the certainty that a crime 

was committed, but on the likelihood of it. An officer‘s

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. 
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C. Establishing Probable Cause

An officer may establish probable cause in a number of 

ways. Perhaps the easiest way is through direct observations. 

An officer may use sense of smell, such as when smelling the 

odor of marijuana emanating from a vehicle. The standard may 

be met by a report of another law enforcement officer who is 

aware of facts amounting to probable cause. 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. An officer may rely on his or her training and experience 

in making a probable cause decision so long as there are 

sufficient facts to support it. Officers 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 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. 
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(a) Credibility of the Informant 

When the government uses a confidential informant to 

establish probable cause, it must establish that the informant is 

credible (worthy of belief). The government 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. 

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. 
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(b) Basis of Knowledge 

In addition to establishing the confidential informant‘s

credibility, an officer 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: 

How the informant became aware of this 

information.

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

(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. 
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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. The rule essentially states that 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. 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 does not prohibit the introduction of 

illegally seized evidence in every situation. Courts have 

developed a number of exceptions to the general rule. 

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 
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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. 

3. Good Faith 

In United States v. Leon the Supreme Court established a 

―good faith‖ exception to the exclusionary rule. Evidence seized 

by the government 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 

government 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 
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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. 

(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.‖ 

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.
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(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 

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 receive constitutional 

protections when they have come within the territory of the 

United States and developed substantial connections with the 

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 can be reached through the DOJ Main 

Switchboard (202) 514-2000. This office provides advice and 

assistance regarding the requirements for these agreements, 

and maintains a current list of mutual legal assistance 

agreements and treaties. 
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(c) Searches of United States Citizens and 

Resident Aliens in Foreign Countries 

The Fourth Amendment applies to searches and seizures 

against U. S. citizens and resident aliens while abroad when 

conducted by, on behalf of, or jointly with the United 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. Except for U.S. embassies overseas, 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 in order to comply with the 

Fourth Amendment. Any search that is conducted must also 

meet the reasonableness requirements of 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. 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 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 
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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, or civil tax proceedings. 

VIII. The “Plain View” Seizure Doctrine 

The plain view seizure doctrine allows officers to seize 

evidence they discover while in a public place or lawfully inside 

an REP-protected area. There are three requirements the 

government must meet for a permissible plain view seizure of 

evidence. First, the officer must lawfully be in a position to 

observe the item; second, the incriminating nature of the item 

must be immediately apparent; and third, the officer 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 the 

officer must have a lawful reason to be in the location from 

which he or she observed the item. A lawful reason to be in a 

dwelling would be a warrant, consent, or an exigent 

circumstance. If the officer conducted a lawful protective sweep 

(see Section XII below) while serving an arrest warrant and 

found a sawed-off shotgun in a bedroom closet, the officer may 

seize that evidence under the plain view doctrine. If the officer 

exceeded the lawful scope of a protective sweep by opening the 

medicine cabinet, however, any evidence observed 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 the 

officer has a legal right to be, but its incriminating character 

must also be immediately apparent. This requires the officer to 

have probable cause to believe that the object is contraband or 

evidence of a crime. If the officer must conduct some further 

search of the object before he or she 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 the officer can see the object from a place 

where he or she is lawfully present, the officer may not seize it 

unless he or she also has a lawful right of access to the object 

itself. Personal observations may convince an officer that 

criminal evidence is inside a premises. But even when the 

evidence is contraband, the basic rule is that the government 

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 
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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 

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 Procedure2.

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 

 

2

 These 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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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 

the defendant committed it.‖ An information is similar to a 

criminal complaint except that an Assistant U.S. Attorney 

(AUSA) prepares it. 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. 

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 upon the arrest of the defendant. 

―Upon arrest, an officer possessing the warrant must show it to 

the defendant.‖ There is no requirement, however, that the 

arresting officer 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 an officer arrests someone on a warrant issued 

upon a complaint, indictment, or information, the officer must 

return the warrant 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 

requirements for a lawful arrest are (1) probable cause, (2) 

arrest authority, and (3) a lawful right of access to the suspect. 
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A. Arrest Authority

In the federal system, the authority to make arrests varies 

from agency to agency. The scope of arrest authority is 

established by statute. Officers must know the extent of their

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. Officers 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. 

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. Federal officers may, in 

certain states, make arrests for violations of state 

law. This is typically referred to as ―peace officer‖ 

status. State law determines whether federal 

officers have such authority, which may then be 

restricted by 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. 

An officer‘s reliance upon ―citizen‘s arrest‖ authority 

should be rare.
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B. Arrests Based on Outstanding Arrest Warrants

On occasion, federal officers discover the existence of an 

arrest warrant for a person during the course of their regular 

duties. Officers 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). 

1. Outstanding Federal Warrants 

Authority to arrest is limited to statutory authority. The 

officer should verify that the warrant is still valid, and that the 

person arrested is the individual specified on the warrant. If an 

officer encounters a person with an outstanding federal warrant 

for a crime which is outside the scope of the officer‘s statutory 

arrest authority, he or she should detain the individual until an 

officer with the proper authority can make the arrest. 

2. Outstanding State Warrant 

No federal statute authorizes federal officers 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. 

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 
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a person without a warrant is typically a violation of the Fourth 

Amendment, regardless of whether the officer has probable 

cause to arrest the suspect. In order to lawfully enter a 

person‘s home to make an arrest, the officer 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 the officer 

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 

before executing the arrest warrant, courts look to the totality of 

the circumstances known to the officer 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);

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;
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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 the government to 

lawfully enter a home where the target does not reside to make 

the arrest. The government 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 level of probable cause required to make a 

warrantless arrest is the same as that required to obtain an 

arrest warrant. Assuming it is supported by probable cause, 

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 an officer has probable cause to believe that a 

suspect located in a public place has committed a felony 

offense, he or she 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 an officer has probable cause to believe that an 

individual has committed a misdemeanor offense in his or her 

presence, the officer may arrest the offender. An officer has 

probable cause to believe a misdemeanor is taking place ―in 

your presence‖ when the facts and circumstances as observed 

by the officer through his or her senses are sufficient to warrant 
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an officer of reasonable caution to believe that an offense is 

occurring. 

Neither the Constitution nor the Supreme Court 

mandates that a misdemeanor offense occur ―in an officer‘s 

presence.‖ for an arrest to be authorized. However, 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.3

XI. Title 18 U.S.C. § 31094 (The “Knock-and-Announce 

Statute”)

Title 18 U.S.C. § 3109 is commonly referred to as the 

―knock-and-announce statute.‖ It places specific requirements

upon federal law enforcement officers when executing warrants 

in dwellings. The statute requires more than simply knocking 

and announcing. 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 the government executes a search or arrest 

warrant in a residence, it must first announce its authority and 

purpose. 

A. The Statute

Titled ―Breaking Doors or Windows for Entry or Exit,‖ the 

statute provides as follows: 

 

3

 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. 

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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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 or her 

home.

C. A ―Breaking‖ Under the Statute

Although the phrase ―break open‖ implies some use of 

force, force is not the only manner in which the government can 

violate § 3109. Section 3109 essentially 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 

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 
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―break open‖ some part of a house when executing a search or 

arrest warrant. 

1. The Government Must First “Knock” 

Section 3109 actually contains no explicit ―knock‖ 

requirement, and instead only requires the government to give 

notice of its ―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 the government can give notice of its 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 the 

government announce its authority and purpose for being there. 

No special words are necessary to satisfy this requirement. 

Announcing the title of the 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 sanctioned words are 

spoken by the officers, or whether the officers rang the doorbell, 

but rather on how the words and other actions of the 

government will be perceived by the occupant. The test is 

whether those inside should have been alerted that the 

government wanted entry to execute a warrant. 

3. The Officers Must Be Refused or Denied 

Admittance 

The final requirement under § 3109 is that the officers be 

refused or denied admittance. Once the officers have been 

refused or denied admittance, they can use force to ―break‖ into 

the residence and 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: 
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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 the officers 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) the time it would take to begin 

destroying evidence once knock-and-announce is 

performed; and (6) any other observations 

supporting a forced entry, such as defensive 

measures taken by the residents of the premises. 

Sounds of Flight by the Occupants.

Seeing or Hearing 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 the officers 

are 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 the government 

to comply with § 3109 in all instances prior to using force to 

enter a residence. Instead, the statute has an ―exigent 

circumstances‖ exception, which allows officers 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, officers must have a 

reasonable suspicion, under the particular circumstances, that 

knocking and announcing their 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. Officers are not required to pause at 

the front door of a residence to ―knock and 

announce‖ their presence when they 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. They are still required to comply 

with the § 3109, and remain susceptible to civil liability and 

administrative discipline for violations.

G. ―No-Knock‖ Warrants

In the right circumstances, officers may request a ―noknock‖ warrant, which dispenses 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 the government 

anticipates exigent circumstances before searching, ask for presearch judicial approval to enter without knocking. The 

issuance of a warrant with a no-knock provision potentially 

insulates the government against the subsequent finding that 

exigent circumstances did not exist. 

The facts that justify a no-knock warrant are the same as 

those needed 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 instantly upon 
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knocking, or that knocking would be futile. A judge‘s decision 

to refuse authorization of a no-knock entry does not preclude 

officers, 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 the government obtains a no-knock warrant, it 

does not have to reaffirm the circumstances at the scene. The 

government is not permitted, however, to disregard reliable 

information clearly negating the existence of exigent 

circumstances when it actually received such information 

before the execution of the warrant. Under such 

circumstances, the government must reevaluate its 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 officers and 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. 

Officers 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. 
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Officers may use the incriminating evidence to obtain a search 

warrant for the premises. 

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 officers 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 was 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 
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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. 

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, suggestive utterances or actions 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 officers from 

performing protective sweeps of premises when an arrest occurs 

outside of that building. Instead, as with an extended 

―protective sweep,‖ the officers must have reasonable suspicion 

to believe a third party who poses a danger to officers 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 shot from one room 

to another. 
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XIII. Searches Incident to Arrest 

It has long been recognized that conducting a search 

incident to a lawful arrest is a reasonable search under the 

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. 

Officers 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 that the individual has been lawfully arrested 

automatically enables the officers 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, officers 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 
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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 

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 items 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 

arrestee. If the arrestee 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 arrestee 

(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. 
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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. 

1. The Person of the Arrestee 

When an officer makes a custodial arrest of an individual, 

he or she is entitled to search the arrestee‘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. The officer may search for 

weapons, evidence, and any means of escape. Any evidence 

found on the arrestee -- 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, the officer is 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 officers 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, 
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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 

generally lost (but not for the suspect‘s body).

This rule does not allow officers to move the arrestee from 

one place to another within the house for the purpose of 

justifying a search incident to arrest of a different area. 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. The officer may accompany 

the arrestee, of course, and seize evidence observed in plain 

view during the relocation. Should the arrestee 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. 

Note that an arrest outside of a home will not justify a search 

incident to arrest inside of the residence itself. 

 

3. Vehicles and Search Incident to Arrest 

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 before a search incident to the arrest of the vehicle is 

permitted. 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 
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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 

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, in that the Court allows 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. 
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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 

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 if 

the standards for that type of search are met. 

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. Officers 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: 
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United States Magistrate Judges (Rule 41(b)); 

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 officers 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 the government 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.5

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 

 

5

 This 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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to track the movement of a person or property 

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 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.‖ 
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The manifest purpose of this particularity 

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, the officer must 

establish probable cause to believe the evidence sought is 
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currently 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 

―bright-line‖ 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. The government must specifically 

describe the triggering event in the affidavit, and it must be 

something other than the mere passage of time. Officers 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, the officers 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, officers should 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. They should 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, 

the officers should include the unit number or apartment 

number.
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2. Particularity and Persons 

When describing a person, the officers should 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 the officers have information as to 

where the person can be found, they should include it as well. 

3. Particularity and Vehicles 

When describing a vehicle, the officers should 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. 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 the officer wishes 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 officers execute a search warrant, the general rule 

is that they may seize only those items that are particularly 

described in the warrant. The plain view doctrine, discussed 

above in section VIII, provides an exception to this general rule. 

When officers have a search warrant for specified objects, and 

in the course of the search come across some other article of 

incriminating character, they may seize it. Horton v. California. 

For instance, if officers have a warrant to search for 27‖ 

television sets, they can look in those areas where 27‖ television 

sets could be hidden. If, when searching those areas, they come 

across an item that they immediately recognize as incriminating 

(e.g., a controlled substance on the floor of a bedroom closet), 

they 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 the officers to broaden their 

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 the officers 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 

relevant to determine whether circumstances are exigent. 
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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 officers have time to use 

traditional procedures to obtain a search warrant, these 

traditional procedures must be used. But in between, when an 

exigency is looming or impending, there is not enough time to 

use the traditional process to obtain a warrant, but there is 

enough time 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.

1. Prepare the “Duplicate Original Warrant”

First, the officer must prepare a ―proposed duplicate 

original warrant.‖ The duplicate original warrant must be in 
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writing, although there is no requirement that the affidavit be in 

writing.

2. Read It Verbatim or Transmit it by Reliable 

Electronic Means 

Second, the officer must read or otherwise transmit the 

contents of that document verbatim to the magistrate judge. 

This means that the officer 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 the officer 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 the officer to modify the proposed duplicate original 

warrant accordingly. 

If the officer sent 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 the 

officer by reliable electronic means or direct the officer 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 the officer 

to sign the judge‘s name on the duplicate original warrant.

5. Time of Execution Must Be Entered on the 

“Duplicate Original Warrant” 

The officer must enter the exact date and time it is 

executed. 
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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 an officer is requesting a telephone 

warrant, the magistrate judge must place the officer under oath, 

which is administered at 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 

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 

the government in the execution of a search warrant. Some of 

the more common rules are listed below. 

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. § 

31056 determines who qualifies as an authorized officer. 

 

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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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. 

State and local law enforcement officers may assist 

federal officers 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. Issues can arise, however, when non-federal 

law enforcement officers assist in the execution of a federal 

search warrant. 

Private citizens may also lawfully assist federal officers in 

the execution of a federal search warrant when three general 

requirements are met. First, the private citizen‘s role must be 

to aid the government‘s efforts. Private citizens cannot be 

present during the execution of a search warrant solely to 

further their own goals. Second, the government must be in 

need of assistance from the private citizen. This may occur, for 

example, when officers 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 the government is

entitled to do. 

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 

 
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p.m. according to local time. To ―execute‖ the warrant means to 

make initial entry. After the initial entry, officers may remain 

on the premises as long as reasonably necessary to complete 

the search. 

Nighttime execution of a search warrant is also 

permissible but the government must 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. § 8797 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 14 days‖ from the date of 

issuance. 

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 

 

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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Fourth Amendment 

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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)(C)(i)-(ii).

C. Use of Force in Executing a Federal Search Warrant

The facts of each individual case determine whether 

officers 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. See further discussion in 

Subsection G below. 

D. Presenting the Warrant Prior to Beginning the 

Search

The general rule is that officers 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. A copy of the warrant does not necessarily 

include a copy of the affidavit. At least one federal circuit court 

of appeals (the Ninth) requires this course of action where no 

justifiable reason exists that would excuse it. 

E. Answering the Telephone While Executing a Search 

Warrant

Officers may answer a ringing telephone without violating 

the Fourth Amendment if they are lawfully on the premises 

executing a search warrant. Any incriminating evidence 

acquired from those telephone calls is not subject to 
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suppression on grounds of constitutionally protected privacy 

concerns. 

F. Temporary Seizure of Weapons

When, during the execution of a search warrant, officers

find a dangerous weapon (such as a handgun) that is not listed 

in the warrant and is not obviously contraband or evidence, 

they 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 

accomplished when the officers are able to exercise 

unquestioned control of the situation. 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. 
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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, 

officers 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 officers have determined 

that an occupant is not needed for the orderly execution of the 

warrant and poses no threat of harm if released, they should 

ordinarily release that person. 

As stated in Subsection C above, officers 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 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. 
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H. Frisking and Searching Persons on the Premises

Officers are not justified in automatically ―frisking‖ every 

person located on the premises during the execution of a search 

warrant. Instead, as with any frisk for weapons, officers must 

be able to explain the facts that gave them 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 the 

government 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 single fact that the 

government has 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, 

officers 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 

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. 
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1. Premises, Outbuildings, and Curtilage 

Officers 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, officers 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 Fifth and 

Seventh 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, officers 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 

premises being searched, the more likely an officer may search 

the visitor‘s personal possessions. The officer 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 
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belongings. The officer 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, the 

officer 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. The officer 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 officers execute search warrants, they 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 

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.‖
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L. A Copy of the Warrant and the Inventory Must Be 

Provided

Rule 41(f)(1)(C) requires that an officer 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.‖ This does not necessarily include the affidavit. 

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 

officers have probable cause to believe that a mobile conveyance 

located in a public place has evidence of a crime or contraband 

located within it, they may search it without first obtaining a 

warrant.
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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 case 

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, officers must have sufficient 

facts available to obtain a warrant from a magistrate judge. 

Under the ―Carroll Doctrine,‖ however, the requirement to 

obtain the warrant is excused. 

Officers may establish probable cause to search a vehicle 

in a variety of ways. For example, they may be able to establish 

probable cause based on a tip provided by a reliable confidential 

informant. They may establish probable cause through their 

personal observation of evidence or contraband in open view 

inside a vehicle. The ―plain smell‖ corollary to the plain view 

doctrine may also allow officers to establish probable cause to 

search a vehicle based upon their sense of smell.

The second requirement for a valid search under the 

mobile conveyance exception is that the vehicle be ―readily 

mobile‖ at the time the officers 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 
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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. Even if the government had the opportunity to 

obtain a warrant and failed 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 the officers have probable cause to search a readily 

mobile vehicle, they may either conduct the search immediately 

or later at another location. 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 

secured. ―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 the government wide 

latitude in deciding when to conduct a vehicle search, officers 

are still required to act ―reasonably‖ and may not indefinitely 

retain possession of a vehicle and its contents before completing

a vehicle search. If, for example, officers knew they would not 

be searching a car for two weeks after seizing it, a search 

warrant should be obtained to support the search. 
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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.‖ If a search warrant could 

authorize the officers to search for an item in a particular 

location, such as the passenger compartment or trunk of the 

vehicle, they may search there without a warrant under the 

mobile conveyance exception to the warrant requirement. 

Probable cause to search does not automatically entitle 

the government 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 officers have probable cause to believe that a 

vehicle contains a full-size shotgun, they may not lawfully look 

inside the glove compartment during the search.

Officers are generally not required to have a 

―particularized‖ suspicion that evidence (e.g., drugs) is located 

in the trunk before they may lawfully search that area. For 

example, if drugs (or drug paraphernalia) are found in the 

passenger compartment of a vehicle, they 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 officers have probable cause to search the entire vehicle 

and discover a closed container during the search, they may 

search the container, whether locked or unlocked, if what they

are seeking could be concealed inside of it. The scope of a 

warrantless search of an automobile is not defined by the 

nature of the container in which contraband is hidden. Rather, 

it is defined by the items the officers are searching for and the 
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place in which there is probable cause to believe they may be 

found.

If the government has probable cause to believe a specific 

container inside a vehicle contains evidence of a crime or 

contraband, officers may stop and search the vehicle to retrieve 

that container. Once retrieved, they 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 the officers 

wish to extend their search to the entire vehicle, they 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 officers 

have probable cause to search a car, they may search 

passengers‘ belongings found in the car that are capable of 

concealing the object of the search. Wyoming v. Houghton. 

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 entry or 

search is necessary to prevent the escape of a suspect, the 

destruction of evidence, or the death or injury of a person. 

Exigent circumstances can apply to persons, dwellings, and 

vehicles.

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 
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include: (a) the gravity or violent nature of the offense with 

which the suspect is to be charged; (b) a reasonable belief that 

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.‖ 

Mincey v. Arizona and Terry v. Ohio. 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 the three types of exigent 

circumstances officers 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 the officers actually 
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observe the suspect commit the crime, nor does it 

require the officers to actually see the suspect flee 

from the scene of the crime. 

From a Public Place. ―Hot pursuit‖ occurs when a 

suspect enters an area of REP 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. Officers must have probable cause to 

believe the suspect is inside. Probable cause may 

be based on their own observations or on 

information provided 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 officers to make a warrantless search of an 

area or item when they 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 the officers‘ position would 

believe based on the facts available to them 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 law enforcement 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 
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evidence. The majority rule, (followed in the Sixth, Eighth, and 

D.C. Circuit Courts of Appeal), holds that a warrantless search 

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 the government from making 

warrantless entries and searches when it 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) officers must have objectively reasonable 
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grounds to believe that there is an emergency at hand and an 

immediate need for their assistance for the protection of life or 

property; and (2) there must be some reasonable basis, 

approximating probable cause, to associate the emergency with 

the area or place to be searched.8 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, officers may seize 

any evidence that is in plain view during the course of their 

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. Officers may enter an 

emergency scene without a warrant to tend to victims and 

locate suspects, but once those things are done, the emergency 

is over. When the emergency ends, so does an officer‘s right to 

be present in the location without a warrant. If the officers stay 

behind and ―process the scene‖ without obtaining a warrant or 

valid consent, the evidence they gather will probably not be 

admissible in court. In three separate cases, the Supreme 

Court has rejected attempts at creating a ―crime scene‖ 

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 

 

8 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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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 the government obtains valid 

consent to search a given area or object, neither reasonable 

suspicion, nor probable cause, is required. In situations where 

officers 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 force or threat, either explicit or implicit. 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 voluntarily granted 

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;
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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; 

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 or told that he had a right to refuse to 

consent—while the law does not require that either 

statement be given, one who consents after being so 

informed will have a very difficult time challenging 

the voluntariness of his 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);
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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 an officer falsely asserts an independent right to 

make the search. For example, consent given only after the 

officer asserted that he had a warrant is not truly voluntary in 

that he was ―announcing in effect that the [individual] has no 

right to resist the search.‖ Bumper v. North Carolina. The 

government has 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, after knocking on a person‘s door and, 

when the person answers, an officer asks for permission to 

enter the residence. Without saying anything, the person steps 

back and clears a path for the officer to enter the home. In this 

case, the person‘s actions have given the officer 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. 
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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. Officers 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, they may not isolate or remove the potentially nonconsenting party just to avoid a possible objection to the search. 

Georgia v. Randolph. 

Officers may also obtain valid consent from an individual 

who has apparent authority over the place or item to be 

searched. This typically occurs when an officer conducts a 

warrantless search based upon the consent of a third-party who 

the officer, at the time of the search, reasonably -- but 

mistakenly -- believe possesses common authority over the 

object. If the officer‘s belief is reasonable considering all of the 

facts available 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 the officer 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. 

Officers should seek additional, express permission to search a 

locked container (e.g., a locked briefcase) and proceed only if 
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consent is granted. To support the reasonableness of any such 

search, the officer should 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.‖ 

The government must honor such a limitation. An individual 

may also revoke consent. When consent is revoked, the 

government is required to stop searching, unless another 

exception to the Fourth Amendment‘s warrant requirement 

(e.g., probable cause to search a vehicle) is present. 

C. Third-Party Consent Situations

The types of third party consent situations that officers

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. As discussed above, however, 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. Georgia v. 

Randolph. 

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. 
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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. 

Officers should 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. 

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. 
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XXI. Inventory 

An inventory occurs when law enforcement officers go 

through a car or other container, locate and identify its 

contents, and secure the contents if necessary. An inventory is 

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 

may be conducted if it is done ―reasonably.‖ South Dakota v. 

Opperman. Inventories 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 

inventories should be designed to produce a list of personal 

property found in the vehicle. An inventory is invalid when 

conducted in bad faith or for the sole purpose of investigation. 

Criminal evidence found during a lawfully conducted 

inventory may be seized under the plain view seizure doctrine 

and may provide probable cause for a warrant or for a more 

thorough search under an exception such as the ―Carroll

doctrine.‖

A. Justifications for Inventories

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 government custody. 

Second, an inventory protects the officers against claims or 

disputes over damaged, lost or stolen property. And third, an 

inventory is necessary to protect the officers from potential 

dangers that the property may pose. 

B. Requirements for Inventory

To conduct a lawful inventory, two requirements must be 

met. First, officers must have lawfully come into the possession 

of the property being inventoried. Second, the officers must 

conduct the inventory pursuant to a standardized policy. 
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1. Lawful Impoundment 

An inventory 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 

Valid inventories can only be conducted if the government 

agency has a standardized policy governing how inventories are 

to be conducted, and the officers 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. This absence of discretion ensures that inventories 

will not be used as a purposeful and general means of 

discovering criminal evidence.

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 inventories 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 

inventories and are conducted in good faith.

C. Scope of Inventories

The scope of an inventory is defined by the standardized 

inventory policy of the particular agency involved. As a general 

rule, inventories may not extend any further than is reasonably 

necessary to discover valuables or other items for safekeeping. 

For example, when conducting an inventory of a vehicle, officers 

would not be justified in looking inside the heater ducts, the 
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door panels, the gas tank, or the spare tire. Valuables are not 

normally kept in such locations. 

Officers may conduct an inventory 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. 

Inventories of the trunk have also been found valid. Officers

may conduct an inventory 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 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, officers should use keys 

or other tools to enter it in order to comply with the Fourth 

Amendment. Finally, a valid inventory may include the engine 

compartment of a vehicle. 

D. Location of an Inventory

Although inventory searches typically occur at an agency 

station or an impoundment facility, rather than at the time of 

the arrest, the Fourth Amendment does not require that the 

government conduct inventory searches at any particular 

location. Officers 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 can include inspecting 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 
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Fourth Amendment 

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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 

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. 
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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.

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. 

Officers should seek consent to conduct an administrative 

search 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. 
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Fourth Amendment 

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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.

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 sensitive government facilities and 

airports generally consists of using magnetometers, explosives 

detectors, and x-ray machines to examine individuals and their 

containers. The use of both magnetometers and x-ray 

machines to scan individuals and their belongings constitutes a 

search implicating the Fourth Amendment. These searches are 

evaluated by courts in light of the presumption that searches 

conducted without a warrant are presumed to be unreasonable 

unless they fall within one of the recognized exceptions to the 

warrant requirement. 

1. Searches at Security Checkpoints 

Security screening searches at facilities such as airports, 

military bases, courthouses, and other sensitive government 
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Fourth Amendment 

376

facilities fall within the class of administrative 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 preventing the introduction of 

dangerous material onto airplanes and into sensitive 

government facilities, thus, searches of those who present 

themselves for entry into those areas are reasonable when 

carried out in accordance with a regulatory scheme. 

2. Searches Before and After Security 

Checkpoints 

Different standards apply to searches conducted at 

designated security checkpoints as opposed to those conducted 

in other areas of airports or sensitive government facilities. In 

airports, for instance, persons who have not attempted to 

access the secure terminal are not subject to an administrative 

search. Intrusions into their REP at that point must be 

supported by some other Fourth Amendment justification, like a 

Terry frisk. The same applies at a federal courthouse or a 

military base. People cannot be compelled to undergo an 

administrative search prior to presenting themselves for entry 

into the facility. If they choose to enter the area, however, they 

must pass through the security checkpoint. The administrative 

search at the checkpoint must be no more intrusive than 

necessary to accomplish the agency‘s regulatory purpose. Once 

people have successfully passed through the checkpoint, the 

administrative search is over and the exception no longer 

applies. A warrant or other Fourth Amendment exception will 

be required to justify any further intrusions. 

3. The Point of No Return 

Individuals wishing to fly on an airplane or enter a 

sensitive government facility are required to participate in the 

security screening process. Those not willing to undergo 

security screening have the option of choosing not to travel by 

aircraft or not to enter the government facility. In fact, 

administrative screening searches are valid only if they 
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Fourth Amendment 

377

recognize the right of a person to avoid a search by electing not 

to enter the security checkpoint area. 

While an individual has the right to avoid a search by 

choosing not to enter a secure 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 turn back. 

A rule allowing someone to leave without a search after an 

inconclusive x-ray scan would encourage terrorism by providing 

a secure exit whenever detection was likely. Also, a security 

screening agent has a duty to ferret out firearms and explosive 

devices carried by persons seeking entry. 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 not 

to enter the controlled area before placing baggage on the x-ray 

machine‘s conveyor belt or walking through the magnetometer.

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

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. 
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Fourth Amendment 

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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

Properly designated officers may conduct a border search 

even when they have no suspicion that the traveler is violating 

the law. Agency policies may set some restrictions on those 

officers to conduct such searches and choose which travelers to 

search. Violating those restrictions may expose the officers 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 
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Fourth Amendment 

379

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, officers 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.

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. 
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Fourth Amendment 

380

(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, properly designated 

officers may lawfully conduct border searches at these 

functional equivalents of the border:

i. Persons and objects entering the country 

Properly designated officers may stop and search persons 

and objects entering the United States if the following 

conditions exist: 

The officers is reasonably certain that a nexus 

exists between the person or object and either a 

border-crossing by them or contact by them with 

something that has itself crossed the border; 

The officer is reasonably certain that no material 

change has occurred to the object or person since 

this nexus has formed; 

and
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Fourth Amendment 

381

The officer stops and/or searches at the first 

practical detention point after the nexus has 

formed.

ii. Persons and objects leaving the country 

Properly designated officers may stop and search persons 

and objects leaving the United States if the following conditions 

exist:

The officer is reasonably certain that a nexus will 

arise between the person or object and either a 

border-crossing by them or contact by them with 

something that will itself cross the border; 

The officer is reasonably certain that no material 

change will occur to the object or person before this 

nexus has formed;

and

The officer stops and/or searches 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 

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. 
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Fourth Amendment 

382

(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. Properly designated officers still

cannot assert extended border search authority unless: 

The officer is 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; 

The officer is reasonably certain that no material 

change has occurred to the object or person since 

this nexus has formed; 

and

The officer had reasonable suspicion that criminal 

activity will be uncovered by the stop or search. 

Extended border search authority is sometimes relied 

upon when officers follow smugglers from the border to their incountry rendezvous point, to catch other members of the 

smuggling conspiracy waiting there. 
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383

Chapter Ten 

Government Workplace Searches1 

I. INTRODUCTION................................................................. 383

II. DEFINING THE “WORKPLACE”.............................................384

III. IS IT A “SEARCH” UNDER THE FOURTH AMENDMENT? ............385

A. Does REP Exist? ............................................................... 385

1. Prior Notice to the Employee ........................................ 386

2. Common Practices and Procedures .............................. 388

3. Openness and Accessibility .......................................... 389

4. The Position of the Employee ....................................... 390

5. Waiver of Rights ........................................................... 391

IV. WAS THE SEARCH REASONABLE? ........................................391

A. Searches for Work-Related Purposes ................................. 393

1. Non-investigatory purpose ........................................... 393

2. Work-related misconduct investigations....................... 393

3. ―Reasonable‖ intrusions............................................... 394

B. Searches for Evidence of Criminal Violations .................... 395

C. ―Dual-Purpose‖ Searches .................................................. 396

***** 

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, 

discover whether the employee is misusing government property 

such as a government-owned computer, or 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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Government Workplace Searches 

384

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, consider using this twopart 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, 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 

385

investigate instances of child neglect and 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 apply only 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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Government Workplace Searches 

386

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 objectively 

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). However, 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-bycase basis. 

REP does not turn on the nature of the property interest 

in the searched area or item, but instead 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 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: 

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 

 

3 This case is briefed in the companion book, Legal Division Reference Book.
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Government Workplace Searches 

387

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, which 

resulted 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. 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 notice destroyed any REP that Muick might 

have had. As stated by the court: 

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 
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Government Workplace Searches 

388

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 

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.
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Government Workplace Searches 

389

Other federal courts in analogous cases have reached 

similar 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 each 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, by itself, 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, 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 
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Government Workplace Searches 

390

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 

Fourth Amendment violation. 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 

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 
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Government Workplace Searches 

391

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 objectively reasonable, 

based on the totality of the circumstances (especially those 

discussed above). 

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 
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392

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 

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. 
_______________ 

Government Workplace Searches 

393

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 compact disk. For this reason, public employers 

must be given wide latitude to enter employee offices for workrelated, 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 

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 
_______________ 

Government Workplace Searches 

394

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 

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 

 

4 This case is briefed in the companion book, Legal Division Reference Book.
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Government Workplace Searches 

395

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 addressed 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 

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 
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Government Workplace Searches 

396

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 for personal use. This conduct 

would constitute a violation of workforce policy rules on 

appropriate government computer/Internet usage and is clearly 

criminal in nature. In such a situation, a public employer has 

two purposes in conducting a search: (1) to 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 
_______________ 

Government Workplace Searches 

397

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
_______________ 

Officer Liability 

399

Chapter Eleven 

Officer Liability 

I. INTRODUCTION................................................................. 400

A. Civil Rights ....................................................................... 400

B. Civil Liability ..................................................................... 401

1. Definition of a Tort ....................................................... 401

2. Torts Versus Crimes .................................................... 401

II. CRIMINAL REMEDIES.........................................................402

A. Title 18 U.S.C. § 241, Conspiracy Against Rights .............. 402

1. Elements of Crime One ................................................ 403

2. Elements of Crime Two ................................................ 403

B. Title 18 U.S.C. § 242, Deprivation Under Color of Law ...... 404

1. Elements ..................................................................... 405

2. ―Under Color of Law‖.................................................... 405

3. ―Specific Intent (Willfully)‖............................................ 406

III. CIVIL REMEDIES - CONSTITUTIONAL TORTS...........................406

A. 42 U.S.C. § 1983 (Deprivation of Rights) ........................... 407

B. Bivens v. Six Unknown Named Agents of the Federal Bureau 

of Narcotics ....................................................................... 408

IV. COMMON INCIDENTS AND IMMUNITY ....................................409

A. Arrests and Searches Without Probable Cause .................. 409

B. False or Misleading PC Affidavit ........................................ 410

C. Excessive Force Claims ..................................................... 411

D. Failure to Intervene When Excessive Force is Used ........... 412

E. Immunity For Constitutional Violations ............................ 413

1. Sovereign Immunity ..................................................... 413

2. Absolute Immunity ...................................................... 413

3. Qualified Immunity ...................................................... 414

V. CIVIL LIABILITY FOR TORTS ...............................................415

A. Negligent Torts .................................................................. 415

1. Duty ............................................................................ 416

2. Breach of Duty ............................................................. 417

3. Causation .................................................................... 418

4. Damages ...................................................................... 418

B. Intentional Torts ............................................................... 419

1. To the Person ............................................................... 419

2. To Property .................................................................. 419
_______________ 

Officer Liability 

400

VI. THE FEDERAL TORT CLAIMS ACT (FTCA) .............................420

A. Negligent Torts .................................................................. 420

B. Intentional Torts ............................................................... 421

C. Scope of Employment ........................................................ 421

1. The Federal Good Samaritan Act ................................. 422

2. Government Vehicles ................................................... 423

3. Certification of Within the Scope of Employment ......... 423

D. Initiating a Civil Lawsuit under the FTCA .......................... 424

E. Defenses ........................................................................... 424

1. To Negligent Torts ........................................................ 425

2. To Intentional Torts ..................................................... 425

***** 

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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Officer Liability 

401

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 
_______________ 

Officer Liability 

402

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.‖
_______________ 

Officer Liability 

403

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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Officer Liability 

404

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.‖
_______________ 

Officer Liability 

405

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 
_______________ 

Officer Liability 

406

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, bases.
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Officer Liability 

407

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.‖
_______________ 

Officer Liability 

408

―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.
_______________ 

Officer Liability 

409

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 wrongdoing 

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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Officer Liability 

410

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 will not be granted.

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 

Qualified immunity is immunity from civil suit and 

entitles an officer to avoid standing trial or face the burdens 

associated with civil litigation. 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 
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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 

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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Officer Liability 

416

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. 

[Chart removed for compliance with Section 508 of the 

Rehabilitation Act of 1973, as amended by 29 U.S.C. § 794 (d).]

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 
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Officer Liability 

417

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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Officer Liability 

418

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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Officer Liability 

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B. Intentional Torts

The elements of an intentional tort are similar 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.

2. Intentional Torts to Property 

Trespass (damage) to Land (real property) 

Trespass (damage) to Chattels (personal property) 

Conversion (personal property) (theft)
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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 

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. 
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Officer Liability 

421

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 

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 
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Officer Liability 

422

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 

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, 
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Officer Liability 

423

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.‖

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 
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Officer Liability 

424

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. 

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.
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Officer Liability 

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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 

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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NOTES 
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Searching and Seizing Computers 

427

Chapter Twelve 

Searching and Seizing Computers 

 and Other Electronic Devices 

I. INTRODUCTION................................................................. 428

II. PRIVATE SEARCHES ..........................................................428

III. REP IN COMPUTERS..........................................................429

A. Generally .......................................................................... 429

B. Losing REP ....................................................................... 430

1. Exposure to the Public ................................................. 430

2. Stolen Computers ........................................................ 430

3. Third Party Possession ................................................. 430

IV. EXCEPTIONS TO THE WARRANT REQUIREMENT ......................431

A. Consent ............................................................................ 431

1. Requirements .............................................................. 431

2. Scope of a consent search ............................................ 431

3. Third party consent ..................................................... 432

4. Implied consent and network banners ......................... 434

B. Exigent Circumstances ..................................................... 435

C. Plain View ......................................................................... 436

D. Search Incident to Arrest .................................................. 439

E. Inventory Searches ........................................................... 441

V. PREPARING A SEARCH WARRANT .........................................441

A. The Need for Pre-Search Information ................................ 442

B. Where to Look and What to Look For ................................ 443

1. The Independent Component Doctrine ......................... 443

2. What to Look For ......................................................... 444

C. Justifying Off-Site Searches .............................................. 445

D. The Need for Multiple Search Warrants ............................. 447

VI. EXECUTING A SEARCH WARRANT.........................................448

A. Technical Assistance During Execution............................. 448

B. Knock and Announce ........................................................ 449

C. Time Frames Governing Retention of Seized Computers .... 451

VII. AUTHENTICATION OF COMPUTER INFORMATION .....................451

***** 
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Searching and Seizing Computers 

428

I. Introduction 

The Fourth Amendment requires that all searches must 

be reasonable and that any search based upon a search 

warrant be based upon sworn facts showing probable cause to 

search a particular place or to seize a person or thing. Searches 

of computers and other electronic devices must therefore be in 

compliance with the Fourth Amendment‘s requirements. 

A warrant to search a computer must demonstrate 

probable cause that evidence of a crime is stored on the 

particular computer to be searched. In executing a computer 

search warrant, you must take reasonable steps to confine your 

search to the scope of the search authorized by the warrant and 

to avoid searching for items or information not within that 

scope; however, while doing so, if you observe evidence that is 

immediately apparent to you is evidence of another crime, you 

may seize it under your plain view authority. 

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. For example, when a computer owner takes 

his computer to a private repair facility for servicing and 

incriminating evidence is found on the computer by the repair 

person, the Fourth Amendment does not apply because there 

was no intrusion into a REP area. 

When searching without a warrant after a private search 

has occurred, you must limit your investigative search to the 

precise scope of the private search. Even though it was obtained 

without a warrant, the evidence within that scope may be 
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Searching and Seizing Computers 

429

properly used by you to obtain a warrant for a further search of 

that computer. Moreover, you may temporarily seize that 

computer while you are actively seeking a search warrant. Of 

course, you could also conduct a warrantless search of that 

computer if a valid exception to the warrant requirement 

applies.

III. Reasonable Expectation of Privacy in Computers 

A. Generally

There is a two-prong test for REP as to any place to be 

searched: first, whether the individual exhibited a personal, or 

subjective, expectation of privacy as to the place or thing to be 

searched; and, second, whether that expectation is one society 

is prepared to recognize as objectively reasonable. REP does not 

exist unless both prongs of the test are met. 

In computer search cases, the question is whether an 

individual enjoys a reasonable expectation of privacy in 

electronic information stored on computers, smart phones, 

thumb drives, 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, some

courts have compared computers to closed containers such as 

filing cabinets. 

To be sure, 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. That said, however, a few courts have recently 

begun veering away from that concept noting that a computer, 

given its design and purpose, very likely contains vast 

quantities of personal data. Thus, those courts have to varying 

degrees required the government to insure that it takes 

reasonable steps to insure that the execution of a computer 

search remains within the scope of the search authorized by the 

underlying search warrant. 
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430

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. United States1, 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. For example, this 

may occur when a person leaves data that is not encrypted or 

password protected on a computer that is accessible to others, 

or where one makes his computer files available to others via 

peer-to-peer software. 

2. Stolen Computers 

A thief has no REP in the contents of a computer he has 

stolen, including content that the thief has added to the stolen 

computer. This also applies to 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. 

3. Third Party Possession 

The courts have repeatedly held that one who divulges

information to a third party, even with the subjective 

expectation that the information will remain private, does not 

retain control over that information once it has been provided to 

the third-party. Rather, he assumes the risk that the third 

party will divulge the information to others. 

 

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

companion book, Legal Division Reference Book.
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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 voluntary and not the result 

of coercion. 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. 

Second, the consent must be also given by an individual 

who possesses either actual or apparent authority over the 

computer to be searched. Do parents, roommates, friends, or

others have the authority to consent to a search of another 

person‘s computer files? Generally, the answer to that question 

depends upon whether the owner of the computer has afforded 

the consenting person shared access to those computer files. 

2. Scope of a consent search

Assuming voluntary consent by a person with authority 

to give it, the next issue is the scope of the consent that was 

given. For example, when a target consents to the search of his 

―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) located near 

the computer? 
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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. If so, the scope of a consent search may 

not exceed, either in duration or physical scope, the limits of 

the consent given. Additionally, where consent has been 

granted, it may also be revoked. If that happens, you must 

immediately stop searching unless another Fourth Amendment 

exception applies. Of course, any incriminating evidence that 

you discovered before the consent was revoked may be used to 

demonstrate probable cause in support of a search warrant. 

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‖ would ordinarily 

include the active memory and internal hard drives of the 

computer case or body, 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 own or use the same 

computer equipment. Generally speaking, if any of those people 

give permission to search for data, you may rely on that 

consent. In such cases, all users have assumed the risk that a 

co-user might discover everything in the computer, and might 
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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 shared or common 

authority and those areas outside the third party‘s control.

Prior to the Supreme Court‘s holding in Georgia v. 

Randolph in 2006, consent by an owner or resident of a 

dwelling was sufficient to justify a warrantless search the 

dwelling even if another occupant objected. Randolph reversed 

that line of cases and held that the refusal of a physically 

present co-owner or resident to permit the warrantless search of 

the dwelling would invalidate that search as to the nonconsenting party. No federal court has yet expanded the 

rationale in Randolph to invalidate a consent search of a 

computer in the home when the wife gave consent but the 

husband – who was also present – objected to the search. 

Indeed, at least one Circuit Court has specifically declined to 

expand the holding of Randolph to personal property, in 

particular, a computer.2 Therefore, you should seek local legal 

advice before conducting a warrantless computer search in 

these circumstances. 

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.3

 

2

 United States v. King, 604 F.3d 125 (3d Cir. 2010). 

3 The District Court of Vermont has held that, when it has lawfully seized a 

computer containing encrypted files, the government may compel the owner 

of that computer, via grand jury subpoena, to disclose the decryption key for 

those files without violating the owner‘s Fifth Amendment right against selfincrimination. In re Grand Jury Subpoena (Boucher) 2009 U.S. Dist. LEXIS 

13006 (D.Vt February 19, 2009).
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4. Implied consent and network banners 

The Fourth Amendment prohibits all "unreasonable 

searches and seizures" by a government employer or supervisor 

of a place where an employee of that government agency has a 

legitimate expectation of privacy. A legitimate expectation of 

privacy may exist as to the employee‘s office, desk, filing 

cabinets, and computer. The Supreme Court has recognized, 

however, that office practices, procedures, or regulations may 

reduce or narrow an employee‘s legitimate privacy expectations. 

O'Connor v. Ortega. 

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 

―banners.‖ Banners are written notices that greet users before 

they log on to a computer or computer network. These notices 

will typically reflect that the owner of the computer and/or 

network to which the computer is connected may, as it deems 

appropriate, audit, inspect, and/or monitor employees' use of 

the Internet, including all file transfers, all websites visited, and 

all e-mail messages. This policy places the employees on notice 

that they may not reasonably expect that their use of the 

agency computer would be private. 

Alternatively, it may be said that a government agency‘s 

banner policy results in the employee‘s implied consent to the 

search by his employer of otherwise private areas in his office. 

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. 

In any event, the best practice for a criminal investigator 

is always to consult with an AUSA before relying on a banner 

search.
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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 arise in computer cases 

because electronic data may be easily altered, concealed, or 

destroyed. This can happen in a matter of seconds as the result 

of manual or pre-programmed computer commands or physical 

mutilation, as well as from excess humidity, temperature, or 

magnetic fields created, for example, by passing a strong 

magnet over a hard 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 a warrantless search based on that exigency ends as 

well. In short, the need to prevent the destruction of evidence 

does not authorize you to search without a warrant once the 

likelihood of such destruction 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. 
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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 engage in a 

search for which you do not have independent authority, such 

as consent or a search warrant. Rather, while you are engaged 

in an otherwise lawful search, plain view allows you to seize 

evidence of another crime when the incriminating nature of that 

evidence is immediately apparent to you. 

In computer cases, this means that you may not 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 constitutes 

probable cause evidence of a crime, you may immediately seize 

that computer to prevent the destruction of the data. 

Thereafter, if you wish to conduct a further search of that 

computer, you will need a warrant or consent to do so; however, 

what was seen on the monitor may be used to establish 

probable cause. 

It would seem logical, therefore, to conclude that the plain 

view rule would also apply to a search of a computer pursuant 

to a warrant and the discovery of evidence outside the scope of 

the warrant. For example, while executing a search warrant to 

look for evidence of fraud, an agent opens a computer file that 

turns out to be an image of child pornography.4 This image 

would be admissible because the agent was lawfully searching 

 

4 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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the computer pursuant to a warrant. Moreover, if, while 

continuing the search for evidence of the fraud pursuant to the 

search warrant, the agent discovers more child pornography, 

those images would also be admissible. On the other hand, if 

the agent decides to redirect his efforts towards finding more 

child pornography, the plain view exception would not apply 

because he would have ventured outside the scope of the initial 

search warrant. To do so lawfully, the agent must first obtain a 

search warrant related to his search for child pornography. 

While the foregoing is the law in nearly all of the federal 

circuits, a recent Ninth Circuit decision suggests that Court will 

not apply the plain view doctrine as broadly to computer 

searches as it may to other searches. In U.S. v. Comprehensive 

Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (CDT), while 

searching the defendant‘s computers for records of steroid 

testing results as to certain athletes named in a search warrant 

for such records, the government opened and read the results of 

the testing of other athletes not named in the search warrant. 

The government argued that, under the plain view doctrine, its 

agents were allowed to view any records stored on the target 

computer where records included within the scope of the search 

warrant could be located. The Court rejected that argument 

saying that, given the large amount of innocent data routinely 

stored on a computer by its owners or users, the government 

should be required to obtain from the Magistrate Judge advance 

approval of its search protocols in computer search cases. This 

would include the use an objective third party to conduct a first 

review of computer files to identify those which are covered by 

the search warrant and to segregate those files from review by 

government agents. In subsequent rehearings by the Ninth 

Circuit in CDT, the court has softened that ruling somewhat to 

make it discretionary rather than mandatory procedure for 

establishing the proper scope of a search warrant. 

Other Circuits that have tackled this issue have declined 

to follow the CDT court‘s analysis. For example, in United 

States v. Mann, 592 F.3d 779 (7th Cir. 2010), the Seventh 

Circuit, in the context of a video voyeurism case, expressly 

declined to follow the Ninth Circuit‘s decision in the CDT case. 

The Mann court approved the government‘s use of software to 
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identify and isolate all photographic files on the suspect‘s 

computer and to display those files in a thumbnail format to 

allow the agents to determine which of them were within the 

scope of the search warrant. The same court declined to uphold 

the government‘s use of another feature of that software that 

identified child pornography through the use of hashing 

algorithms, since the search for child pornography was beyond 

the scope of the underlying search warrant. 

Five other circuit courts have rejected the argument that 

the Fourth Amendment requires that computer search warrants 

contain search protocols. See United States v. Mann, 592 F.3d 

779, 785-86 (7th Cir. 2010); United States v. Cartier, 543 F.3d 

442, 447-48 (8th Cir. 2008); United States v. Khanani, 502 F.3d 

1281, 1290-91 (11th Cir. 2007); United States v. Brooks, 427 

F.3d 1246, 1251-53 (10th Cir. 2005); United States v. Upham, 

168 F.3d 532, 537 (1st Cir. 1999) (―The warrant process is 

primarily concerned with identifying what may be searched or 

seized—not how‖); United States v. Himmelreich, 265 Fed. Appx. 

100 (3d Cir. 2008) (unpublished). 

Unless and until the Supreme Court provides guidance 

on this issue, the best and recommended rule is that an agent 

should articulate the scope of those things for which search 

authority is sought as broadly as the probable cause evidence 

will allow, but always with the maximum particularity. During 

the execution of a computer search warrant if you find evidence 

of a crime that is arguably outside the scope of the warrant, you 

may seize it under your plain view authority. If you have not yet 

concluded the search reasonably permitted by the search 

warrant, you may, of course, continue that search. If, however, 

your intent is in any way to expand your search to include 

evidence of the criminal activity beyond the scope of the search 

warrant, you must obtain a separate search warrant. In doing 

so, you may, of course, use the newly discovered evidence. The 

best practice, however, would be to suspend the original search, 

unless to do so would in some way compromise your originallyauthorized search, and then re-commence searching once you 

have obtained the additional search authority. 
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D. Search Incident to Arrest

A search conducted incident to a lawful custodial arrest is 

a well-recognized exception to the warrant requirement. Such 

searches have been acknowledged by the U.S. Supreme Court 

as reasonable and 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. Chimel v. 

California, 395 U.S. 752 (1969). The permissible scope of a 

search incident to arrest (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 

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 underlying arrest.

Over the past several years, the courts have been 

confronted with the issue of whether the scope of search 

incident to arrest authority includes the warrantless review of 

data stored on electronic devices in an arrestee‘s possession at 

the time of arrest. For example, while recognizing that an 

individual has a REP in the contents of his electronic pager, 

Courts have consistently allowed electronic pagers to be 

searched incident to lawful arrest. These decisions are based 

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, several 

courts have upheld the authority of law enforcement officers, 

under the SIA exception to the search warrant requirement, to 

search or retrieve information from an arrestee‘s pager in order 

to prevent its destruction as evidence. 

Some courts have applied that same rationale to cell 

phones discovered during a search incident to arrest, i.e., that 
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they may be searched for data that the phone already contains 

to include incoming and outgoing text messages and phone 

logs. Those Courts have distinguished data that is stored on 

the cell phone at the time of its seizure, which data may be 

searched, from that which is merely accessible from the cell 

phone (such as voice mail), which may not be searched under 

search incident to arrest authority. E.g., United States v. Finley,

477 F.2d 250 (5th Cir. 2007); United States v. Young, 278 Fed. 

Appx. 242, 245-46 (4th Cir. 2008)(per curiam); United States v. 

Murphy, 552 F.3d 405 (4th Cir. 2009); United States v. PinedaAreola, 2010 U.S. App. LEXIS 7685 (7th Cir. April 6, 2010).

Some lower (i.e., district) courts in other circuits have 

declined to follow this reasoning, however, and have held that 

searches of cell phones following the arrest of the phone‘s owner 

require probable cause and a warrant. See, e.g., United States v. 

Park, 2007 U.S. Dist. LEXIS 40596 (NDCA May 23, 2007); 

United States v. Wall, 2008 U.S. Dist. LEXIS 103058 (SDFL 

December 22, 2008). See also, United States v. Quintana, 594 F. 

Supp. 2d 1291, 1301 (M.D.FL 2009); United States v. McGhee,

2009 U.S. Dist. LEXIS 62427 (D. NE, July 21, 2009); United 

States v. Lasalle, 2007 U.S. Dist. LEXIS 34233 (D.HI 2007). 

The Supreme Court has not yet considered whether SIA 

authority extends to cell phones or other electronic storage 

devices. By analogy, it can be argued that you should be able to 

search devices such as electronic organizers, thumb drives, and 

Personal Digital Assistants/smart phones when they are in the 

possession of some whom you have lawfully arrested. There is 

yet no direct case law to support that proposition, but courts 

have suggested that while a search through a pager, or perhaps 

a cell phone, may be 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. 

The best practice in contemplating whether to examine 

the contents of electronic devices, including cell phones, seized 

under your SIA authority is, first, to consult your AUSA before 

doing so; second, if probable cause can be demonstrated that 
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the seized device contains evidence of a crime, obtain a search 

warrant rather than rely on search incident to arrest authority. 

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 

policy aimed at accomplishing the non-investigatory purposes of 

inventory searches. 

Neither the Supreme Court nor any of the Federal Circuit 

Courts have issued opinions concerning whether the data 

stored on a cell phone may be inventoried. The U.S. District 

Courts that have tackled the issue have all held that, while a 

cell phone may be seized incident to arrest and should certainly 

be a part of any inventory of property seized from an arrestee, 

an inventory of the digital contents of a cell phone is not a valid 

inventory search because it does not serve any of the approved 

purposes of a stationhouse inventory. To do so, therefore, will 

require either consent or independent probable cause that the 

cell phone contains evidence of a crime and a search warrant 

based on that probable cause. 

V. Preparing Warrants to Search and/or Seize Computers

Searches that target computers and data are potentially 

somewhat different from traditional searches. In most 

searches, you are looking for a particular physical item in a 
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particular location. Because computer files consist of units of 

digital information, known as ―bytes,‖ that can be stored in any 

digital medium and instantly moved or deleted, you may not 

always know precisely where particular computer files are 

stored or in what form. The data may be on the computer being 

searched, but electronically hidden from view. The filenames 

and suffixes may be anything the suspect wants them to be. 

The data may be instantly erased, modified, or transmitted to a 

confederate or remote storage devices. The same data may exist 

in identical form in many different places. Court cases 

recognize that computer records are extremely susceptible to 

tampering, concealment, and destruction. 

A. The Need for Pre-Search Information

It is always critical for the criminal investigator to have as 

much advanced knowledge as possible about an area in which a 

search warrant is to be executed. This applies equally, if not 

more so, to computer searches. At a minimum, prior to 

executing your search warrant, you should attempt to 

determine: 

What types of computers and operating systems is 

your suspect using?

What types of software does the suspect use? 

Is the computer connected to a network? If so, 

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?

Is the execution of the computer search warrant 

likely to have an adverse impact on the operation of 

a legitimate business, for example, the search of a 

computer at a doctor‘s office where patient health 

records are likely stored? 
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Gathering this information may involve an interview of 

the system administrator of the targeted network, of others who 

are familiar with the network, or possibly of a whistleblower or 

cooperating individual. This might be done in an undercover 

capacity. On-site visits (often undercover) may also reveal 

important information about the hardware involved. 

B. The Particularity Requirement as to Where to 

Search and For What

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. 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 

become very affordable, reliable, and an excellent choice for 

storing, moving, protecting and concealing data. 

Peripheral components, such as routers, printers, and 

scanners, often have small memory chips that may be a good 

source of evidence. Similarly, you may wish to seize a keyboard, 

monitor, cables or other devices during your search. If so, each 

item must be independently listed and its seizure justified. 
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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. Identifying the Objects of the Search

In most computer or data searches, the primary objective 

of the search is the data and not the computer and its 

attendant components. 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 – may be the objective of the search. That would be the 

case, for example, when searching for stolen computers 

(contraband or fruits of a crime). That might also apply to 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 
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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

In many, if not most, computer searches, you will want to 

remove the computer from the location listed in the search 

warrant and conduct your search and forensic analysis of its 

contents at a different location. If so, you must ask for and 

justify an off-site search in your search warrant affidavit and 

ensure that your search warrant includes the court‘s approval 

to do so. This requirement exists because seizing a computer 

can effectively close down a business, disable a computer 

network, or deny innocent persons the ability to conduct daily 

activities. It is important that you consider such factors and 

include sufficient information in your search warrant 

application to justify seizure of a computer for later, off-site 

forensic examination. 

In some instances, the desired data may 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 the sophistication and 

complexity of computer systems increases, it has become less 

likely that safe and meaningful on-scene computer searches can 

be conducted; therefore, off-site searches of computers are 

increasingly becoming the norm. As mentioned above, however, 

you must articulate in your search warrant affidavit facts and 

information to justify the removal and off-site search of 

computers, devices, or computer media. Some of the 

justifications are: 

Must search to determine media contents. You 

may often be unable to determine 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 (even wirelessly) because a command to 

the computer to be searched might be sent from 

any computer on the network. 
_______________ 

Searching and Seizing Computers 

447

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(b)

5 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 

that provide e-mail services (e.g. AOL, Yahoo, Hotmail, Google) 

where the storage is incidental to the transmission of the e-

 

5 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.‖
_______________ 

Searching and Seizing Computers 

448

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 a criminal investigation in the Eastern 

District of Virginia has stored electronic communications on 

internet 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. 

[Chart removed for compliance with Section 508 of the 

Rehabilitation Act of 1973, as amended by 29 U.S.C. § 794 (d).]

VI. Executing Warrants to Search and/or Seize 

Computers 

A. Technical Assistance During Execution of a Search 

Warrant

A computer forensics expert is essential not only to the 

operational planning for executing the warrant, but also to the 

execution of the warrant. Accordingly, you should give strong 

consideration to having a technical expert accompany the 

search team or, at a minimum, be available on immediate call. 

Such person might very well be a sworn criminal investigator; 

however, Title 18 U.S.C. § 3105 also permits non-law 

enforcement officers to aid in the execution of a warrant. That 

statute provides: 
_______________ 

Searching and Seizing Computers 

449

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. 

The best practice for a criminal investigator is to specify 

in the search warrant application the need for a computer 

forensics expert (especially if your expert is not a sworn officer) 

to be a part of the search team and, if possible, to name the 

person who will assist in the execution of the warrant. In short, 

except in all but the simplest cases, consult a forensics expert 

in planning the search, obtaining the warrant, and executing 

the search. 

B. Knock and Announce

The ―knock and announce‖ statute set forth at 18 U.S.C. 

§ 3109 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. 

This statute applies to all searches of residences, including 

when the objectives of the search include computers and data. 

 

 The rule is not absolute, however. In Richards v. 

Wisconsin, 520 U.S. 385 (1997), the Supreme Court held that a 

law enforcement officer who executes a search warrant may 

dispense with the knock-and-announce requirement if he or she 

has -

a reasonable suspicion that knocking and 

announcing their presence, under the particular 

circumstances, would be dangerous or futile, or 
_______________ 

Searching and Seizing Computers 

450

that it would inhibit the effective investigation of 

the crime by, for example, allowing the destruction 

of evidence. 

By knocking and announcing one‘s official presence and 

authority, a law enforcement officer may provide a criminal 

target with the opportunity to conceal or destroy electronic 

evidence. Technically adept suspects may ―hot wire‖ their 

computers with software that, with a few keystrokes by the 

owner or operator, may quickly delete or obliterate evidence. In 

many cases, this may involve a ―hard deletion‖ rendering the 

data unrecoverable. Even merely turning off the computer may 

result in the destruction, alteration or encryption of data that 

the user was working on at the time of the shut down. 

It is therefore essential that you acquire as much 

information as possible in advance of your search about your 

criminal suspect and the computer hardware and software that 

will be the subject of your search. When you have reason to 

believe that knocking and announcing your presence would 

result in the destruction of any evidence being sought, 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 no-knock search when executing the 

search, even if you do not have a no-knock warrant.

For example, while approaching a residence with a 

warrant to search for data, you develop reasonable suspicion 

that your presence has been detected and that a person or 

persons inside will destroy (delete) the data. Such facts may 

excuse compliance with the knock and announce statute. If you 

do so, be prepared to articulate the basis for your decision to 

dispense with the knock and announce rule. 
_______________ 

Searching and Seizing Computers 

451

C. Time Frames Governing Retention of Seized 

Computers

The forensic examination of the contents of a computer 

that has been lawfully seized pursuant to a search warrant may 

take months to complete because computers can store 

enormous amounts of data. Neither the Federal Rules of 

Criminal Procedure nor the Fourth Amendment imposes any 

specific limitation on the time period for such forensic 

examination to be completed. Under FRCP 41(e)(2)(B), a search 

warrant may authorize not only the seizure of electronic storage 

media or the seizure and copying of electronically stored 

information, but also a later review of the media or information 

consistent with the warrant. Thus, any court-imposed time 

limitation as to the execution of the warrant refers to the 

seizure or on-site copying of the media or information, but not 

to any later off-site copying or review. 

Ordinarily, then, unless otherwise ordered by the Court, 

you may retain a seized computer and examine its contents in a 

careful and deliberate manner without legal restrictions, subject 

only to Rule 41(g)‘s provision that a ―person aggrieved‖ by the 

seizure of property may bring a motion for the return of that 

property. If the targeted computer serves as storage of data 

necessary to operate a legitimate business, medical facility, or 

the like, the agent should be prepared to copy the data from the 

targeted computer, rather than resorting to seizure and 

retention of that computer, if the latter action would 

unnecessarily inhibit the operation of the underlying enterprise. 

VII. 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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Searching and Seizing Computers 

452

NOTES
_______________ 

5th and 6th Amendments 

453

Chapter Thirteen 

The Fifth and Sixth Amendments 

I. INTRODUCTION................................................................. 454

II. VOLUNTARY STATEMENTS ..................................................454

A. Voluntariness.................................................................... 454

B. Interrogations ................................................................... 455

C. Involuntary Confessions .................................................... 456

D. Incriminating Statements .................................................. 457

III. MIRANDA WARNINGS..........................................................458

A. Generally .......................................................................... 458

B. When Required ................................................................. 459

1. Known Law Enforcement Officer .................................. 459

2. Interrogation ................................................................ 459

3. Custody ....................................................................... 460

IV. VALID MIRANDA WAIVER ....................................................463

A. Generally .......................................................................... 463

1. Voluntary ..................................................................... 463

2. Intelligent and Knowing ............................................... 464

3. Affirmative Waiver ........................................................ 464

B. Form of Waiver .................................................................. 465

C. Stale Warnings .................................................................. 465

D. Correcting Miranda Violations ........................................... 466

1. Unintentional Violations .............................................. 466

2. Intentional Violations ................................................... 466

E. Exceptions ........................................................................ 466

1. Public Safety ................................................................ 466

2. Routine Booking Questions .......................................... 467

V. INVOCATION OF MIRANDA RIGHTS........................................467

A. Generally .......................................................................... 467

1. Right to Silence ............................................................ 468

2. Right to Counsel .......................................................... 468

B. Not Offense Specific .......................................................... 469

C. Subject Re-initiates Contact .............................................. 469

D. Ambiguous Requests ......................................................... 470

VI. NON-CUSTODIAL INTERROGATIONS ......................................471

A. Subpoenas to Testify ......................................................... 471

B. Immunity .......................................................................... 471

1. Use Immunity .............................................................. 472

2. Transactional Immunity ............................................... 472
_______________ 

5th and 6th Amendments

454

C. No Right to Commit Perjury .............................................. 472

D. Documents Pursuant to Subpoenas .................................. 472

E. ―Collective Entities‖ ........................................................... 473

F. Third Parties ..................................................................... 473

G. Internal Government Investigations .................................. 473

H. Deportation Proceedings and Foreign Prosecutions ........... 474

VII. SIXTH AMENDMENT COUNSEL .............................................474

A. Generally .......................................................................... 474

B. Critical Stages ................................................................... 475

1. Interrogation ................................................................ 475

2. Line-ups ...................................................................... 475

C. Attachment ....................................................................... 476

D. Offense Specific ................................................................. 476

E. Waiver and Invocation ....................................................... 477

1. Waiver ......................................................................... 477

2. Undercover Agents-Informants .................................... 477

3. Invoking the Right ....................................................... 478

F. The McDade Amendment .................................................. 479

VIII. DUE PROCESS AND IDENTIFICATION PROCEDURES ..................480

A. Generally .......................................................................... 480

B. Types of Identification Procedures ..................................... 480

1. Line-ups ...................................................................... 480

2. Photo Arrays-Displays.................................................. 481

3. Show-ups .................................................................... 482

***** 

I. Introduction 

As a law enforcement officer, your questioning of suspects 

will often yield critical evidence for their criminal prosecution. 

It is important that you abide by Constitutional standards so 

that a defendant‘s statements will be admissible at trial. 

Whether 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. 

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.‖ 
_______________ 

5th and 6th Amendments 

455

For a confession or admission of a suspect to be used against 

him at his criminal trial, it 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 or induced to incriminate himself. A statement 

can be suppressed if a court determines it was involuntarily 

given.

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 police-created circumstances that led 

up to the statement. If a suspect‘s confession is not voluntarily 

made- that is, not the product of his free choice- it cannot be 

used against him. 

The analysis of the admissibility of a statement takes into 

consideration the ―totality of all the surrounding circumstances‖

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, 

and a statement 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 

for you 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 with the criminal justice system; and the advisement 

of constitutional rights.

The Supreme Court has stated that ―coercive police 

activity‖ must be present in order to find that a confession is 
_______________ 

5th and 6th Amendments

456

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, you 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, as 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. New York, 360 U.S. 315 

(1959), a suspect in a killing was a foreign-born man, age 25, 

with no previous criminal 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 

 

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

companion book, Legal Division Reference Book.
_______________ 

5th and 6th Amendments 

457

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. 

The officer played up the terrible effect this would have on his 

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 minimize the use of 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 

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 
_______________ 

5th and 6th Amendments

458

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 advising him of his specific rights and obtaining his 

voluntary waiver of those rights. Failure to follow this 

―procedural safeguard,‖ even for statements that are otherwise 

voluntary, can lead to suppression. Therefore, prior to 

custodial questioning, a suspect must be advised of 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 

these rights and agree to answer questions or make a 

statement, if he does so voluntarily, knowingly, and 

intelligently. Only then can his statement be admitted against 

him.
_______________ 

5th and 6th Amendments 

459

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 about 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 testimony 

that could be used against the suspect. 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 
_______________ 

5th and 6th Amendments

460

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 the officer should know are likely to 

elicit an incriminating response from the suspect. For example, 

police engaging in a lengthy monologue in the presence of an incustody suspect about the evidence in the case might be 

considered an interrogation.

Spontaneous or volunteered statements are not 

considered the product of ―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 are 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 his

freedom of movement to the degree associated with a formal 

arrest, even when there is no arrest. California v. Beheler. For 
_______________ 

5th and 6th Amendments 

461

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 a ―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 with a Terry stop. Generally, officers are 

not required to advise a suspect of the Miranda warnings to 

question him during an investigative detention, even though he 

is not free to leave.

The decision on whether to give Miranda warnings when 

no formal arrest has occurred is not always clear, but usually it 

is not required. If you create a situation that would appear 

truly arrest-like to a reasonable person, however, Miranda

warnings should be given to avoid the risk of losing the 

statement. 

If police wish to question a juvenile about a crime, then 

they must consider his age in determining whether or not he is 

in custody. The Supreme Court has held that a 13 year old 

seventh grade student who was not under arrest but who was 

questioned about a break-in by police in a conference room at 

his school was in custody for purposes of Miranda. The 

relevant inquiry is whether a reasonable person of that age

would feel as though he is under arrest given all of the 

circumstances of the interrogation even if an adult might not. 

In situations that verge on being custodial, courts are less 

likely to require Miranda procedures 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; or

there was no physical restraint that could cause a reasonable 

person to perceive that he is under arrest. The following 
_______________ 

5th and 6th Amendments

462

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 custodial. 

Search Warrants. In general, detaining the 

occupant of a home during the execution of a 

search warrant is not considered custodial for 

Miranda purposes. Still, if agents closely guard an 

individual during the operation, a court may 

consider it to be custodial, even if it would not be 

considered an arrest 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 does not create 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 
_______________ 

5th and 6th Amendments 

463

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 

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 an 

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 may proceed. 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 

the statement). 
_______________ 

5th and 6th Amendments

464

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 give complete 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 

warnings directly from a Miranda rights card or agency form, if 

possible, to avoid errors and 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 

rights were 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. Specific evidence of the intent to 

waive must be demonstrated. Generally, neither the suspect‘s 

silence, nor his subsequent confession, will alone cause the 

courts to presume there is a waiver. However, the lack of a 

clearly expressed and unambiguous assertion of rights, coupled 

with an uncoerced statement by the suspect, may allow the 

courts to find that the giving of the statement was an implicit 

waiver of rights. While an express waiver from the suspect is 

not necessarily required, the best and most prudent police 
_______________ 

5th and 6th Amendments 

465

practice would be to obtain an express waiver before proceeding 

with questioning. 

B. Form of Waiver

Miranda does not require police to advise a suspect that 

he can stop answering questions at any time, nor remind him of 

that fact after a waiver is obtained. Also, police are not required 

to tell a suspect what the topics of the interrogation will be. 

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 

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. 
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5th and 6th Amendments

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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 Miranda warnings 

are given and a voluntary waiver obtained, they will be 

admissible at trial. In general, the courts will only exclude 

those statements given before the warnings and waiver. 

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 
_______________ 

5th and 6th Amendments 

467

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 or the 

safety of the suspect. A pre-Miranda 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 

The ―routine booking question‖ exception to Miranda

allows questioning 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 

suspect 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 
_______________ 

5th and 6th Amendments

468

custodial interrogation does not work. Unless the interrogation 

is fairly imminent, courts will generally not consider the 

suspect‘s rights to be invoked. Therefore, the Miranda

advisement could be read, and a waiver obtained, prior to when 

questioning actually begins.

When a suspect does properly invoke, the procedure to 

follow differs in some respects, depending on the right asserted. 

If the suspect asserts both rights, the procedure regarding the 

right to counsel will take precedence. 

1. Right to Silence 

If a suspect asserts the right to silence, questioning must 

immediately stop, but officers may later attempt to re-approach 

the suspect after a reasonable ―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 custodial interrogation unless he 

himself re-initiates the contact, or counsel is actually present. 

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 warnings again, the defendant 

this time waived his rights and made incriminating statements. 

Since the defendant had exercised his right to have counsel the 

day before, his waiver of that right the next day was not valid. 

If a suspect indicates that he wishes to have an attorney, the 

interrogation must cease. Police may not try to approach and 

question him again without his attorney being present. 
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5th and 6th Amendments 

469

The prohibition on police re-approaching a suspect who 

has previously invoked his Miranda right to counsel exists for 

as long as the suspect remains in custody. In Maryland v. 

Shatzer, the Court announced the rule that a break in the 

suspect‘s custody of 14 days or more ends the prohibition. As 

an example of the rule‘s application, consider a suspect who 

has invoked his Miranda right to counsel and is released. If he 

is out of custody for 14 days or more before being taken back 

into Miranda custody, you would not be prohibited from reapproaching him for questioning and obtaining a valid waiver of 

his right to counsel. If the break in custody has been less than 

14 days, however, the prohibition would remain. 

B. Not Offense Specific

When a suspect invokes the right to counsel or silence, 

interrogation about any other crimes must also stop. 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. 

Assertion of the right to counsel applies to any and all crimes 

and to questions by any known law enforcement officer. This 

means that prior to interrogating any custodial suspect, you 

should determine whether any other officers have attempted to 

question him and whether he invoked his rights, and then 

proceed accordingly. 

C. Suspect Re-initiates Contact

Interrogation may be resumed after a suspect asserts his 

right to counsel when the suspect re-initiates the 

communication. While officers 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 having asserted his right to 
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5th and 6th Amendments

470

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

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 the time warnings 

are given cannot be seen as either an invocation or 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, you are 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, you do not have to 

stop questioning the suspect. 
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5th and 6th Amendments 

471

VI. Self-Incrimination Outside of Custodial Interrogation 

A person may assert the Fifth Amendment privilege 

against compelled self-incrimination in any proceeding, whether 

civil, criminal, administrative, investigatory or adjudicatory. 

The privilege permits an individual to refuse to make any 

disclosures that he 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 all 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 another 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. Alternatively, he may assert the privilege based on 

individual questions asked of him at the proceeding. If it is 

determined he has no Fifth Amendment privilege, the witness 

will be required by the court to testify, or face punishment for 

contempt. 

B. Immunity

Remember that the Fifth Amendment provides that no 

person may be compelled to be a witness against himself 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 he 

may be required to admit to criminal activity. There are two 

kinds of immunity. 
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5th and 6th Amendments

472

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 entirely independent of the defendant‘s compelled 

testimony. For example, the government may use evidence it 

obtained against the defendant before the defendant testified 

under ―use immunity‖.

2. Transactional Immunity 

―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, requiring the production of a document – even 

one that is incriminating – is not subject to the privilege against 

self-incrimination on the basis of its contents. Although the 

contents may not be privileged, the act of producing a 

document may be. Compliance with a subpoena can be seen as 

an implicit admission the papers exist, are controlled by the 

holder, and are authentic. It also indicates the holder‘s belief 
_______________ 

5th and 6th Amendments 

473

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, when 

the act of producing documents has these implications, the 

privilege applies and production may be refused. United States 

v. Doe (Doe I). 

E. ―Collective Entities‖

The Fifth Amendment privilege applies only to natural 

individuals. Corporations and other collective entities are not 

protected by the Fifth Amendment. Therefore, the production of 

subpoenaed corporate records is not privileged and cannot be 

refused on Fifth Amendment grounds. 

A record custodian‘s act is legally the act of the 

corporation, not the individual. While a custodian of corporate 

records may not resist a subpoena on the ground that the act of 

production would incriminate him personally, the Government 

cannot use the fact that the custodian provided the documents 

as evidence against the custodian. 

F. Third Parties

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. 

Therefore, the accountant cannot assert a Fifth Amendment 

privilege to refuse production of client documents that might 

incriminate his client.

G. Internal Government Investigations

The government may not threaten to fire a government 

employee in order to obtain incriminating testimony and then 

use that evidence against the employee to get a conviction. 

Likewise, a government employee may not be terminated from 

government employment only for invoking and refusing to waive 
_______________ 

5th and 6th Amendments

474

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. 

VII. The Sixth Amendment Right to Counsel 

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. 
_______________ 

5th and 6th Amendments 

475

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 

limited 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 defendant 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 

Live identification procedures thrust the accused into a 

direct confrontation with his adversary. As a consequence, the 

courts consider line-ups to be a critical stage in the 

proceedings. 

Whenever the defendant is placed in a line-up for 

identification for a charged offense, and the right to counsel has 

attached, the defendant must be afforded the opportunity to 

have his counsel present during the line-up. Any such line-up 

that includes the defendant 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. 
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5th and 6th Amendments

476

Identification through a photo array that includes the 

accused does not involve a confrontation, and therefore is not 

considered a critical stage of the adversarial proceedings. The 

defendant 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 defendant‘s right to 

have counsel present at all critical stages has then attached. 

D. Offense Specific

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 offense(s).

However, the accused may be questioned about other, 

uncharged offenses, since the right has not attached as to those 

crimes. In Texas v. Cobb, the defendant committed a double 

murder while in the process of burglarizing a house. The 

defendant was formally charged with burglary, retained 

counsel, and was out on bond when he was arrested again, this 
_______________ 

5th and 6th Amendments 

477

time for the murders. The Court said that the Sixth 

Amendment right to counsel did not bar police from 

interrogating the defendant about the murders, despite the fact 

that they arose from the same incident. A defendant‘s 

statements regarding offenses for which the Sixth Amendment 

right to counsel has not attached are admissible, even if the 

right has already attached for other pending charges. 

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 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. Note, however, that a suspect‘s 

waiver of the Miranda right to counsel while in custody is not a 

waiver of his Sixth Amendment right to counsel, unless the 

Sixth Amendment right had already attached at the time he 

waived.

2. Undercover Agents and Informants 

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 requiring a proper waiver. However, 

covert agents who merely listen to the defendant, 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. 
_______________ 

5th and 6th Amendments

478

3. Invoking the Right 

The Sixth Amendment does not prohibit an officer from 

interrogating a defendant about charged offenses, so long as the 

officer either: (1) advises the defendant of his Sixth Amendment 

right to have counsel present and obtains a waiver from him, or 

(2) permits the defendant‘s attorney to be present during the 

interrogation. The defendant may choose to invoke his right to 

counsel, and/or the court may appoint an attorney to represent 

him on the charged offenses. The effect of a defendant‘s 

invocation of the right to counsel will depend upon his custodial 

status.

As noted in the discussion of the Miranda rules, a 

defendant in custody who invokes his right to counsel may not 

be re-approached by a known law enforcement officer to 

question him about any charged or uncharged offense without 

his counsel being present. The Miranda rules cease to apply 

once a suspect is released from custody. Since the Sixth 

Amendment right to counsel attached when the defendant was 

charged, that right would continue to apply to an officer‘s 

attempt to question the defendant who is not in custody 

concerning the pending charged offenses. 

Unlike the Miranda rule however, a defendant‘s prior 

request for an attorney will not automatically prevent you from 

approaching or initiating contact with a defendant who is not 

in custody to attempt to obtain a waiver of the Sixth 

Amendment right to counsel. In cases where you seek to 

question a defendant about a charged offense after he has been 

previously appointed counsel [or requested an attorney in other 

settings (court proceedings, line-ups, etc.)], you may still 

approach the defendant. If the defendant voluntarily waives his 

Sixth Amendment right to counsel after warnings, questioning 

can proceed without counsel being present. However, if the 

defendant affirmatively requests counsel for the questioning, do 

not question the defendant without counsel being present. Reapproaching the defendant in such circumstances may be 

deemed to be badgering and call to question the voluntariness 

of any waiver or statement obtained thereafter. On the other 
_______________ 

5th and 6th Amendments 

479

hand, if the invoking defendant initiates the contact with you, a 

valid waiver will permit you to question the defendant about the 

pending charged offenses without counsel being present. (But 

see the McDade Amendment in Section F below for possible 

ethical issues involved in speaking with persons known to be 

represented by an attorney.) 

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. 

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. Unlike a 

constitutional right, this ethical requirement cannot be waived 

by the represented person, even where he initiates 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. 
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5th and 6th Amendments

480

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 during 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. 

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 suspect cannot invoke his Fifth Amendment privilege 

against self-incrimination to refuse to participate in a line-up 
_______________ 

5th and 6th Amendments 

481

since it is ―non-testimonial‖ in nature. However, the due 

process clause guarantees an accused that the procedures used 

in a line-up will be fair. 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). Similarly, 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. While a line-up of 

―clones‖ is not required, these examples of unduly suggestive 

line-ups would likely violate the suspect‘s due process rights.

2. Photo Arrays/Displays 

To determine whether a photo display is impermissibly 

suggestive under the due process clause, 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. 

(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‘ 

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 
_______________ 

5th and 6th Amendments

482

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 attention-drawing or suggestive 

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. Show-ups performed immediately after a crime are 

a reasonable way to further fair and effective law-enforcement 

as they allow identification before the suspect has altered his 

appearance, and 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. 
_______________ 

Use of Force – Legal Aspects 

483

Chapter Fourteen 

Use of Force - Legal Aspects 

I. INTRODUCTION................................................................. 484

A. Non-Deadly Force and Reasonableness ............................. 484

B. No ―Perfect Answer‖ when Using Force .............................. 485

C. Factors in Determining Excessive Force ............................ 485

D. Handcuffing and Pointing Weapons during Terry Stops .... 487

1. Handcuffs Not Automatically an Arrest ....................... 487

2. Pointing a Weapon Not Automatically an Arrest ........... 487

3. ―Officer Safety‖ as a Reason ......................................... 488

II. THE USE OF DEADLY FORCE...............................................488

A. Definitions ........................................................................ 488

1. Deadly Force ................................................................ 488

2. Serious Physical Injury ................................................ 488

B. Use of Deadly Force - Objective Reasonableness ............... 489

C. Other Aspects of Objective Reasonableness ....................... 491

1. Officer Need Not ―Fear For His Life‖.............................. 491

2. Warning Shots Are Not Explicitly Prohibited ................ 492

3. The Offense Can Be a Felony or Misdemeanor ............. 492

4. Verbal Warnings Are Not Always Required ................... 492

5. No Need to Exhaust All Lesser Forms of Force ............. 492

6. No Duty to Retreat ....................................................... 492

D. Examples .......................................................................... 493

1. Unarmed, Handcuffed Suspect .................................... 493

2. Fleeing, Dangerous Subject Armed With a Knife .......... 494

3. Unarmed Robbery Suspect Who Reached Into His Coat 495

4. Suspect Attacks with a Magnetic Key Holder ............... 496

5. Unarmed, Fleeing Burglar ............................................ 496

E. Agency Policy Restrictions ................................................. 498

III. STRIKING INSTRUMENTS AND CHEMICAL SPRAYS....................498

A. Striking Instruments - Generally ....................................... 498

B. The Rules Outlined in Graham Apply ................................ 498

C. Gratuitous Blows .............................................................. 498

D. Examples .......................................................................... 499

1. Strikes Handcuffed Suspect with Nightstick ................ 499

2. Strikes Non-Resisting Suspect with Flashlight ............. 499

3. Strikes Armed Robbery Arrestee with Flashlight .......... 500

4. Strikes Arrestee with Flashlight and Nightstick ............ 501
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484

E. Chemical Sprays - Generally ............................................. 502

1. When Chemical Sprays Are Excessive .......................... 502

2. When Chemical Sprays Are Reasonable ....................... 503

F. Examples .......................................................................... 504

1. Use of Chemical Spray Reasonable .............................. 504

2. Use of Chemical Spray Unreasonable ........................... 507

IV. QUALIFIED IMMUNITY ........................................................508

A. Defining Qualified Immunity ............................................. 508

B. The Rationale Behind Qualified Immunity ......................... 509

C. When Officers are Entitled to Qualified Immunity ............. 509

D. Not a ―Good Faith‖ Defense ............................................... 509

E. Analyzing Claims of Qualified Immunity............................ 509

1. Did a Constitutional Violation Occur? .......................... 510

2. Was the Right ―Clearly Established‖? ........................... 510

F. Reasonable Mistakes ......................................................... 511

G. Examples .......................................................................... 511

1. Reasonable but Mistaken Belief as to the Law .............. 511

2. Reasonable But Mistaken Belief as to the Facts ........... 512

***** 

I. Introduction

Perhaps no issue can impact on the personal and 

professional career of a law enforcement officer more 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 

 

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 

485

reasonableness under the Fourth Amendment is not capable of 

precise definition or mechanical application, so proper 

application requires careful attention to the facts and 

circumstances of each particular case. 

B. 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, 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 

the officer‘s 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:
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Use of Force – Legal Aspects

486

Severity of the crime. 

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).
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Use of Force – Legal Aspects 

487

D. Handcuffing and Pointing Weapons during Terry

Stops

1. Using Handcuffs Does Not Automatically 

Convert a Seizure into an Arrest 

Because the facts may justify freezing a potentially 

dangerous situation for purposes of safety, 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 officers

reasonably believe such action is necessary for their 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).
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Use of Force – Legal Aspects

488

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:

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. 

NOT 

I handcuffed and frisked the suspect for “officer safety.”

II. The Use of Deadly Force 

A. Definitions

The following definitions are useful in explaining the rules 

regarding ―deadly force.‖

1. Deadly Force 

―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 
_______________ 

Use of Force – Legal Aspects 

489

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 made against law enforcement 

for using excessive force—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 Court 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 

rendered a quadriplegic. He filed a civil rights lawsuit alleging 

the officer used 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 were 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 
_______________ 

Use of Force – Legal Aspects

490

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 risk, but also the 

relative culpability of the suspect in relation to the 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, an officer 

may not use deadly force to prevent the escape of an unarmed 

and non-dangerous fleeing suspect. By way of example only, the 

Court then laid out one set of circumstances under which police 

officers 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 
_______________ 

Use of Force – Legal Aspects 

491

necessary to prevent escape, and, where feasible, 

some warning has been given. (emphasis added) 

In Scott, the Supreme Court said that the necessity to act 

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 possessed 

by the officer when deadly force was used, 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. No Need to “Fear for Your Life” Before Using 

Deadly Force 

Objective reasonableness does not require that officers be 

in ―fear for their 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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Use of Force – Legal Aspects

492

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 and the Coast Guard (shot across the bow). 

3. The Offense Can Be a Felony or Misdemeanor 

Whether or not an offense is a felony or misdemeanor is 

not determinative as to whether an officer can use deadly force. 

The focus as to what force is appropriate is on the threat of 

violence to the officer or others. An officer may encounter 

violent misdemeanor assaults involving weapons, as well as 

non-violent felonies like financial fraud that may well require 

the use of deadly force.

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 will help justify the reasonableness of the force used. A 

warning is not required before every use of deadly force, and 

nothing mandates that the warning be verbal. 

5. No Need to Exhaust All Lesser Forms of Force 

before Using Deadly Force 

An officer is 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. 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, law enforcement officers are under no legal duty to 
_______________ 

Use of Force – Legal Aspects 

493

retreat before using deadly force. Of course, there is no rule 

preventing officers from retreating should they consider it best 

to do so. There may be sound tactical reasons for disengaging 

and retreating to cover.

[Chart removed for compliance with Section 508 of the 

Rehabilitation Act of 1973, as amended by 29 U.S.C. § 794 (d).]

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 

 

2 Cert. denied means that the Supreme Court refused to consider an appeal 

of the lower court‘s decision.
_______________ 

Use of Force – Legal Aspects

494

main hallway toward the front door, away from the break room. 

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 
_______________ 

Use of Force – Legal Aspects 

495

assault, Fuhr reasonably believed he was dealing with an armed 

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 an officer 

believes that a suspect‘s actions places the officer, the officer‘s

partner, or those in the immediate vicinity in imminent danger 

of death or serious bodily injury, the officer may reasonably use 

deadly force. 
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Use of Force – Legal Aspects

496

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 there remained questions as to whether 

the use of deadly force in this situation was reasonable. First, 

Wynalda had no particular reason to believe Ellis was armed. 
_______________ 

Use of Force – Legal Aspects 

497

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,

they do not give rise to a reasonable belief that Ellis presented a 

threat of serious harm to Wynalda or others. 
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Use of Force – Legal Aspects

498

E. Agency Policy Restrictions

The Fourth Amendment sets a minimum standard for the 

use of deadly force. Agency policies on use of force often 

intentionally restrict what would otherwise be permitted under 

the Constitution. Thus, it is possible to lawfully use deadly 

force in accordance with Constitutional standards, yet still 

violate agency policy. Policy violations may result in 

administrative discipline. However, while agency policies are 

relevant to the analysis of constitutionally excessive use of force

claims, they do not automatically establish civil liability. The 

courts will use the standard of objective reasonableness 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, an officer‘s use of a 

striking instrument must be objectively reasonable based upon 

the totality of the circumstances known to officer at the time of 

the incident. Whether the 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 the officer 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. 

Once a suspect has been restrained and is no longer resisting, 

any gratuitous blows to the suspect would generally be 
_______________ 

Use of Force – Legal Aspects 

499

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.‖

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. 
_______________ 

Use of Force – Legal Aspects

500

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 lay 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 

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 
_______________ 

Use of Force – Legal Aspects 

501

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:

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 
_______________ 

Use of Force – Legal Aspects

502

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 spray‖ 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 protocol 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: 

(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. 
_______________ 

Use of Force – Legal Aspects 

503

―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: 

(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, 
_______________ 

Use of Force – Legal Aspects

504

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 

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 
_______________ 

Use of Force – Legal Aspects 

505

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 

(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 
_______________ 

Use of Force – Legal Aspects

506

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, 

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. 
_______________ 

Use of Force – Legal Aspects 

507

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. 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 

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) 
_______________ 

Use of Force – Legal Aspects

508

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 

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. 
_______________ 

Use of Force – Legal Aspects 

509

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. 

E. Analyzing Claims of Qualified Immunity

In deciding whether to grant qualified immunity, courts 

use a two-part analysis.
_______________ 

Use of Force – Legal Aspects

510

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, 526 U.S. 

603 (1999) 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. 

In Pearson v. Callahan, 129 S. Ct. 808 (2009), the 

Supreme Court held that either prong of the qualified immunity 

analysis may be addressed first. The judges of the district 

courts and the courts of appeals are permitted to exercise their 
_______________ 

Use of Force – Legal Aspects 

511

sound discretion in deciding which of the two prongs of the 

qualified immunity analysis should be addressed first in light of 

the circumstances in the particular case at hand. So, now, 

either of the two questions may be asked first. 

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. 
_______________ 

Use of Force – Legal Aspects

512

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 

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

18 U.S.C § 3559, 121 

18 U.S.C. § 1341 

mail fraud, 169 

venue, 181 

18 U.S.C. § 1343 

wire fraud, 173 

venue, 181 

18 U.S.C. § 2(a) 

aiding and abetting, 32 

18 U.S.C. § 2(b) 

causing a crime, 33 

18 U.S.C. § 2311, 177 

value, 177 

18 U.S.C. § 2314, 175 

counterfeit securities, 179 

interstate transport of stolen property, 175 

national stolen property act 

venue, 181 

national stolen property act, 175 

travel fraud, 178 

venue, 181 

18 U.S.C. § 241, 22, 402 

Conspiracy Against Civil Rights, 22 

18 U.S.C. § 242, 404 

18 U.S.C. § 3 

accessory after the fact, 33 

18 U.S.C. § 3105, 95 

computers, 448 

18 U.S.C. § 3109 

knock and announce 

computers, 449 

18 U.S.C. § 3146 

bail jumping, 233 

18 U.S.C. § 3282

statute of limitations, 30 

18 U.S.C. § 371, 22 

conspiracy, 22 

18 U.S.C. § 4 

misprision of a felony, 34 

18 U.S.C. § 530B 

McDade amendment, 479 

18 U.S.C. § 641, 159 

18 U.S.C. § 7 

special maritime and territorial 

jurisdiction, 6 

18 U.S.C. §641 

conversion of government property, 163 

embezzlement of government property, 

161

receipt of stolen government property, 164 

theft of government property, 159, 160 

felony, 160 

misdemeanor, 160 

18U.S.C. § 3282

statute of limitations, 266 

2

21 U.S.C. § 812, 145 

controlled substances 

schedules, 145 

21 U.S.C. § 841, 147 

penalty, 148 

21 U.S.C. § 844, 146 

penalty, 148 

21 U.S.C. § 846, 22 

drug conspiracy, 22 

4

42 U.S.C. § 1983, 407 

A

abandoned government 

property, 161 

absolute immunity, 413 

Federal Tort Claims Act, 420 

FTCA, 420 

accessory after the fact 

18 U.S.C. § 3, 33 

actual possession 

controlled substances, 147 

admissible evidence, 68 

Federal Rules of Evidence, 68 

advocating imminent 

lawlessness 

freedom of speech, 43, 62, 63 

agency specific jurisdiction 

Bureau of Land Management, 8 

Bureau of Reclamation, 8 
_______________ 

Index

ii

DOD land management officers, 9 

land management, 8 

National Park Service, 8 

Tennessee Valley Authority, 8 

US Fish and Wildlife/National Marine 

Fisheries Service, 9 

USDA Forest Service, 8 

aiding and abetting 

18 U.S.C. § 2(b), 32 

amendments 

Constitution, 41 

Bill of Rights, 42 

bail, 51 

confront witnesses, 50 

double jeopardy, 47 

due process of law, 49 

freedom of assembly, 45 

freedom of religion, 42 

freedom of speech, 43, 53 

fundamental rights, 52 

grand jury indictment, 49 

informed of charges, 51 

right to counsel, 51 

searches and seizures, 46 

self-incrimination, 49 

speedy trial, 50 

venue, 51 

witness compulsory process, 50 

apparent authority 

computers, 431 

arguable probable cause, 410 

arraignment, 243 

waiver, 243 

arrest 

foreign nationals, 237 

consular access, 238 

mandatory notification, 238 

requested notification, 238 

juvenile, 240 

initial appearance, 240 

Miranda, 241 

members of congress, 239 

breach of peace, 240 

felony, 240 

pointing weapon, 487 

speedy trial act, 268 

arrest warrant, 226 

criminal complaint, 227 

indictment, 228 

information, 228 

assault 

civil liability, 419 

intentional tort, 419 

Assimilative Crimes Act, 117, 

121

jurisdiction, 121 

concurrent, 122 

exclusive, 122 

proprietary, 122 

assumption of risk 

negligent torts 

defenses, 425 

attempt to commit a crime, 121 

attorney-client privilege, 80, 81 

B

bagging and tagging 

evidence, 86 

bail 

Bill of Rights, 51 

conditional release, 232 

eighth amendment, 51 

pretrial release, 232 

bail jumping, 233 

18 U.S.C. § 3146, 233 

battery 

civil liability, 419 

intentional tort, 419 

best evidence rule, 88 

computer evidence, 97 

digital evidence, 97 

duplicate, 89 

original, 89 

bias, 76 

Bill of Rights, 42 

bail, 51 

confront witnesses, 50 

double jeopardy, 47 

due process of law, 49 

freedom of assembly, 45 

freedom of religion, 42 

establishment clause, 42 

free exercise clause, 43 

freedom of speech, 43, 53 

fundamental rights, 52 

grand jury indictment, 49 

informed of charges, 51 

right to counsel, 51 

searches and seizures, 46 

self-incrimination, 49 

speedy trial, 50 
_______________ 

Index 

iii

venue, 51 

witness compulsory process, 50 

Bivens 

analogy, 409 

civil action, 408 

common incidents, 409 

excessive force, 411 

failure to intervene, 412 

false affidavit, 410 

unlawful arrest, 409 

unlawful search, 409 

unlawful arrest 

arguable probable cause, 410 

unlawful search 

arguable probable cause, 410 

booking questions exception 

Miranda warnings, 467 

Brady 

discovery, 258, 260 

Bureau of Land Management 

jurisdiction, 8 

Bureau of Reclamation 

jurisdiction, 8 

business records 

foundations, 88 

hearsay, 91 

self-authentication, 90 

C

case in chief 

procedural stages 

criminal trial, 69 

causing a crime 

18 U.S.C. § 2(b), 33 

cell phones 

inventory search, 441 

certification 

scope of employment 

FTCA, 423 

chain of custody 

evidence, 86 

challenging a foundation 

evidence, 87 

change of venue, 265 

checks and balances, 40 

chemical sprays 

use of force, 498, 502 

examples, 504, 505, 506, 507, 508 

excessive, 502, 503 

reasonable, 503, 504 

circuit courts of appeals, 221 

en banc, 222 

judges, 224 

panels, 222 

circumstantial evidence, 73 

citation, 227, 257 

civil action 

Bivens, 408 

Bivens analogy, 409 

civil liability, 399, 401 

Bivens 

arguable probable cause, 410 

common incidents, 409 

excessive force, 411 

failure to intervene, 412 

false affidavit, 410 

unlawful arrest, 409 

unlawful search, 409 

intentional tort, 419, 421 

assault, 419 

battery, 419 

conversion, 419 

damage to land, 419 

damage to personal property, 419 

defenses, 425 

emotional distress, 419 

false arrest, 419 

false imprisonment, 419 

to property, 419 

to the person, 419 

negligent tort, 415, 420 

defenses, 425 

elements, 415 

state law, 415 

tort, 401 

civil rights, 400 

clear and present danger 

freedom of speech, 43, 63 

clearly established right 

qualified immunity, 414, 415, 510 

clergy-communicant privilege, 

80, 83 

closing argument 

procedural stages 

criminal trial, 70 

co-conspirator’s statement

hearsay, 93 

Code of Federal Regulations 

land management, 3 

collective entities 

right to remain silent, 473 
_______________ 

Index

iv

self-incrimination, 473 

common law, 118, 125 

comparitive negligence 

negligent torts 

defenses, 425 

computer evidence 

best evidence rule, 97 

foundations, 95, 451 

hearsay, 97 

computer searches, 427 

computers 

3

rd party possession 

REP, 430 

consent search, 431 

authority, 431 

implied consent, 434 

scope, 431 

third party consent, 432 

voluntary, 431 

inventory search, 441 

standardized policy, 441 

losing REP, 430 

exposure to public, 430 

plain view doctrine, 436 

right to be, 436 

private search, 428 

REP, 429 

3

rd party possession, 430 

losing, 430 

exposure to public, 430 

stolen, 430 

search 

exigent circumstances, 435 

search incident to arrest, 439 

search warrant, 441 

execution, 448 

who, 448 

independent component doctrine, 443 

knock and announce, 449 

multiple warrants, 447 

scope, 443, 444 

systems, 442 

time limitations, 451 

within the district, 447 

stolen 

REP, 430 

concurrent jurisdiction, 122 

land management, 5 

conditional release 

pretrial release, 232 

confront witnesses 

Bill of Rights, 50 

consent 

defenses 

intentional torts, 425 

consent search 

authority 

computers, 431 

computers, 431 

authority, 431 

scope, 431 

voluntary, 431 

implied consent 

computers, 434 

third party 

computers, 432 

voluntary 

computers, 431 

conspiracy, 21 

18 U.S.C. § 241 

elements, 402, 403 

18 U.S.C. § 371, 22 

doctrine of merger, 28 

elements, 23 

complete, 24 

knowledge and intent, 25 

overt act, 27 

the agreement, 25 

two or more persons, 24 

unlawful objective, 26 

late joiner, 29 

penalty, 23 

Pinkerton Theory, 28 

statute of limitations 

18 U.S.C. § 3282, 30 

venue, 31 

withdrawal, 29 

conspiracy against rights 

18 U.S.C. § 241 

elements, 402 

Constitution, 37 

amendments, 41 

Bill of Rights, 42 

bail, 51 

confront witnesses, 50 

double jeopardy, 47 

due process of law, 49 

freedom of assembly, 45 

freedom of religion, 42 

freedom of speech, 43, 53 

fundamental rights, 52 

grand jury indictment, 49 
_______________ 

Index 

v

informed of charges, 51 

right to counsel, 51 

searches and seizures, 46 

self-incrimination, 49 

speedy trial, 50 

venue, 51 

witness compulsory process, 50 

Eighth, 51 

Fifth, 47 

First, 42, 53 

Fourteenth, 52 

Fourth, 46 

Sixth, 50 

checks and balances, 40 

executive branch, 40 

judicial branch, 40 

constitutional tort, 406 

scope of employment, 424 

FTCA, 424 

constructive possession 

controlled substances, 147 

contradiction 

impeachment, 77 

contributory negligence 

negligent torts 

defenses, 425 

controlled substances 

21 U.S.C. § 812, 145 

21 U.S.C. § 841, 147 

21 U.S.C. § 844, 146 

actual possession, 147 

constructive possession, 147 

distribution, 147 

intent to distribute, 148 

manufacture, 147 

penalty, 148 

possession, 146 

unlawful, 146 

schedules, 145 

conversion 

civil liability, 419 

intentional tort, 419 

conversion of government 

property, 163 

counsel 

right to 

Sixth Amendment, 51 

counterfeit securities 

intent to defraud, 180 

interstate or foreign commerce, 180 

knowledge, 181 

court documents 

arrest warrant, 226 

criminal complaint, 227 

indictment, 228 

information, 228 

citation, 227, 257 

criminal complaint, 224, 256 

initial appearance, 227 

indictment, 225, 256 

information, 225, 256, 257 

summons, 226 

initial appearance, 228 

ticket, 227, 257 

credibility 

witness, 75 

bias, 76 

contradiction, 77 

impeachment, 75 

motive to lie, 77 

physical or mental incapacity, 77 

prior conviction, 78 

prior inconsistent statement, 77 

specific instances of untruthfulness, 77 

crime 

definition, 401 

criminal act, 117, 118, 120 

criminal attempt, 121 

criminal complaint, 224, 256 

arrest warrant, 227 

initial appearance, 227 

criminal law, 117 

act, 117, 118, 120 

common law, 118, 125 

elements, 117, 118, 120 

felony, 117, 121 

intent, 118, 120 

jurisdiction, 117, 121, 122 

knowlingly, 120 

misdemeanor, 117, 121

motive, 120 

penalty, 120, 128, 129 

statutory law, 117, 118 

criminal trial 

procedural stages, 68 

case in chief, 69 

closing argument, 70 

defense case, 69 

jury instructions, 70 

opening statements, 69 

rebuttal case, 69 

sentencing, 70 
_______________ 

Index

vi

suppression motion, 68 

voir dire, 69 

cross-examination, 109, 110 

badgering, 111 

conflicting testimony, 114 

friendly defense counsel, 113 

mistakes, 113, 114 

possibilities, 113 

pretrial discussions, 112 

previous lies, 115 

prior inconsistent statement, 114 

rapid fire questions, 113

repetitive questions, 112 

testifying for the witness, 111 

twisting prior testimony, 114 

volunteering information, 112 

yes or no answer, 111 

curtilage 

tracking device, 213 

custody 

Miranda warnings, 460 

incarcerated person, 463 

intent to arrest, 462 

police station, 462 

search warrant, 462 

Terry stop, 461, 462 

traffic stop, 462 

tantamount to formal arrest 

Miranda warnings, 460 

D

damage to land 

civil liability, 419 

intentional tort, 419 

damage to personal property 

civil liability, 419 

intentional tort, 419 

deadly force, 488 

agency policy, 498 

defined, 488 

examples, 493 

unarmed suspect, 493, 495, 496 

reasonableness, 489 

fear for life, 491 

lesser forms, 492 

offense level, 492 

retreat, 492 

Scott v. Harris, 489, 491 

Tennessee v. Garner, 490, 491 

verbal warning, 492

warning shots, 492 

deception 

Miranda waiver, 464 

voluntary statements, 456 

defendant’s statement

hearsay, 92 

defense case 

procedural stages 

criminal trial, 69 

defense discovery, 257 

Brady, 258, 260 

continuing duty, 263 

Giglio, 258, 260 

Jencks Act, 258, 262

reciprocal, 259 

Rule 16, 258, 259 

Rule 26.2, 258, 263 

sanctions, 263 

defense of others 

defenses 

intentional torts, 425 

defenses 

Federal Tort Claims Act, 424 

FTCA, 424 

intentional torts 

consent, 425 

defense of others, 425 

Federal Tort Claims Act, 425 

FTCA, 425 

necessity, 425 

self-defense, 425 

negligent torts 

assumption of risk, 425 

comparative negligence, 425 

contributory negligence, 425 

Federal Tort Claims Act, 425 

FTCA, 425 

demonstrative evidence, 68 

deportation proceedings 

right to remain silent, 474 

self-incrimination, 474 

deprivation of rights 

18 U.S.C. § 242 

elements, 404, 405 

specific intent, 406 

under color of law, 404, 405 

42 U.S.C. § 1983, 407 

under color of law, 408 

civil action, 407 

criminal action, 404 

specific intent, 406 
_______________ 

Index 

vii

under color of law, 404, 405, 408 

detention hearing 

pretrial release, 232 

bail jumping, 233 

digital evidence 

best evidence rule, 97 

foundations, 95, 96, 451 

hearsay, 97 

diplomatic immunity, 235 

diplomatic security command center, 235 

incident reports 

protective liaison division, 236 

traffic incidents, 236 

verifying status, 235 

diplomatic security command center, 

235

direct evidence, 73 

direct examination, 109 

discovery, 257 

Brady, 258, 260 

continuing duty, 263 

Giglio, 258, 260 

Jencks Act, 258, 262 

reciprocal, 259 

Rule 16, 258, 259 

Rule 26.2, 258, 263 

sanctions, 263 

distribution 

controlled substances, 147 

district court, 223 

felony trials, 223, 224 

doctrine of merger 

conspiracy, 28 

documents 

right to remain silent, 472, 473 

third parties, 473 

self-incrimination, 472, 473 

third parties, 473 

DOD land management officers 

jurisdiction, 9 

double jeopardy, 47 

dual sovereignty, 48 

mistrial, 48 

nolle prosequi, 48 

remand, 48 

drug offenses, 145 

drugs 

21 U.S.C. § 812, 145 

21 U.S.C. § 841, 147 

21 U.S.C. § 844, 146 

21 U.S.C. § 846 

conspiracy, 22 

actual possession, 147 

constructive possession, 147 

distribution, 147 

intent to distribute, 148 

manufacture, 147 

penalty, 148 

possession 

unlawful, 146 

schedules, 145 

dual sovereignty, 48 

due process of law 

Bill of Rights, 49 

identification procedures, 480

line-ups, 480 

photo arrays, 480, 481 

show-ups, 480, 482 

E

Eighth Amendment 

bail, 51 

Constitution, 51 

electronic law and evidence, 

183

electronic pagers 

search incident to arrest, 439 

electronic surveillance 

ECPA, 194, 213 

enumerated crimes, 194 

minimize, 194 

pen register, 213 

Title III-30 day period, 194 

Title III-amended, 194 

Title III-application for, 194 

Title III-application review by DOJ, 194 

Title III-codification of Katz, 194 

Title III-common name, 194 

Title III-contents of application, 194 

Title III-enumerated crimes, 194 

Title III-Katz ruling, 194 

Title III-minimization, 194 

Title III-Olmstead ruling, 194 

Title III-origin, 194 

Title III-purposes, 194 

Title III-updated by ECPA, 194 

trap and trace, 213 

elements, 117, 118, 120 

conspiracy, 23 

complete, 24 

knowledge and intent, 25 
_______________ 

Index

viii

overt act, 27 

the agreement, 25 

two or more persons, 24 

unlawful objective, 26 

negligent tort, 415 

breach of duty, 417 

causation, 418 

damages, 418 

duty, 416 

embezzlement of government 

property, 161 

emotional distress 

civil liability, 419 

intentional tort, 419 

enabling legislation 

land management, 2 

entrapment, 149 

establishment clause 

religion 

First Amendment, 42 

evidence, 65 

admissibility, 68 

Federal Rules of Evidence, 68 

bagging and tagging, 86 

best evidence rule 

computer evidence, 97 

digital evidence, 97 

duplicate, 89 

original, 89 

chain of custody, 86 

circumstantial, 73 

demonstrative, 68 

direct, 73 

expert testimony, 74 

forms, 67 

circumstantial, 73 

demonstrative, 68 

direct, 73 

real, 67 

testimonial, 67 

foundations, 85 

best evidence rule, 88 

business records or public documents, 

88

challenge, 87 

computer evidence, 95, 451 

digital evidence, 96 

laying, 86 

self-authentication, 89 

lay person testimony, 74 

emotional condition, 75 

handwriting, 75 

voice, 75 

real, 67 

relevant, 70 

other crimes or acts, 71 

identity, 72 

impeachment, 73 

intent, 71 

knowledge, 72 

modus operandi, 72 

motive, 71 

opportunity, 72 

plan or preparation, 72 

predisposition, 73 

testimonial, 67, 457 

evidentiary foundations, 85 

best evidence rule, 88 

computer evidence, 97 

digital evidence, 97 

duplicate, 89 

original, 89 

business records or public documents, 88 

challenge, 87 

computer evidence, 95, 451 

digital evidence, 96 

laying, 86 

self-authentication, 89 

business records, 90 

public documents, 90 

excessive force 

Bivens 

civil liability, 411 

civil liability 

Bivens, 411 

excited utterance 

hearsay exception, 93 

exclusive jurisdiction, 122 

land management, 4 

executive branch, 40 

exigent circumstance 

computers, 435 

expert opinion, 74 

expert testimony, 74 

extradition, 265 

F

failure to intervene 

Bivens 

civil liability, 412 

civil liability 
_______________ 

Index 

ix

Bivens, 412 

false affidavit 

Bivens 

civil liability, 410 

civil liability 

Bivens, 410 

false arrest 

civil liability, 419 

intentional tort, 419 

false imprisonment 

civil liability, 419 

intentional tort, 419

false statements, 155 

federal circuits, 221 

federal court 

circuit courts of appeals, 221 

en banc, 222 

judges, 224 

panels, 222 

district, 220 

district court, 223 

felony trials, 223, 224 

documents 

arrest warrant, 226 

criminal complaint, 227 

indictment, 228 

information, 228 

citation, 227, 257 

criminal complaint, 224, 256 

initial appearance, 227 

indictment, 225, 256 

information, 225, 256, 257 

summons, 226 

initial appearance, 228 

ticket, 227, 257 

magistrate court, 223 

felony cases, 223 

misdemeanor trials, 223, 224 

Supreme Court, 221 

federal rules of criminal procedure, 221 

justices, 224 

writ of certiorari, 221 

federal court procedures, 217 

arraignment, 243 

classification of offenses 

felony, 222 

misdemeanor, 222 

petty offense, 222 

defense discovery, 257 

detention hearing, 232 

extradition, 265 

formal charging documents, 256 

grand jury, 244 

identity hearing, 234 

initial appearance, 227 

jurisdiction, 264 

preliminary hearing, 241 

removal hearing, 234 

sentencing, 269 

pre sentence investigation(PSI), 269 

pre sentence report(PSR), 269 

U.S. Probation and Pretrial Services 

Office, 269 

speedy trial act, 266, 268 

arrest, 268 

statute of limitations, 266 

18 U.S.C. § 3282, 266 

continuing offenses, 267 

defined, 266 

tolling 

formal charging, 266 

fugitive, 267 

transfer, 265 

venue, 264

change, 265 

federal districts, 220 

federal employee 

assault, 125 

Federal Good Samaritan Act 

Federal Tort Claims Act, 422 

FTCA, 422 

federal privileges, 80 

Federal Rules of Evidence, 68 

Federal Tort Claims Act, 420 

absolute immunity, 420 

administrative remedies, 424 

constitutional torts, 424 

defenses, 424 

federal agency, 420 

Federal Good Samaritan Act, 422 

government employee, 420 

intentional torts, 421 

defenses, 425 

consent, 425 

defense of others, 425 

necessity, 425 

self-defense, 425 

investigative or law enforcement officer, 

421

lawsuit, 424 

negligent torts, 420 

defenses, 425 
_______________ 

Index

x

assumption of risk, 425 

comparitive negligence, 425 

contributory negligence, 425 

scope of employment, 421 

certification, 423 

government vehicles, 423 

sovereign immunity, 420 

felony, 117, 121, 222 

Fifth Amendment, 480 

Constitution, 47 

double jeopardy, 47 

dual sovereignty, 48 

mistrial, 48 

nolle prosiqui, 48 

remand, 48 

due process 

identification procedures, 480 

line-ups, 480 

photo arrays, 480, 481 

show-ups, 480, 482 

due process of law, 49

grand jury indictment, 49 

privilege, 80 

self-incrimination, 49 

Fifth Amendment, 453, 458 

fighting words, 44, 59 

contempt of cop, 60 

First Amendment 

Constitution, 42, 53 

freedom of assembly, 45 

freedom of religion, 42 

freedom of speech, 43, 53 

advocating imminent lawlessness, 43, 

62, 63 

clear and present danger, 43, 63 

content based restrictions, 55 

content neutral restrictions, 56 

expression, 53 

fighting words, 44, 59 

fraud, perjury, libel, and slander, 45 

government action, 53 

non-public forums, 57 

obscenity, 44, 64 

permits, 57 

public forums, 56 

true threats, 45, 60, 61 

unprotected conduct, 58 

foreign nationals 

appointment of guardian 

mandatory notification, 239 

arrest, 237 

consular access, 238 

mandatory notification, 238 

requested notification, 238 

death 

mandatory notification, 239 

ship or aircraft accident 

mandatory notification, 239 

Vienna Convention on Consular Relations, 

237

appointment of guardian, 239 

arrest, 237, 238 

death, 239 

ship or aircraft accident, 239 

formal charging documents, 256 

criminal complaint, 256 

indictment, 256 

information, 256, 257 

foundations 

best evidence rule 

computer evidence, 97 

digital evidence, 97 

duplicate, 89 

original, 89 

computer evidence, 95, 451 

digital evidence, 96 

evidence, 85 

best evidence rule, 88 

business records or public documents, 

88

self-authentication, 89 

business records, 90 

public documents, 90 

Fourteenth Amendment 

Constitution, 52 

fundamental rights, 52 

Fourth Amendment 

Constitution, 46 

searches and seizures, 46 

Fourth Amendment, 271 

arrest 

pointing weapon, 487

consent search 

computers, 431 

exigent circumstance 

computers, 435 

government action, 428 

inventory search 

cell phones, 441 

computers, 441 

plain view doctrine 

computers, 436 
_______________ 

Index 

xi

privacy protection, 194 

reasonable 

use of force, 485 

reasonable expectation of privacy 

computers, 429 

REP and tracking device, 213 

search incident to arrest 

computers, 439 

electronic pagers, 439 

PDAs, 440 

search warrant 

computers, 441 

tracking device, 213 

use of force 

factors, 485 

video surveillance, 213 

fraud statutes, 167 

fraud, perjury, libel, and slander 

freedom of speech, 45 

free exercise of religion clause, 

43

freedom of assembly, 45 

freedom of religion, 42 

establishment clause, 42 

free exercise clause, 43 

freedom of speech, 43, 53 

expression, 53 

government action, 53 

government regulation 

advocating imminent lawlessness, 43, 

62, 63 

clear and present danger, 43, 63 

content based, 55 

content neutral, 56 

fighting words, 44, 59 

fraud, perjury, libel, and slander, 45 

non-public forums, 57 

obscenity, 44, 64 

permits, 57 

public forums, 56

true threats, 45, 60, 61 

unprotected conduct, 58 

FTCA, 420 

absolute immunity, 420 

administrative remedies, 424 

constitutional torts, 424 

defenses, 424 

federal agency, 420 

Federal Good Samaritan Act, 422 

government employee, 420 

intentional torts, 421 

defenses, 425 

consent, 425 

defense of others, 425 

necessity, 425 

self-defense, 425 

investigative or law enforcement officer, 

421

lawsuit, 424 

negligent torts, 420 

defenses, 425 

assumption of risk, 425 

comparative negligence, 425 

contributory negligence, 425 

scope of employment, 421 

certification, 423 

government vehicles, 423 

sovereign immunity, 420 

fundamental rights 

Bill of Rights, 52 

Fourteenth Amendment, 52 

G

Giglio 

discovery, 258, 260 

Good Samaritan Act 

Federal Tort Claims Act, 422 

FTCA, 422 

government 

checks and balances, 40 

executive branch, 40 

judicial branch, 40 

government action, 428 

government employees 

right to remain silent, 473 

self-incrimination, 473 

government property 

abandoned, 161 

conversion, 163 

embezzlement, 161 

receipt of stolen, 164 

steals, 161 

theft, 159, 160 

government vehicles 

scope of employment 

Federal Tort Claims Act, 423 

government workplace 

defined, 384 

REP, 385 

job position, 390 

openness and accessibility, 389 
_______________ 

Index

xii

practices and procedures, 388 

prior notice, 386 

waiver, 391 

search, 383 

criminal evidence, 395 

dual purpose, 396 

employee misconduct, 393 

justified at inception, 394 

non-investigatory purpose, 393 

permissible scope, 394 

plain view, 395 

reasonableness, 391, 394 

scope, 394 

work-related purpose, 393 

government-informant privilege, 

80, 84 

Graham v. Connor 

reasonable force, 484 

grand jurors 

qualifications, 244 

selection, 244 

grand jury, 244 

access 

another grand jury, 254 

AUSAs, 254 

civil matters, 253 

Jencks Act, 254 

law enforcement, 253 

mixed information, 255 

Patriot Act, 254 

Rule 6(e) list, 254 

accusatory, 244 

grand jury matters, 253 

indictment 

no bill, 247 

sealed, 247 

true bill, 244, 246 

investigatory, 244 

members 

qualifications, 244 

selection, 244 

post indictment powers, 247 

process, 245 

secret, 245 

target, 246 

purpose, 244 

accusatory, 244 

indictment, 244 

investigatory, 244 

secrecy, 245, 252 

access, 253 

AUSA, 253 

court order, 253 

exceptions, 253 

private citizen, 253 

rule 6(e), 252 

subpoena, 248 

ad testificandum, 248 

duces tecum, 248 

items and things, 248 

limitations, 249 

obtaining, 251 

quashing, 249 

relevance, 249 

requirements, 249 

service, 249 

witness, 248 

target, 246 

grand jury indictment 

Bill of Rights, 49 

infamous crimes, 49 

H

handcuffing 

use of force

reasonableness, 487 

hearsay, 91 

business records, 91 

co-conspirator’s statement, 93 

computer evidence, 97 

defendant’s statement, 92 

digital evidence, 97 

exceptions, 93 

excited utterance, 93 

medical diagnosis, 94 

public documents, 91 

statement, 92 

trial, 91 

truth of matter asserted, 92 

husband-wife privilege, 80, 82 

I

identification procedures 

due process, 480 

line-ups, 480 

photo arrays, 480, 481 

show-ups, 480, 482 

identity hearing, 234 

immunity, 413, 471 

absolute, 413 
_______________ 

Index 

xiii

Federal Tort Claims Act, 420 

FTCA, 420 

qualified, 414, 508, 509, 510 

clearly established right, 414, 415, 510 

examples, 511 

sovereign, 413 

Federal Tort Claims Act, 420 

FTCA, 420 

transactional, 472 

use, 472 

impeachment, 75, 110 

bias, 76 

contradiction, 77 

motive to lie, 77 

other crimes or acts 

relevant evidence, 73 

physical or mental incapacity, 77 

prior conviction, 78 

prior inconsistent statement, 77 

specific instances of untruthfulness, 77 

implied consent 

computers, 434 

incriminating statements, 457 

indentity 

other crimes or acts 

relevant evidence, 72 

independent component 

doctrine, 443 

indictment, 225, 256 

arrest warrant, 228 

grand jury 

true bill, 244 

no bill, 247 

sealed, 247 

Sixth Amendment 

counsel, 476 

true bill, 244, 246 

infamous crimes 

grand jury indictment, 49 

informant 

Miranda warnings, 459 

Sixth Amendment counsel, 477 

information, 225, 256, 257 

arrest warrant, 228 

Sixth Amendment 

counsel, 476 

informed of charges 

Bill of Rights, 51 

initial appearance, 51, 227 

criminal complaint, 227 

defendant’s rights, 230 

federal judge, 227 

identity hearing, 234 

juvenile, 240 

location 

adjacent district, 233 

district of the arrest, 233

district of the crime, 233 

magistrate judge, 227 

pretrial detention, 231 

options, 231 

pretrial services report, 231 

pretrial release, 231 

bail, 232 

conditional, 232 

detention hearing, 232 

options, 231 

own recognizance, 232 

pretrial services report, 231 

pretrial services report, 231 

purpose, 230 

removal hearing, 234 

Sixth Amendment 

counsel, 476 

state or local judge, 228 

timing, 229 

warrantless arrest, 227 

criminal complaint, 227 

without unnecessary delay 

statements, 229 

intent, 118, 120 

other crimes or acts 

relevant evidence, 71 

intent to defraud 

counterfeit securities, 180 

interstate transport of stolen property, 179 

ITSP, 179, 180 

National Stolen Property Act, 179, 180 

intent to distribute 

controlled substances, 148 

intentional tort, 419, 421 

conversion, 419 

defenses, 425 

to property, 419 

land, 419 

personal, 419 

to the person, 419 

assault, 419 

battery, 419 

emotional distress, 419 

false arrest, 419 

false imprisonment, 419 
_______________ 

Index

xiv

internal government 

investigations 

right to remain silent, 473 

self-incrimination, 473

interrogations, 455 

McDade amendment, 479 

Miranda warnings, 459 

non-custodial, 471 

immunity, 471 

testimonial, 472 

transactional, 472 

use, 472 

subpoenas to testify, 471 

perjury, 472 

represented parties, 479 

Sixth Amendment 

counsel, 475 

offense specific, 476

interstate or foriegn commerce, 

175, 178, 180 

counterfeit securities, 180 

interstate transport of stolen property, 175 

ITSP, 175, 178, 180 

travel fraud, 178 

interstate transport of stolen 

property, 175 

intent to defraud, 179 

interstate or foreign commerce, 175 

knowledge, 177 

securities, 179 

transport, transfer, transmit, 176 

value, 176 

venue, 181 

inventory search 

cell phones, 441 

computers, 441 

standardized policy, 441 

ITSP, 175 

counterfeit securities, 179 

intent to defraud, 179, 180 

interstate transport of stolen property, 175 

knowledge, 177, 181 

securities, 179 

travel fraud, 178 

venue, 181 

J

Jencks Act 

discovery, 258, 262 

grand jury matters, 254 

grand jury testimony, 246 

judicial branch, 40 

jurisdiction, 117, 121, 122 

Bureau of Land Management, 8 

Bureau of Reclamation, 8 

concurrent, 5, 122 

defined, 264 

DOD land management officers, 9 

exclusive, 4, 122 

land management 

agency specific, 8 

special maritime and territorial, 4, 6 

territorial, 3 

concurrent, 5 

exclusive, 4 

proprietary, 5 

National Park Service, 8 

proprietary, 5, 122 

statutes applicable to designated lands, 

6 

statutes of general application, 5 

Tennessee Valley Authority, 8 

US Fish and Wildlife/National Marine 

Fisheries Service, 9 

USDA Forest Service, 8 

jury instructions 

procedural stages 

criminal trial, 70 

juvenile 

arrest, 240 

initial appearance, 240 

Miranda, 241 

K

Katz 

REP, 430 

knock and announce 

computers, 449 

knowingly, 120 

knowledge 

counterfeit securities, 181 

interstate transport of stolen property, 177 

ITSP, 177, 181 

national stolen property act, 177, 181 

other crimes or acts 

relevant evidence, 72 

L

land management, 1 
_______________ 

Index 

xv

authority and jurisdiction, 2 

Code of Federal Regulations, 3 

enabling legislation, 2 

jurisdiction 

agency specific, 8 

special maritime and territorial, 4, 6 

territorial, 3 

concurrent, 5 

exclusive, 4 

proprietary, 5 

late joiner 

conspiracy, 29 

lay person opinion, 74 

emotional condition, 75 

handwriting, 75 

voice, 75 

lay person testimony, 74 

emotional condition, 75 

handwriting, 75 

voice, 75 

laying a foundation 

evidence, 86 

line-ups 

Fifth Amendment 

due process, 480 

Sixth Amendment 

counsel, 475 

M

magistrate court, 223 

felony cases, 223 

misdemeanor trials, 223, 224 

mail fraud, 169 

18 U.S.C. § 1341, 169 

venue, 181 

venue, 181 

manufacture 

controlled substances, 148 

McDade amendment, 479 

no contact rule, 479 

represented parties, 479 

medical diagnosis 

hearsay exception, 94 

members of congress 

arrest, 239 

breach of peace, 240 

felony, 240 

Miranda 

juvenile, 241 

rights, 467 

counsel, 468 

ambiguous request, 470 

contact re-initiation, 469 

offense general, 469 

silence, 468 

waiver, 463 

affirmative, 464 

form, 465 

intelligent and knowing, 464 

voluntary, 463 

deception, 464 

warnings, 458 

exceptions, 466 

booking questions, 467 

public safety, 466 

violations, 466 

intentional, 466 

unintentional, 466 

when required, 459 

custody, 460 

incarcerated person, 463 

informant, 459 

intent to arrest, 462 

known law enforcement, 459 

police station, 462 

questioning, 459 

search warrant, 462 

stale warnings, 465 

Terry stop, 461, 462 

traffic stop, 462 

undercover agent, 459 

Miranda rights, 467 

counsel, 468 

ambiguous request, 470 

contact re-initiation, 469 

offense general, 469 

silence, 468 

Miranda v. Arizona, 458 

Miranda warnings, 458 

exceptions, 466 

booking questions, 467 

public safety, 466 

stale, 465 

violations, 466 

intentional, 466 

unintentional, 466 

when required, 459 

custody, 460 

search warrant, 462 

Terry stop, 461, 462 

traffic stop, 462 

incarcerated person, 463 
_______________ 

Index

xvi

informant, 459 

intent to arrest, 462 

known law enforcement, 459 

police station, 462 

questioning, 459 

stale warnings, 465 

undercover agent, 459 

misdemeanor, 117, 121, 222 

misprision of a felony 

18 U.S.C. § 4, 34 

mistrial 

double jeopardy, 48 

modus operandi 

other crimes or acts 

relevant evidence, 72 

motive, 120 

other crimes or acts 

relevant evidence, 71 

motive to lie, 77 

N

National Park Service 

jurisdiction, 8 

National Stolen Property Act, 

175

18 U.S.C. § 2314, 175 

venue, 181 

counterfeit securities, 179 

intent to defraud, 179, 180 

interstate transport of stolen property, 175 

knowledge, 177, 181 

securities, 179 

travel fraud, 178 

venue, 181 

necessity 

defenses 

intentional torts, 425 

negligent tort, 415, 420 

defenses, 425 

elements, 415 

breach of duty, 417 

causation, 418 

damages, 418 

duty, 416 

nolle prosiqui 

double jeopardy, 48 

non-custodial interrogations, 

471

immunity, 471 

testimonial, 472 

transactional, 472 

use, 472 

perjury, 472 

subpoenas to testify, 471 

non-deadly force, 484 

chemical sprays, 498, 502 

examples, 504, 505, 506, 507, 508 

excessive, 502, 503 

reasonable, 503, 504 

striking instruments, 498 

examples, 499 

gratuitous blows, 498

O

obscenity 

freedom of speech, 44, 64 

officer liability, 399 

opening statements 

procedural stages 

criminal trial, 69 

opinion 

expert, 74 

lay person, 74 

emotional condition, 75 

handwriting, 75 

voice, 75 

opportunity 

other crimes or acts 

relevant evidence, 72

overt act 

conspiracy 

elements, 27 

own recognizance 

pretrial release, 232 

P

parties to crimes, 31 

accessory after the fact, 33 

aiding and abetting, 32 

causing a crime, 33 

misprision of a felony, 34 

principal, 31 

Patriot Act 

grand jury matters, 254 

PDAs

search incident to arrest, 440 

penalty 

21 U.S.C. § 841, 148 

21 U.S.C. § 844, 148 
_______________ 

Index 

xvii

drugs, 148 

penalty, 120, 128, 129 

conspiracy, 23 

perjury, 472 

permits 

freedom of speech, 57 

petty offense, 222 

photo arrays 

Fifth Amendment 

due process, 480, 481 

physical or mental incapacity, 

77

Pinkerton Theory 

conspiracy, 28 

plain view doctrine 

computers, 436 

government workplace search, 395 

right to be 

computers, 436 

plan or preparation 

other crimes or acts 

relevant evidence, 72 

pointing weapon 

use of force 

reasonableness, 487

possession 

controlled substances 

unlawful, 146 

predisposition 

other crimes or acts 

relevant evidence, 73 

preliminary hearing, 241 

petty offenses, 241 

procedure, 242 

results, 242 

timing, 242 

waiver, 241 

pretrial release 

bail, 232 

bail jumping, 233 

conditional, 232 

detention hearing, 232 

own recognizance, 232 

pretrial services report 

initial appearance, 231 

principal 

parties to crimes, 31 

prior conviction 

impeachment, 78 

prior inconsistent statement, 77 

private conduct 

computer search, 428 

private search 

computers, 428 

privileges, 78 

federal, 80 

attorney-client, 80, 81 

clergy-communicant, 80, 83 

fifth amendment, 80 

government-informant, 80, 84 

husband-wife, 80, 82 

psychotherapist-patient, 80, 83 

holder, 79 

non-federal, 80 

waiver, 79 

probable cause, 275 

arguable, 410 

ECPA-felony, 194 

Title III-predicate offense, 194 

Title III-suspects, 194 

video surveillance warrant, 213 

procedural stages 

criminal trial, 68 

case in chief, 69 

closing argument, 70 

defense case, 69 

jury instructions, 70 

opening statements, 69 

rebuttal case, 69 

sentencing, 70 

suppression motion, 68 

voir dire, 69 

proprietary jurisdiction, 122 

land management, 5 

statutes applicable to designated lands, 6 

statutes of general application, 5 

psychotherapist-patient 

privilege, 80, 83 

public documents 

foundations, 88 

hearsay, 91 

self-authentication, 90 

public forums 

freedom of speech, 56, 57 

public safety exception 

Miranda warnings, 466 

Q

qualified immunity, 414, 508, 

509, 510 
_______________ 

Index

xviii

clearly established right, 414, 415, 510 

examples, 511 

R

real evidence, 67 

reasonable expectation of 

privacy 

computers, 429 

3

rd party possession, 430 

stolen, 430 

reasonable force, 485 

“officer safety”, 488 

factors, 485 

handcuffing, 487 

pointing weapon, 487 

rebuttal case 

procedural stages 

criminal trial, 69 

receipt of stolen government 

property, 164 

knowledge, 165 

reciprocal discovery, 259 

re-direct examination, 110 

refreshing recollection, 94, 108 

relevant evidence, 70 

other crimes or acts, 71 

identity, 72 

impeachment, 73 

intent, 71 

knowledge, 72 

modus operandi, 72 

motive, 71 

opportunity, 72 

plan or preparation, 72 

predisposition, 73 

remand 

double jeopardy, 48 

removal hearing, 234 

REP

computers, 429 

3

rd party possession, 430 

stolen, 430 

Katz, 430 

right to counsel 

Bill of Rights, 51 

right to remain silent, 453, 471 

collective entities, 473

deportation proceedings, 474 

documents, 472, 473 

third parties, 473 

government employees, 473 

internal government investigations, 473 

perjury, 472 

Rule 16 

discovery, 258, 259 

Rule 26.2 

discovery, 258, 263 

Rule 6(e) list 

grand jury matters, 254 

S

schedules 

drugs, 145 

scope of employment 

certification 

Federal Tort Claims Act, 423 

constitutional torts 

Federal Tort Claims Act, 424 

Federal Tort Claims Act, 421 

government vehicles, 423 

FTCA, 421 

government vehicles, 423 

scope of search 

computers 

consent, 431 

Scott v. Harris 

deadly force, 489, 491 

sealed 

indictment, 247 

search 

computers 

consent 

voluntary, 431 

consent 

computers, 431 

authority, 431 

voluntary, 431 

implied 

computers, 434 

scope 

computers, 431 

third party 

computers, 432 

exigent circumstance 

computers, 435 

government workplace, 383 

criminal evidence, 395 

defined, 384 

dual purpose, 396 

employee misconduct, 393 
_______________ 

Index 

xix

justified at inception, 394 

non-investigatory purpose, 393 

permissible scope, 394 

plain view, 395 

reasonableness, 391, 394 

REP, 385 

job position, 390

openness and accessibility, 389 

practices and procedures, 388 

prior notice, 386 

waiver, 391 

scope, 394 

work-related purpose, 393 

inventory 

computers, 441 

standardized policy, 441 

private conduct 

computers, 428 

reasonable expectation of privacy 

computers, 429 

REP 

computers, 429 

Katz, 430 

test, 430 

warrant 

computers, 441 

execution, 448 

independent component doctrine, 

443

multiple warrants, 447 

scope, 443, 444 

systems, 442 

time limitations, 451 

stored email, 447 

within the district 

computers, 447 

search incident to arrest 

computers, 439 

electronic pagers, 439 

PDAs, 440 

search warrant 

computers, 441 

execution, 448 

who, 448 

independent component doctrine, 443 

multiple warrants, 447 

scope, 443, 444 

systems, 442 

time limitations, 451 

execution 

Miranda warnings, 462 

stored email, 447 

within the district 

computers, 447 

securities 

interstate transport of stolen property, 179 

ITSP, 179 

National Stolen Property Act, 179 

seizure 

arrest 

pointing weapon, 487 

incarcerated person 

Miranda warnings, 463 

intent to arrest 

Miranda warnings, 462 

police station 

Miranda warnings, 462 

Terry stop 

Miranda warnings, 461, 462 

traffic stop 

Miranda warnings, 462 

self-authentication, 89 

business records, 90 

public documents, 90 

self-defense 

defenses 

intentional torts, 425 

self-incrimination, 453 

Bill of Rights, 49 

collective entities, 473 

deportation proceedings, 474 

documents, 472, 473 

third parties, 473 

government employees, 473 

internal government investigations, 473 

perjury, 472 

sentencing, 269 

pre sentence investigation(PSI), 269 

pre sentence report(PSR), 269 

procedural stages 

criminal trial, 70 

U.S. Probation and Pretrial Services Office, 

269

serious physical injury 

defined, 488 

show-ups 

Fifth Amendment 

due process, 480, 482 

Sixth Amendment 

confront witnesses, 50 

Constitution, 50 

counsel, 474 

attachment, 476 
_______________ 

Index

xx

critical stages 

attachment, 476 

interrogations, 475 

line-ups, 475 

informant, 477 

interrogations 

offense specific, 476 

invocation, 477, 478 

undercover agent, 477 

waiver, 477 

informed of charges, 51 

right to counsel, 51 

speedy trial, 50 

venue, 51 

witness compulsory process, 50 

Sixth Amendment, 453 

sovereign immunity, 413 

Federal Tort Claims Act, 420 

FTCA, 420 

special maritime and territorial 

jurisdiction 

18 U.S.C. § 7, 6 

land management, 4, 6 

specific instances of 

untruthfulness 

impeachment, 77 

speedy trial 

Bill of Rights, 50 

speedy trial act, 266, 268 

arrest, 268 

spontaneous statements, 460 

statements 

incriminating, 457 

initial appearance 

without unnecessary delay, 229 

interrogations, 455, 459 

McDade amendment, 479 

non-custodial, 471 

perjury, 472 

represented parties, 479 

spontaneous 

Miranda warnings, 460 

testimonial, 457 

voluntary, 454, 455 

deception, 456 

totality of circumstances, 455 

deception, 456 

volunteered 

Miranda warnings, 460 

statute of limitations, 266 

18 U.S.C. § 3282, 30 

18U.S.C. § 3282, 266 

continuing offenses, 267 

defined, 266 

tolling 

formal charging, 266 

fugitive, 267 

statutes applicable to 

designated 

jurisdiction, 6 

statutes of general application 

jurisdiction, 5 

statutory law, 117, 118 

stealing government property, 

161

stolen computers 

REP, 430 

striking instruments 

use of force, 498 

examples, 499 

gratuitous blows, 498 

subpoena, 213 

administrative, 252 

grand jury, 248 

duces tecum, 248 

limitations, 249 

obtaining, 251 

quashing, 249 

requirements, 249 

service, 249 

witness, 248 

IG, 252 

IG Act, 252 

network service provider, 213 

summons, 226 

initial appearance, 228 

suppression motion 

procedural stages 

criminal trial, 68 

Supreme Court, 221 

Federal Rules of Criminal Procedure, 221 

justices, 224 

writ of certiorari, 221 

T

tantamount to formal arrest 

custody 

Miranda warnings, 460 

Tennessee v. Garner 

deadly force, 490, 491 

Tennessee Valley Authority 
_______________ 

Index 

xxi

jurisdiction, 8 

territorial jurisdiction 

concurrent, 5 

exclusive, 4 

land management, 3 

proprietary, 5 

Terry stop 

Miranda warnings, 461, 462 

testimonial evidence, 67, 457 

testimonial immunity, 472 

testimonial statements, 457 

testimony, 99 

audible answers, 104 

cop talk, 106 

cross-examination, 109, 110 

badgering, 111 

conflicting testimony, 114 

friendly defense counsel, 113 

mistakes, 113, 114 

possibilities, 113 

pretrial discussions, 112 

previous lies, 115 

prior inconsistent statement, 114 

rapid fire questions, 113 

repetitive questions, 112 

testifying for the witness, 111 

twisting prior testimony, 114 

volunteering information, 112 

yes or no answer, 111

direct examination, 109 

good attitude, 103 

hearsay, 91 

defendant’s statement, 92

exceptions, 93 

excited utterance, 93 

medical diagnosis, 94 

statement, 92 

trial, 91 

truth of matter asserted, 92 

I don’t know, 106

I don’t recall, 106

impeachment, 110 

just the facts, 106 

listen, think, answer, 104 

memorized, 107 

Miranda rights, 115 

mistakes, 103 

objection rulings, 105 

positive and definitive answers, 107 

prior criminal history, 115 

privileges, 78 

attorney-client, 80, 81 

clergy-communicant, 80, 83 

federal, 80

Fifth Amendment, 80 

government-informant, 80, 84 

holder, 79 

husband-wife, 80, 82 

non-federal, 80 

psychotherapist-patient, 80, 83 

waiver, 79 

proper demeanor, 102 

prosecutorial assistance, 105 

re-direct examination, 110 

refreshing recollection, 94, 108 

serious, 103 

speaking to the judge, 105 

suppressed evidence, 116 

volunteered information, 105 

theft of government property, 

159, 160 

abandoned, 161 

felony, 160 

misdemeanor, 160 

third party consent 

computers, 432 

ticket, 227, 257 

tort, 401 

civil lawsuit, 401 

civil liability, 401, 415 

intentional, 419, 421 

defenses, 425 

negligent, 415, 420 

defenses, 425 

constitutional, 406 

scope of employment, 424 

definition, 401 

intentional, 419, 421 

assault, 419 

battery, 419 

conversion, 419 

damage to land, 419 

damage to personal property, 419 

defenses, 425 

emotional distress, 419 

false arrest, 419 

false imprisonment, 419 

to property, 419 

to the person, 419 

negligent, 415, 420 

defenses, 425 

elements, 415 
_______________ 

Index

xxii

state law, 401, 415 

totality of circumstances 

voluntary statements, 455 

deception, 456 

tracking device 

probable cause for warrant, 213 

traffic stop 

Miranda warnings, 462 

transactional immunity, 472 

transfer, 265 

travel fraud 

interstate or foreign commerce, 178 

value, 179 

true threats 

freedom of speech, 45, 60, 61 

U

under color of law 

18 U.S.C. § 242, 404, 405 

42 U.S.C. § 1983, 408 

undercover agent 

Miranda warnings, 459 

Sixth Amendment counsel, 477 

unlawful arrest 

Bivens 

civil liability, 409 

civil liability 

Bivens, 409 

unlawful possession 

controlled substances, 146 

unlawful search 

Bivens 

civil liability, 409 

civil liability 

Bivens, 409 

unprotected conduct 

freedom of speech, 58 

unprotected speech 

advocating imminent lawlessness, 43, 62, 

63

clear and present danger, 43, 63 

fighting words, 44, 59 

fraud, perjury, libel, and slander, 45 

obscenity, 44, 64 

true threats, 45, 60, 61 

US Fish and Wildlife/National 

Marine Fisheries Service 

jurisdiction, 9 

USDA Forest Service 

jurisdiction, 8 

use and fruits immunity, 472 

use of force, 483 

agency policy, 498 

deadly, 488 

defined, 488 

reasonableness, 489 

fear for life, 491

lesser forms, 492 

offense level, 492 

retreat, 492 

verbal warning, 492 

warning shots, 492 

Scott v. Harris, 489, 491 

Tennessee v. Garner, 490, 491 

examples, 493 

unarmed suspect, 493, 495, 496 

non-deadly, 484 

chemical sprays, 498, 502 

examples, 504, 505, 506, 507, 508 

excessive, 502, 503 

reasonable, 503, 504 

striking instruments, 498 

examples, 499 

gratuitous blows, 498 

reasonableness, 485 

“officer safety”, 488

factors, 485 

Graham v. Conner, 484 

handcuffing, 487 

pointing weapon, 487 

serious physical injury 

defined, 488 

V

value 

18 U.S.C. § 2311, 177 

interstate transport of stolen property, 177 

ITSP, 179 

travel fraud, 179 

venue, 264 

Bill of Rights, 51 

change, 265 

conspiracy, 31 

defined, 264 

ITSP, 181 

mail fraud, 181 

national stolen property act, 181 

Sixth Amendment, 51 

wire fraud, 181 

Vienna Convention on Consular 
_______________ 

Index 

xxiii

Relations, 237, 238, 239 

voir dire 

procedural stages 

criminal trial, 69 

voluntary 

Miranda waiver, 463 

deception, 464 

voluntary statements, 454, 455 

deception, 456 

totality of circumstances, 455 

deception, 456 

volunteered statements, 460 

W

waiver 

Miranda, 463 

affirmative, 464 

form, 465 

intelligent and knowing, 464 

voluntary, 463 

deception, 464 

privileges, 79 

warning shots, 492 

warrant 

arrest, 226 

criminal complaint, 227 

indictment, 228

information, 228 

execution 

Miranda warnings, 462 

search 

computers, 441 

execution, 448 

independent component doctrine, 

443

multiple warrants, 447 

scope, 443, 444 

systems, 442 

time limitations, 451 

execution 

Miranda warnings, 462 

stored email, 447 

within the district 

computers, 447 

wire fraud, 173 

18 U.S.C. § 1343, 173 

venue, 181 

venue, 181 

withdrawal 

conspiracy, 29 

without unnecessary delay 

initial appearance 

statements, 229 

witness 

bias, 76 

characteristics 

good attitude, 103 

mistakes, 103, 113, 114 

proper demeanor, 102 

serious, 103 

compulsory process 

Sixth Amendment, 50 

confront 

Sixth Amendment, 50 

contradiction, 77 

credibility, 75 

bias, 76 

contradiction, 77 

impeachment, 75 

motive to lie, 77 

physical or mental incapacity, 77 

prior conviction, 78 

prior inconsistent statement, 77 

specific instances of untruthfulness, 77 

cross-examination, 109, 110 

badgering, 111 

conflicts between witnesses, 114 

friendly defense counsel, 113 

mistakes, 113, 114 

possibilities, 113 

pretrial discussions, 112 

prior inconsistent statement, 114 

prior lies, 115 

rapid fire questions, 113 

repetitive questions, 112 

testifying for the witness, 111 

twisting prior testimony, 114 

volunteering information, 112 

yes or no answer, 111 

direct examination, 109 

expert, 74 

hearsay, 91 

defendant’s statement, 92 

exceptions, 93 

excited utterance, 93 

medical diagnosis, 94 

statement, 92 

trial, 91 

truth of matter asserted, 92 

impeachment, 75, 110 

lay person, 74 

emotional condition, 75 
_______________ 

Index

xxiv

handwriting, 75 

voice, 75 

motive to lie, 77 

opinion 

expert, 74 

lay person, 74 

emotional condition, 75 

handwriting, 75 

voice, 75 

physical or mental incapacity, 77 

prior conviction, 78 

prior inconsistent statement, 77 

privileges, 78 

attorney-client, 80, 81 

clergy-communicant, 80, 83 

federal, 80 

fifth amendment, 80 

government-informant, 80, 84 

holder, 79 

husband-wife, 80, 82 

non-federal, 80 

psychotherapist-patient, 80, 83 

waiver, 79 

re-direct examination, 110 

refreshing recollection, 94, 108 

skills 

audible answers, 104 

cop talk, 106 

I don’t know, 106

I don’t recall, 106

just the facts, 106 

listen, think, answer, 104 

memorized testimony, 107 

objection rulings, 105 

positive and definitive answers, 107 

prosecutorial assistance, 105 

speaking to the judge, 105 

volunteering information, 112 

specific instances of untruthfulness, 77 

testimony, 99 

Miranda rights, 115 

prior criminal history, 115 

suppressed evidence, 116 

volunteered information, 105 

witness compulsory process 

Bill of Rights, 50 
_______________ 

Current Instructors 

Current Instructors 

Glynco 

Ken Anderson was an Assistant Solicitor in the Fourteenth 

Judicial Circuit in South Carolina. As an Assistant Solicitor, 

Mr. Anderson prosecuted adult and juvenile offenders for 

crimes ranging from murder to driving under the influence. He 

also represented the state in civil forfeiture actions. Mr. 

Anderson taught legal classes for officers participating in the 

South Carolina Reserve Officers Training Program. Mr. 

Anderson received his BA from The Citadel, Charleston, South 

Carolina and his JD from Salmon P. Chase College of Law, 

Highland Heights, Kentucky. He has been an active member of 

the South Carolina Bar since November 1996. He can be 

contacted at (912) 267-3429 or kenneth.a.anderson@dhs.gov.

Bruce-Alan Barnard served on fast-attack submarines in the 

United States Navy from 1979 to 1989. He served in the 

United States Air Force as a Judge Advocate (JAG) from 1996 to 

2007. In 2007 he accepted a position as an attorney-advisor for 

ICE and served as an instructor teaching customs law at the 

ICE Academy. He assumed his current duties in the FLETC 

legal division in 2009. He has a J.D. from the University of 

Florida, an M.B.A. from Auburn University, and a B.S. in Adult 

Education from Southern Illinois University. He is a member of 

the Florida Bar. Mr. Barnard can be contacted at (912) 267-

2181 or bruce.barnard@dhs.gov.

John Besselman is Division Chief of the Legal. Prior to that, 

he served as the Division Chief of the Driver and Marine 

Division and as a Branch Chief of the Legal Division. John has 

served as a Prosecuting Attorney for Cumberland County, 

Maine, and Licking County, Ohio. He was also an attorney with 

the Office of Chief Counsel, U. S. Customs Service where he 

trained Customs Service law enforcement personnel and served 

as Attorney-Advisor to agents and inspectors in the field. John 

was Attorney-Advisor in Chicago where he was lead legal 
_______________ 

Current Instructors

advisor on customs investigations before turning cases over to 

the U. S. Attorney‘s Office for prosecution. John graduated 

from Kent State University with a B.S. in Criminal Justice, Ohio 

State University College of Law with a J.D., and Georgia 

Southern University with a Masters in Public Administration. 

John has been a Senior Legal Instructor at the Federal Law 

Enforcement Training Center since 1997. During that time, he 

was the Editor of The Quarterly Review (now called The 

Informer), a legal newsletter for law enforcement, Editor of the 

Legal Division Student Handbook ̧ and Editor of the Legal Issues 

Source Book (now called the Reference Book), a compilation of 

significant court decisions on 4th, 5th, and 6th Amendment 

issues. Mr. Besselman can be contacted at (912) 267-2693 or 

john.besselman@dhs.gov. 

Bob Cauthen is the Assistant Division Chief of the Legal 

Division. He joined the Legal Division in 1999 as a Senior 

Instructor. Bob was Program Manager for advance legal 

training programs from 2002 - 2010 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 was responsible 

for the Legal Division website and was 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 retired in March 2010 as a Captain in the Navy 

Reserve JAG Corps where he served as Commanding Officer of 

two units, a trial judge, a judge on the Navy Marine Corps Court 

of Criminal Appeals, and was 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 
_______________ 

Current Instructors 

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.

Mikell M. Henderson is a graduate of the University of South 

Carolina (J.D.) and The Citadel, the Military College of South 

Carolina, (B.S). He also studied law at the University of North 

Dakota and at the University of Oslo, Norway. He was a judicial 

clerk for the Honorable Rodney A. Peeples in the Second 

Judicial Circuit in South Carolina. He worked as a prosecutor 

in South Carolina from 1999 to 2009. He has been a guest 

faculty member at the National College of District Attorneys at 

the National Advocacy Center in Columbia, South Carolina. He 

is a member of the South Carolina Bar and the Federal Bar for 

the District of South Carolina and the Fourth Judicial Circuit. 

Mr. Henderson can be contacted at (912) 267-2165 or 

mikell.henderson@dhs.gov.

Bruce Landrum retired from the United States Marine Corps 

after 28 years of service, the last 20 of which he served as a 

military attorney and judge. He taught evidence and trial 

practice at the Naval Justice School and has served as an 

instructor with the Defense Institute of International Legal 

Studies. From 2002 until 2004, he led the largest law office in 

the Marine Corps and deployed with a full-service legal team to 

Operation Iraqi Freedom. In 2005, he was designated as 

Circuit Military Judge, Keystone Judicial Circuit, and later 
_______________ 

Current Instructors

Circuit Military Judge of the new Western Pacific Circuit. From 

February 2008 until February 2009, he was the senior Marine 

Corps legal advisor in Iraq, serving as Staff Judge Advocate for 

Multi National Force – West in Al Anbar Province. He is a 

graduate of the University of Florida (B.S., J.D.), The Judge 

Advocate General‘s School, U.S. Army, (L.L.M.), and the InterAmerican Defense College in Washington, D.C. He is admitted 

to the Bar in the State of Florida and before the United States 

Supreme Court and the United States Court of Appeals for the 

Armed Forces. Mr. Landrum can be contacted at (912) 267-

2323 or bruce.landrum@dhs.gov.

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.

Tim Miller is the Legal Division Use of Force Subject Matter 

Expert. He 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 
_______________ 

Current Instructors 

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 served as Branch Chief until 2011 

when he accepted his current position as the Legal Division‘s 

first Use of Force Subject Matter Expert. 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 Charlottesville, 

Virginia. Mr. Miller can be contacted at (912) 267-2183 or 

tim.miller@dhs.gov. 

Gabriel Pedrick is an active duty Judge Advocate in the United 

States Air Force, detailed to the Legal Division from the Air 

Force Office of Special Investigations, Air Force Special 

Investigations Academy, where he is currently assigned. He is a 

graduate of Biola University (B.A., M.A.), and Western State 

University School of Law (J.A.), where he graduated as 

Valedictorian. Following Law School, Captain Pedrick entered 

service with the Air Force at Wright-Patterson Air Force Base 

(WPAFB). While there, he was the Chief of Legal Assistance and 

Preventive Law, and Officer in Charge of Contracts and 

Environmental Law. Following that, he served at Misawa Air 

Base, Japan. At Misawa, he was the Chief of Adverse Actions, 

and the Chief of International and Operations Law. During this 

time, he also served as trial counsel, prosecuting courtsmartial. Later at Misawa, he was designated as the Area 

Defense Counsel, defending Air Force members in courtsmartial, non-judicial punishment, and other adverse actions. 

Captain Pedrick can be contacted at (912) 267-2604 or 

gabriel.pedrick@dhs.gov. 

Poppi Ritacco served as an Assistant District Attorney in 

Massachusetts from 2003 to 2007. From 2007 to 2009, she 

worked as an Assistant Attorney General in Washington D.C. 

She is a graduate of Carleton College (B.A.) and Harvard Law 

School (J.D.). She is a member of the Massachusetts and 

Washington D.C. bars. Ms. Ritacco can be contacted at (912) 

267-2970 or poppi.ritacco@dhs.gov.
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Current Instructors

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.

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.

Artesia 

Floyd D. “Terry” Haake is a Senior Instructor. He is a 

graduate of the University of Utah (B.A.) and the University of 

New Mexico (J.D.). He prosecuted and defended cases in the 

state courts of New Mexico. Mr. Haake can be contacted at 

(575) 748-0416 or floyd.haake@dhs.gov. 

Dean Hawkins is a Senior Instructor. Dean retired from federal 

service with approximately 27 years experience as a GS-1811, 

federal criminal investigator. This includes 20 years as a 

Special Agent with the Internal Revenue Service, Criminal 

Investigation Division; three years as a Special Agent with the 

Resolution Trust Corporation, Office of Inspector General; and 

four years as a Legal Instructor with the Legal Division, Federal 

Law Enforcement Training Center. He has been a contract 

Legal Instructor with the Legal Division, Federal Law 

Enforcement Training Center for eight years. Mr. Hawkins 
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Current Instructors 

undergraduate degree is in accounting. He has a Juris Doctor 

degree from Lincoln University School of Law, San Jose, 

California. He is a member of the State Bar of California. Mr. 

Hawkins can be contacted at (575) 746-5710 or 

dean.hawkins@dhs.gov. 

Madeline Melka is a Senior Instructor. Prior to coming to the 

Federal Law Enforcement Training Center in 2006, Ms. Melka 

was the Deputy District Attorney for Torrance County, New 

Mexico until 1997 when she was appointed the first attorneyinstructor for the New Mexico Department of Public Safety Law 

Enforcement Academy. Her duties included basic and advanced 

training, revision of the legal curriculum and appointment as an 

acting assistant attorney general in order to advise the Law 

Enforcement Academy Board. Additionally, Ms. Melka was 

appointed Domestic Violence Special Commissioner to the 

Seventh Judicial District Court in Estancia, New Mexico where 

she presided over domestic violence protection order hearings. 

Ms. Melka did her undergraduate and graduate work in 

education at U.C.L.A. and earned a Bachelor‘s degree and a 

Teaching Credential. She received her Juris Doctorate degree 

from Southwestern University in 1985 and is licensed in 

California and New Mexico. Ms. Melka can be contacted at 

(575) 746-5654 or madeline.melka@dhs.gov. 

John Phinizy is a Senior Instructor. Mr. Phinizy was an officer 

in the United States Army in the Military Intelligence Branch 

and conducted counter-intelligence investigations for eight 

years. He worked both foreign and domestic cases. While 

attending Baylor School of Law he was an investigator with the 

Bell County Texas Prosecutors Office. Upon graduation from 

law school he was prosecutor in Bell County and in 1990, he 

was appointed as an Assistant United States Attorney in the 

Western District of Texas (WDTX) and remained there until 

coming to the FLETC in May 2007. As a state prosecutor he 

prosecuted misdemeanors and felonies. His last five years in 

the Bell County District Attorney‘s Office he handled major 

narcotics prosecutions and violent crimes. As an AUSA he also 

prosecuted major narcotics cases and several homicides. 

Phinizy was one of five prosecutors on the Branch Davidian 
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Current Instructors

case out of Waco, Texas. He spent his last five years in the 

WDTX assigned to the FBI‘s Joint Terrorism Task Force in 

Austin, Texas. He was involved in the investigation and 

prosecution of violations dealing with terrorism and national 

security. Mr. Phinizy can be contacted at (575) 746-5729 or 

john.phinizy@dhs.gov.