Homeland

Security

FEDERAL LAW ENFORCEMENT TRAINING 

CENTERS

OFFICE OF CHIEF COUNSEL

GLYNCO, GEORGIA

LEGAL DIVISION

HANDBOOK

2015
Foreword

January 2015

The mission of the Federal Law Enforcement Training Centers

(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 Chief Counsel, 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 Attorney-Advisors 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, courtroom 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 

related Legal Updates. 

In this spirit, we offer our Handbook. The 2015 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: 

https://www.fletc.gov/legal-resources

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 federal circuit court 

and Supreme Court case summaries covering a variety of topics 

of interest for law enforcement officers. 

Join The Informer subscription list and begin receiving The 

Informer for free each month by visiting this website:

http://peach.ease.lsoft.com/scripts/wa 

peach.exe?SUBED1=fletclgd&A=1

No one but the FLETC Legal Division will have access to your 

email address, and you will receive mailings from no one except 

the FLETC Legal Division.

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.

Ken Anderson

Editor

kenneth.a.anderson@dhs.gov

ii
Current Instructors

Glynco, Georgia

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 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.

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 

FLETCs 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 

Current Instructors iii
agents and officers. He also served as editor of the FLETCs

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 

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. Mr. Caldbeck 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.

Bruce Cameron is a Senior Legal Instructor with over thirty 

years of experience as a legal supervisor, attorney, and legal 

instructor with the U.S. Treasury Department and the 

Department of Homeland Security. Mr. Cameron is currently 

assigned to the Federal Law Enforcement Training Center’s 

WAE Division and primarily instructs legal courses for the 

FLETC Legal Division. Mr. Cameron has developed and taught 

many legal courses including: Constitutional Law, Customs 

Border Search and Seizure Authorities, Courtroom Testimony, 

Money Laundering, Asset Forfeiture and Financial 

Investigations, Customs Fraud, Undercover Operations, Basic 

and Advanced Intelligence, Counter Proliferation Investigations, 

Technical Surveillance, Rights, Warnings and Disciplinary 

Procedures, Privacy Act, and Freedom of Information Act. Mr. 

Cameron is a graduate of the Ohio State University (J.D.) and 

the University of Maryland (B.A.). He can be contacted at (912) 

267-2610 or bruce.cameron@fletc.dhs.gov. 

iv Current Instructors
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.

Major Brian K. Harris 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 the University of Mississippi (B.A), Northcentral 

University (M.B.A.), and the University of Mississippi School of 

Law (J.D.). Maj. Harris also served in the Mississippi Army 

National Guard as an enlisted tank crewman before receiving a 

Commission as a Military Intelligence Officer. During law 

school, Maj. Harris was deployed to Iraq for approx. 14 months 

and then returned home to finish law school. After graduating 

law school, Maj. Harris crossed into the United States Air Force 

first serving at Robins AFB, GA as an Assistant Staff Judge 

Advocate, then at Travis AFB, CA both as the Chief of Military 

Justice and then as the Area Defense Counsel (ADC). As an 

ADC, Maj. Harris defended Air Force members in courtsmartial, non-judicial punishment, and other adverse actions. 

Maj. Harris is a member of the bar in the State of Mississippi. 

Maj. Harris can be contacted at 912 554-4692 or 

brian.k.harris@associates.fletc.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 

Current Instructors v
Circuit Military Judge, Keystone Judicial Circuit, and later 

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, (LL.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.

Jim McAdams is a graduate of Davidson College in North 

Carolina, a cum laude graduate of the University of Miami 

School of Law, and a member of the Florida Bar. Before retiring 

from the United States Department of Justice in 2006, he spent 

34 years in the federal court family, first as a United States 

Probation Officer in Miami, Florida, and then nearly 26 years as 

an Assistant United States Attorney (AUSA) in the Southern 

District of Florida (SDFL). While an AUSA Jim served in the 

appellate and criminal trial divisions of the SDFL and in 1988 

was appointed by the United States Attorney as Chief of the 

Narcotics Division for the SDFL. He was one of the four AUSA’s 

who prosecuted Panamanian Dictator Manuel Noriega. In 1992, 

Attorney General William Barr appointed him as the Acting 

United States Attorney for the Southern District of Florida. 

Attorney General Janet Reno appointed him in 1994 to be the 

vi Current Instructors
law enforcement chairman of the Joint Intelligence Community 

& Law Enforcement Task Force and to serve as her Counsel for 

Intelligence Policy in which position he oversaw the DOJ’s 

Foreign Intelligence Surveillance Program. Mr. McAdams may 

be contacted at (912) 554-4215 or james.mcadams@fletc.

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 

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. 

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 

Current Instructors vii
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.

Meggan Sullivan is a licensed attorney in Virginia. There, her 

practice consisted of positions as an Assistant Public Defender 

and private criminal defense attorney. She represented clients 

in most crimes including the production and distribution of 

various drugs, conspiracy, the production of child internet 

pornography, violent crimes including first and second degree 

homicides and malicious wounding, tax and credit fraud, thefts 

and sexual assault. She has also earned a position on the 

Criminal Justice Act Panel in the Middle District of Tennessee 

and is qualified to represent indigent persons in federal court 

charged with all forms of federal criminal violations. She 

volunteers her time with End Slavery Tennessee and has 

testified and lobbied to have the Tennessee legislature pass 

some of the country’s toughest statutes against sex trafficking. 

Those efforts included adding sex trafficking as a crime 

included the state’s wiretapping statutes. Meggan received her 

B.A. in Political Science from Furman University in Greenville, 

SC and her J.D. from Nova Southeastern University in Ft. 

Lauderdale, FL. She is licensed to practice law in the 

jurisdictions of Virginia and Tennessee. Ms. Sullivan can be 

contacted at Meggan.Sullivan@fletc.dhs.gov. 

viii Current Instructors
Paul Sullivan is a graduate of Creighton University School of 

Law (J.D.) and Buena Vista University (B.A.). He served as a 

police officer for the City of Leawood, Kansas before attending 

law school and becoming a prosecutor in Nebraska. In 2010, 

he accepted a position working in Liberia, West Africa, where he 

worked with the Ministry of Justice to train judges, magistrates, 

and police officers on behalf of the U.S. Department of State. In 

2013, Paul was a Prosecution Justice Advisor as part of 

Combined Joint Interagency Task Force-435, in the National 

Security Courts, Parwan, Afghanistan. Paul was an Advisor to 

Afghan Prosecutors in over three-hundred trials involving 

defendants charged with terrorism related offenses under the 

Laws of Armed Conflict (LOAC). Mr. Sullivan can be reached at 

(912) 267-2611 or Paul.Sullivan@fletc.dhs.gov.

Edmund Zigmund is an Attorney-Advisor in the Legal Division. 

Prior to that, he served as a Law Enforcement Program 

Specialist in the Office of State and Local Training and as a 

Branch Chief in the Training Management Division. Before

joining the FLETCs, Mr. Zigmund served as a Police Officer, 

Sergeant, and Detective Lieutenant with the Wilkes-Barre City 

Police Department, PA. He was an Assistant District Attorney in 

Lackawanna and Cumberland Counties, PA and a Police Legal 

Instructor at the North Carolina Justice Academy. Mr. Zigmund 

has a B.A. in Criminal Justice (cum laude) from King's College, 

Wilkes-Barre PA; has completed some graduate study in 

Criminal Justice at Marywood College, Scranton, PA; holds a 

J.D. (magna cum laude) from Widener University School of Law, 

Harrisburg, PA; and is nearing completion of a Master’s Degree 

in Adult and Continuing Education at Kansas State University. 

Mr. Zigmund can be contacted at (912) 280-5447 or 

Edmund.Zigmund@fletc.dhs.gov.

Current Instructors ix
Artesia, New Mexico

David Hall is a graduate of the University of Central Oklahoma 

(B.A.) and the University of Oklahoma (J.D.). He has 

prosecuted and defended cases in the state and federal courts 

of Oklahoma. In addition, he has served as the prosecuting 

attorney for the Citizen Potawatomi Nation of Oklahoma and for 

the Seminole Nation of Oklahoma. Mr. Hall can be contacted at 

(575) 748-8105 or david.hall@fletc.dhs.gov. 

Charleston, South Carolina

James P. Stack is a graduate of The Citadel (B.S. and M.B.A.). 

After 20 years of military service and graduation from the 

University of South Carolina School of Law (J.D.) he began his 

legal career as a judicial law clerk for the Honorable Daniel 

Pieper of the Ninth Judicial Circuit in South Carolina. 

Subsequently, Mr. Stack served in the Ninth Circuit Solicitor’s 

Office as a Managing Assistant Solicitor. His responsibilities 

included prosecution of crimes ranging from murder to drug 

trafficking to driving under the influence. He also supervised 

and represented the state in the estreatment of bond program. 

Mr. Stack can be contacted at (843) 566- 8558 or 

james.p.stack@flectc.dhs.gov.

x Current Instructors
Table of Contents

Chapter 1 – Authority and Jurisdiction .............. 1

Chapter 2 – Conspiracy and Parties .................. 21

Chapter 3 – Constitutional Law ........................ 37

Chapter 4 – Courtroom Evidence...................... 65

Chapter 5 – Courtroom Testimony ................... 99

Chapter 6 – Criminal Law ................................117

Introduction to Criminal Law ..................121

Sub Part A - Assault .................................129

Sub Part B - Bribery.................................133

Sub Part C - Federal Firearms Offenses ....137

Sub Part D - Federal Drug Offenses ..........147

Sub Part E - The Entrapment Defense ......151

Sub Part F - False Statements..................157

Sub Part G - Theft, Embezzlement

 and Conversion....................161

Sub Part H - Federal Fraud Statutes.........169

Chapter 7 – Electronic Law and Evidence ........183

Chapter 8 – Federal Court Procedures .............217

Chapter 9 – Fourth Amendment ......................275

Chapter 10 – Government Workplace

 Searches ....................................393

Table of Contents xi
Table of Contents

Chapter 11 – Identification Procedures............409

Chapter 12 – Interrogation and Interviews.......415

Chapter 13 – Officer Liability ..........................449

Chapter 14 – Searching and Seizing Computers 

 and other Electronic Devices......477

Chapter 15 – Use of Force ...............................501

 

xii Table of Contents
Chapter One

Authority and Jurisdiction of

Federal Land Management Agencies

1.1 Introduction.............................................................. 2

1.2 Sources of Authority and Jurisdiction ....................... 2

1.3 Types of Jurisdiction................................................. 3

1.4 Territorial Jurisdiction.............................................. 4

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

(a) Exclusive Jurisdiction ............................................... 5

(b) Concurrent Jurisdiction ............................................ 5

(c) Proprietary Jurisdiction............................................. 5

1.4.2 Special Maritime and Territorial Jurisdiction.............. 7

1.4.3 Agency-Specific Territorial Jurisdiction ...................... 8

1.5 Subject-Matter Jurisdiction and Statutory Arrest 

Authority.................................................................. 9

1.5.1 Specific Statutory Subject-Matter Jurisdiction and 

 Statutory Arrest Authority ......................................... 9

1.5.2 Cross-Designation of Officers ................................... 10

1.5.3 Jurisdiction Over State Offenses .............................. 11

1.5.4 Assimilative Crimes Act - 18 U.S.C. § 13 (2012)........ 11

1.5.5 State Peace Officer Authority.................................... 11

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

1.5.7 Citizen’s Arrest or Detention Authority ..................... 12

1.6 The Code of Federal Regulations (CFR) .................... 13

1.6.1 Enabling Legislation................................................. 13

1.7 Significant Statutory Provisions .............................. 14

1.7.1 Lacey Act ................................................................. 14

1.7.2 Endangered Species Act........................................... 15

1.7.3 Marine Mammal Protection Act (MMPA) of 1972 ....... 15

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

1.7.5 Bald Eagle Protection Act of 1940 ............................ 16

1.8 Administrative Inspection Authority ....................... 17

1.8.1 36 C.F.R. § 3.4 (2012) .............................................. 17

Authority and Jurisdiction of Federal Land Management Agencies 1
1.1 Introduction

This chapter examines the sources and scope of the authority 

and jurisdiction of federal land management law enforcement.

The chapter addresses both territorial and subject matter 

jurisdiction. The chapter also examines jurisdictional issues 

related to selected offenses that involve federal land 

management agencies.

1.2 Sources of Authority and Jurisdiction

The basic source and foundation 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 (2012). If a law passed by Congress changes many 

individual statutory provisions scattered throughout the U.S. 

Code, 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 congressional statutes authorize specific federal agencies 

to adopt regulations to implement the agency’s statutory 

2 Authority and Jurisdiction of Federal Land Management Agencies
authority and responsibilities. This is called “enabling

legislation” because it enables and authorizes the agency to 

adopt regulations for those areas specified in the statute. 

Without such enabling legislation, the agency would not have 

authority to adopt regulations. Some of these regulations 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 (2012).

Occasionally, other sources of authority, such as treaties, may 

apply, particularly in relation to Indian lands and jurisdiction 

over coastal waters.

1.3 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 broad general subject matter jurisdiction 

over all federal criminal offenses, while others have limited 

subject matter jurisdiction over certain offenses only.

Authority and Jurisdiction of Federal Land Management Agencies 3
1.4 Territorial Jurisdiction

The concept of territorial jurisdiction has three components or 

ramifications in federal law. The first type of territorial 

jurisdiction relates to what authority the federal government 

has over the particular location involved. The second type 

relates to crimes that must occur within the special maritime 

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

third type of territorial jurisdiction relates to geographic 

limitations placed upon an agency’s law enforcement officers by 

legislation or agency regulations [“agency-specific territorial 

jurisdiction”].

1.4.1 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 

to itself 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 explained 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. 

4 Authority and Jurisdiction of Federal Land Management Agencies
(a) Exclusive Jurisdiction

In areas of exclusive jurisdiction, only the federal government 

has law enforcement authority. This occurs when the federal 

government has received, through one of the methods outlined 

above, all of the authority of the state on a certain tract of land 

contained within the state’s borders. With exclusive jurisdiction, 

no reservations have been made to the state, except that state 

and local officers have the authority to serve criminal and civil 

process, such as arrest warrants, resulting from activities that 

occurred outside the area of exclusive jurisdiction.

(b) 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.

(c) 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.

Authority and Jurisdiction of Federal Land Management Agencies 5
Two kinds of federal statutes may be enforced even in a 

proprietary jurisdiction:

1. 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 

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. §§ 3371-3378 (2012) (Lacey 

Act); 18 U.S.C. § 3 (2012) (Accessory After the Fact); 18 U.S.C. § 

201 (2012) (Bribery of Public Officials and Witnesses); 18 U.S.C. 

§ 371 (2012) (Conspiracy); and 18 U.S.C. § 641 (2012) 

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

2. Statutes and Regulations 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 

(2012) (Hunting, Fishing, Trapping; Disturbance or Injury on 

Wildlife Refuges); 18 U.S.C. § 1852 (2012) (Cutting or Removing 

or Transporting Timber on Public Lands of United States); 18 

U.S.C. § 1853 (2012) (Cutting or Injuring Trees on Land 

Reserved or Purchased by the United States or Upon Any Indian 

Reservation); and 18 U.S.C. § 1854 (2012) (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 (2012) (Trespassing and Vandalism); and 36 

C.F.R. § 4.23 (2012) (Operating a Motor Vehicle Under the 

Influence of Alcohol or Drugs). If an offense specifies that the 

crime must be committed in a certain type of federal land and 

the crime was not committed in that type of federal land, that 

offense is not triable in federal court.

6 Authority and Jurisdiction of Federal Land Management Agencies
1.4.2 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 (2012) defines these places. 

Several descriptive categories are included within the definition, 

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

Any lands reserved or acquired for the use of the United States, 

and under the exclusive or concurrent jurisdiction thereof, or 

any place purchased or otherwise acquired by the United States 

by consent of the legislature of the State in which the same 

shall be, for the erection of 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.

Authority and Jurisdiction of Federal Land Management Agencies 7
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.

1.4.3 Agency-Specific Territorial Jurisdiction 

The third category of territorial jurisdiction is agency- specific 

territorial jurisdiction. Some criminal statutes specifically 

prohibit crimes on certain federal lands. For example 18 U.S.C. 

§ 41 (2012) prohibits unauthorized hunting in wildlife refuges. 

As discussed below in the section concerning the Code of 

Federal Regulations [C.F.R.], Congress can also pass enabling 

legislation to authorize an agency to adopt regulations 

concerning the land it controls. If, and only if, Congress passes

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. §§ 

1, 1a-6 (2012).

• 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. §§ 551, 559, 559c, 559d (2012).

• 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) (2012).

• The Bureau of Reclamation has jurisdiction over offenses 

that occur within a Reclamation project or on 

Reclamation lands. 43 U.S.C. § 373b (2012).

8 Authority and Jurisdiction of Federal Land Management Agencies
• 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) (2012).

• The territorial jurisdiction of Department of Defense Land 

Management Enforcement Officers is determined by DOD 

directives or other regulations.

1.5 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. For example, Tennessee 

Valley Authority (TVA) officers are empowered to “maintain law 

and order and protect persons and property” “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.” They are also authorized to arrest persons fleeing 

TVA lands or facilities. 16 U.S.C. § 831c-3 (b) and (c) (2012).

1.5.1 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 

Authority and Jurisdiction of Federal Land Management Agencies 9
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. 

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) (2012). 

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 (2012). 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.

1.5.2 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 crosssworn. Second, there must be an agreement between the two 

agencies concerned. For example, a TVA officer may be crosssworn 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 

10 Authority and Jurisdiction of Federal Land Management Agencies
federal agency personnel to enforce Forest Service laws and can 

permit Forest Service personnel to assist other federal agencies 

pursuant to appropriate agreements. 16 U.S.C. § 559g (2012).

1.5.3 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.

1.5.4 Assimilative Crimes Act - 18 U.S.C. § 13 (2012) 

The Assimilative Crimes Act sometimes adopts and applies state 

law to conduct occurring on federal lands. Three criteria must 

be met:

1. The United States has exclusive or concurrent 

 Jurisdiction;

2. There is no federal law covering the conduct; and

3. 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.

1.5.5 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 

Authority and Jurisdiction of Federal Land Management Agencies 11
states, the offense must be committed in the officer’s presence. 

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

from the federal officer. Every state is different. It is important 

to know the law of the particular state in which the officer is 

working to determine whether state peace officer status exists. 

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.

1.5.6 Cross-Designation as State or Local Officer

Officers 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.

1.5.7 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.” 

Officers must know the law of the particular state in which they 

are working to determine whether citizen’s arrest or detention 

authority exists. 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 

12 Authority and Jurisdiction of Federal Land Management Agencies
Handbook. In sum, arresting under citizen’s arrest powers is a 

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

1.6 The Code of Federal Regulations (CFR)

1.6.1 Enabling Legislation

Unless 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) (2012). 

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 

Authority and Jurisdiction of Federal Land Management Agencies 13
authorized by this 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 

(2012).

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 rulemaking 

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 maximum punishment for violation, 

regardless of the punishment under the state law.

1.7 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. 

1.7.1 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 any 

activity involving the harvest of highly migratory species. 16 

U.S.C. §§ 3371-3378 (2012. 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 

14 Authority and Jurisdiction of Federal Land Management Agencies
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) (2012). 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.

1.7.2 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 – 1544 (2012). 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 NMFS 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) (2012)).

1.7.3 Marine Mammal Protection Act (MMPA) of 1972

The MMPA prohibits, with certain exceptions, the taking 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. §§ 1361 - 1389 

(2012). 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 

Authority and Jurisdiction of Federal Land Management Agencies 15
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) (2012)). 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) (2012)). 

1.7.4 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 – 470mm (2012). 

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) (2012)). The Indian Arts and 

Crafts Act (18 U.S.C. §§ 1158, 1159 (2012)) criminalizes 

counterfeiting the Indian Arts and Crafts Board trademark (18 

U.S.C. § 1158 (2012)) and falsely representing or suggesting 

that goods are an Indian product (18 U.S.C. § 1159 (2012)). 25 

U.S.C. § 305d (2012) allows the Board to “refer an alleged 

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

officer for appropriate investigation,” 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.” 

1.7.5 Bald Eagle Protection Act of 1940

This law protects the bald eagle (the national emblem) and the 

golden eagle by prohibiting, except under certain conditions, the 

taking, possession and commerce of such birds. Rewards are 

provided for information leading to arrest and conviction for 

violation of the Act. 16 U.S.C. §§ 668-668d (2012). The bald 

16 Authority and Jurisdiction of Federal Land Management Agencies
and golden eagle are actually protected by two acts of Congress: 

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

668 (2012)) and the Migratory Bird Treaty Act of 1918 (MBTA)

(16 U.S.C. §§ 703-712 (2012)). The Department of the Interior 

has the primary responsibility for enforcement of this act. 

Enforcement authority may be delegated also to state fish and 

wildlife authorities, but notably not to other federal agencies. 

16 U.S.C. § 668b (2012).

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. 

1.8 Administrative Inspection Authority

If authorized by statute or regulation, federal agencies 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.

1.8.1 36 C.F.R. § 3.4 (2012) 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 lifesaving or 

firefighting devices, in an overloaded or other 

unsafe condition, as defined in United States Coast 

Authority and Jurisdiction of Federal Land Management Agencies 17
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 

junk yards are commercial premises of a highly-regulated 

industry. In Burger, the three requirements were described as 

follows:

1. There must be a substantial governmental interest.

2. The warrantless inspections must be necessary to 

 further the substantial government interest.

3. 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 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. However, when an inspection is conducted as a 

18 Authority and Jurisdiction of Federal Land Management Agencies
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 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.

Authority and Jurisdiction of Federal Land Management Agencies 19
NOTES

20 Authority and Jurisdiction of Federal Land Management Agencies
Chapter Two

Conspiracy and Parties

2.1 Introduction – Conspiracy ........................................ 22

2.2 The Statute: Title 18 U.S.C. § 371 ............................ 23

2.2.1 The Elements.......................................................... 24

(a) Two or More Persons ............................................... 24

(b) Knowledge and Intent.............................................. 25

(c) The Agreement ........................................................ 26

(d) Unlawful or Fraudulent Means or Objective............. 27

(e) The Overt Act .......................................................... 27

2.3 The Law of Conspiracy.............................................. 28

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

2.3.2 Pinkerton Theory of Vicarious Liability .................... 29

2.3.3 Late Joiners to a Conspiracy ................................... 29

2.3.4 Withdrawal from a Conspiracy ................................ 30

2.3.5 Statute of Limitations - 18 U.S.C. § 3282 ................ 31

2.3.6 Venue ..................................................................... 31

2.4 Introduction – Parties to Criminal Offenses .............. 32

2.5 Aiding and Abetting - 18 U.S.C. § 2(A)....................... 32

2.6 Causing the Commission of a Crime-18 U.S.C. § 2(b). 33

2.7 Accessory After The Fact - 18 U.S.C. § 3................... 33

2.8 Misprision of Felony - 18 U.S.C. § 4 .......................... 34

Conspiracy and Parties 21
2.1 Introduction – Conspiracy

The crime of conspiracy was created because of the inherent 

dangers that are created 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 another or others to violate the law, those 

persons are less likely to change their minds. When just one

individual makes a solitary decision to violate the law, that 

individual is more likely to reassess his or her decision or 

simply change their mind. Often their conscience gets the best 

of them and they have a change of heart. However, when there 

are two or more individuals involved, they reinforce each other, 

thus there is generally little likelihood that they will change 

their mind or reassess their decision. Once a conspiracy is

formed, there is the danger it will spin out of control, as

members of the conspiracy recruit others to join their 

enterprise, and thus it becomes more dangerous and difficult to

immobilize. For these reasons, the identification and targeting 

of multi-defendant criminal enterprises is essential to 

successful law enforcement.

Conspiracy statutes can be used to great advantage by criminal 

investigators. Some of the advantages include the ability to 

investigate beyond the first layer of the criminal enterprise, 

while allowing a jury to see the big picture behind a given 

criminal act. It also enables investigators to be proactive and

even prevent substantive offenses, while still being able to 

charge felony criminal conduct. Disadvantages to conspiracy 

charges are highlighted by time-consuming investigations and 

difficulties dealing with witnesses, who are often coconspirators. 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 who come together to strengthen a criminal 

enterprise. This chapter provides a basic working knowledge of 

conspiracy law.

22 Conspiracy and Parties
2.2 The Statute: Title 18 U.S.C. § 371

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, which states:

If two or more persons conspire either to commit 

any offense against the United States, or to defraud 

the United States, or any agency thereof in any 

manner or for any purpose, and one or more of 

such persons 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 

incarceration for 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.

Conspiracy and Parties 23
2.2.1 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:

 1. Two or more persons;

 2. Intentionally;

 3. Agree;

 4. To violate federal law or defraud the United States; 

 5. Commit an overt act in furtherance of the 

 agreement.

Once these elements have been met, the crime of conspiracy is 

complete. It is important to note, once any co-conspirator 

commits an overt act in furtherance of the agreement, all coconspirators may be prosecuted for conspiracy whether or not 

they know about the overt act, or even if they take no further 

steps to accomplish their ultimate goal.

(a) 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 conspire with himself or 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 as well.

Co-conspirators need not meet and 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 

24 Conspiracy and Parties
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 to the conspiracy involved at all times, the

conspiracy continues, even if the members change and the 

original members have withdrawn and are no longer involved in 

the conspiracy.

(b) Knowledge and Intent

The government must prove that the defendant had knowledge

of the conspiracy and intended to participate in it.

(1) 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.

(2) 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, 

Conspiracy and Parties 25
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.

(c) The Agreement

The essence of any conspiracy is the agreement. With 

conspiracy, the mere agreement to violate the law or defraud 

the United States becomes criminal, once an overt act in 

furtherance of that agreement is committed by a co-conspirator. 

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 helps

to establish a defendant’s willing participation. However, mere 

presence at the scene is by itself not enough to establish an 

agreement. An individual can be present with others that are 

known to be co-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. 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 or helping without joining in the agreement are 

common defenses to conspiracy charges. Efforts must be made 

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

shown directly by co-conspirators’ testifying about the 

defendant’s role in the organization or indirectly by 

documenting a series of acts or events that demonstrate that 

the defendant acted in concert with and therefore must have 

been in agreement with other members of the conspiracy.

26 Conspiracy and Parties
(d) 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

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

defrauding the United States. If neither the objective nor the 

means to accomplish the objective violate federal law or defraud 

the United States, a prosecution under § 371 is not possible. 

Note that the objective of the conspiracy does not have to be a 

crime. It is sufficient to show that the 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.

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 complete the moment the first overt act in 

furtherance of the agreement is committed by a co-conspirator.

(e) The Overt Act

Once an agreement has been made, one of the conspirators 

must commit an “overt act” in furtherance of the agreement to 

complete the crime of conspiracy. 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 offense of

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

advancing or helping the conspiracy. 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 

Conspiracy and Parties 27
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 to the agreement, including those who join the 

conspiracy after it has begun. The overt act must be committed 

by a member of the conspiracy and must occur after the 

agreement. The government may not rely on acts committed 

before the agreement to complete the conspiracy.

The overt act need not be a criminal act. 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 (the bank robbery) is actually 

committed, that offense may be used as the overt act necessary 

to complete the conspiracy. Thus, 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. 

2.3 The Law of Conspiracy

In addition to the elements to be proved in conspiracy cases, 

there is significant law that officers should know when 

undertaking a conspiracy investigation. The following sections 

provide additional legal principles to guide their investigations.

2.3.1 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 (offenses committed that

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 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 

28 Conspiracy and Parties
jeopardy challenge when both are charged using the exact same 

evidence. Thus, if there is a conspiracy to rob a bank and the 

bank is ultimately robbed, the offense of conspiracy to rob the 

bank and bank robbery can both be charged.

2.3.2 Pinkerton Theory of Vicarious Liability

Conspirators are criminally responsible for the reasonably 

foreseeable acts of any co-conspirator that are committed while 

they are members of the conspiracy and that are 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 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 co-conspirator 

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. The lesson regarding conspiracy that most criminals learn 

the hard way is that they must choose their co-conspirators 

wisely, because the reasonably foreseeable act of a coconspirator is the act of all, when the act is committed in 

furtherance of the agreement. 

2.3.3 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, but 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 coConspiracy and Parties 29
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.

2.3.4 Withdrawal from a Conspiracy

Just as the law recognizes that individuals may join a 

conspiracy after it begins, the law also recognizes that 

conspirators 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 conspirator 

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 

conspirator or law enforcement personnel. Withdrawal is an 

affirmative defense, which means the burden is on the 

defendant to prove that he has withdrawn.

If a conspirator validly withdraws from a conspiracy, the statute 

of limitations (explained below) on the conspiracy charge for 

that person 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 a conspiracy charge.

30 Conspiracy and Parties
2.3.5 Statute of Limitations - 18 U.S.C. § 3282

The statute of limitations for 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.

2.3.6 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 committed in furtherance of the 

conspiracy 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.

Conspiracy and Parties 31
2.4 Introduction – Parties to Criminal Offenses

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 officers. All of these persons are known 

as “parties” to the offense.

2.5 Aiding and Abetting - 18 U.S.C. § 2(A)

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, by itself, create criminal 

liability as 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.

32 Conspiracy and Parties
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.

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. The 

offense that was committed can be a felony or a misdemeanor. 

2.6 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.

2.7 Accessory After The Fact - 18 U.S.C. § 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, providing false or misleading statements to law 

enforcement officers in an effort to assist a principal in evading 

arrest, trial or punishment, may be used to prove the offense. 

Thus, when a family member lies to an officer about the 

whereabouts of a sibling who is involved in a theft of 

Conspiracy and Parties 33
government property in order 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.

There is a distinct difference in punishment between aiding and 

abetting and accessory after the fact offenses. An aider and 

abettor is punished for the offense he aids or abets. However, 

when an individual is convicted for 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.

2.8 Misprision of Felony - 18 U.S.C. § 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.

A defendant accused of being an accessory after the fact must 

34 Conspiracy and Parties
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. Officers should collect all the facts and 

let the Assistant United States Attorney make the charging 

decision.

Conspiracy and Parties 35
NOTES

36 Conspiracy and Parties
Chapter Three

Constitutional Law

3.1 Historical Background .............................................. 39

3.2 Framing the Constitution of the United States ......... 39

3.3 Organization of the Federal Government .................. 40

3.3.1 The Legislative Branch............................................. 40

3.3.2 The Executive Branch .............................................. 41

3.3.3 The Judicial Branch................................................. 41

3.3.4 A System of Checks and Balances............................ 41

3.4 The Constitution and the Bill of Rights .................... 42

3.4.1 First Amendment..................................................... 43

(a) Religion .................................................................... 43

(b) Speech ..................................................................... 44

(c) Peaceful Assembly .................................................... 46

3.4.2 Fourth Amendment................................................... 47

3.4.3Fifth Amendment....................................................... 48

(a) Double Jeopardy ...................................................... 48

(b) Self-Incrimination..................................................... 49

(c) Grand Jury Indictment............................................. 50

(d) Due Process of Law .................................................. 50

3.4.4 Sixth Amendment ..................................................... 50

(a) Speedy Trial ............................................................. 51

(b) Confrontation of Witnesses....................................... 51

(c) Compulsory Process ................................................. 51

(d) Assistance of Counsel............................................... 51

(e) Informed of the Nature and Cause of Charges ........... 51

(f) Venue ....................................................................... 52

3.4.5 Eighth Amendment................................................... 52

3.4.6 Fourteenth Amendment ............................................ 52

3.5 Criminal Justice Components from the Constitution 53

3.6 Controlling Speech Under the First Amendment ....... 53

3.6.1 Generally .................................................................. 53

3.6.2 Government Action ................................................... 54

3.6.3 Expression................................................................ 54

3.6.4 Government Restrictions........................................... 55

(a) Content-Based Restrictions ...................................... 55

(b) Content-Neutral Restrictions in Public Forums......... 56

3.6.5 Unprotected Conduct.............................................. 58

Constitutional Law 37
3.6.6Unprotected Speech................................................... 59

(a) Fighting Words ......................................................... 59

(b) True Threats ............................................................ 61

(c) Advocating Imminent Lawless Action ........................ 62

(d) Creating a Clear and Present Danger ........................ 63

(e) Obscenity ................................................................. 64

38 Constitutional Law
3.1 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 reserved 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.

3.2 Framing the Constitution of the United States

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 federal government. The people are bound 

by the laws of the federal government and the federal 

Constitutional Law 39
government is bound by the provisions and principles of the 

Constitution. 

The Constitution is the source of all federal law. Our federal 

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.

3.3 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.

3.3.1 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.

40 Constitutional Law
3.3.2 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. 

3.3.3 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. All inferior courts are created by an act of 

Congress. The Supreme Court has the power to declare laws 

unconstitutional and is the final authority on matters of 

constitutional interpretation.

3.3.4 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:

• 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.

Constitutional Law 41
• 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. 

3.4 The Constitution and the Bill of Rights

The Constitution provides many safeguards through the checks 

and balances system against an excessively strong and 

potentially abusive central government. However, many 

scholars speculate the Constitution would not have been 

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

new government would be the passage of 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.

42 Constitutional Law
3.4.1 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. 

(a) 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 

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 

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.

Constitutional Law 43
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.

(b) 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:

1. 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 found 

below).

2. Advocating Imminent Lawless Action

Historically, the people have not only criticized the United 

States, but some have advocated its laws be ignored and 

government overthrown. Sometimes called political speech, 

advocacy of this nature in public forums is protected under the 

First Amendment, unless it is directed to incite or produce 

imminent lawless action and is likely to incite or produce such 

action.

3. Fighting Words

Fighting words are words that tend to incite an immediate 

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

44 Constitutional Law
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 such as law 

enforcement officers. 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 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.

4. 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 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. 

Constitutional Law 45
5. 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. 

6. 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.

(c) 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-public 

forums. The Federal Law Enforcement Training Centers 

(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. Public forums include public 

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

46 Constitutional Law
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 obtain 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.

3.4.2 Fourth Amendment

The Fourth Amendment prohibits unreasonable government 

searches and seizures. These protections 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 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 the U.S. 

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.

Constitutional Law 47
Government 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; or when the government 

trespasses on private property with the intent to obtain 

information. The Fourth Amendment does not regulate 

searches by private citizens. To be reasonable under the Fourth 

Amendment, government officers may be required to get a 

warrant supported by probable cause.

3.4.3 Fifth Amendment

Many concepts covered under the Fifth Amendment will be 

addressed in later legal courses, but several terms deserve 

explanation.

(a) 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. Once the accused is acquitted, the same sovereign 

cannot retry the defendant for the same crime, even if he 

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.

48 Constitutional Law
confesses to his guilt or new evidence is found. The following 

situations, however, are NOT double jeopardy:

1. Dual Sovereignty

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

sovereigns (state and federal), 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 court.

2. 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.

 

3. 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. 

4. 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.

(b) Self-Incrimination

The self-incrimination clause of the Fifth Amendment is covered 

in depth in a following chapter, but some general observations 

are appropriate. While the Fourth Amendment concerns 

Constitutional Law 49
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.

(c) Grand Jury Indictment

All “infamous” crimes must be prosecuted by grand jury 

indictment. “Infamous” means felony offenses.

(d) 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. 

3.4.4 Sixth Amendment

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 defence. 

50 Constitutional Law
Many of the federal criminal procedural rules have their origins 

in the Sixth Amendment. It is the basis for several important 

rights:

(a) 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. 

(b) 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.

(c) Compulsory Process

The Sixth Amendment provides the defendant with the power to 

subpoena witnesses in his behalf, thus balancing the 

prosecution’s power to subpoena witnesses against the accused.

(d) Assistance of Counsel

The defendant has a Sixth Amendment right to assistance of 

counsel regarding the offenses with which he is charged. 

(e) 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. 

Constitutional Law 51
(f) 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.

3.4.5 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.). 

3.4.6 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.

EIGHTH AMENDMENT

Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted.

52 Constitutional Law
3.5 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.

The remainder of this chapter focuses and expands on First 

Amendment issues of particular interest to Land Management 

Students.

3.6 Controlling Speech Under the First Amendment

3.6.1 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 below. Rights of 

expression are greatest in public forums as these are the places 

where the people have traditionally exercised their First 

Amendment rights. 

Constitutional Law 53
3.6.2 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, the First 

Amendment 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 officer violates the First Amendment. 

If a state law enforcement officer does so, he or she 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.

3.6.3 Expression

The First Amendment rights of freedom of speech or of the 

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

grouped together and called freedom of expression. The First 

Amendment protects the people from unreasonable government 

restrictions expressing their thoughts and ideas.

The people have expressed themselves through the written 

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

The First Amendment protects ideas. It is not the government’s 

place to control ideas because they are wrong, offensive, or antiAmerican. In essence, the Constitution gives the people the 

right to express their ideas. Those ideas are protected unless 

shown likely to produce a clear and present danger of serious 

54 Constitutional Law
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. 

3.6.4 Government Restrictions

Historically, the government has attempted to restrict 

expression for two reasons.

(a) Content-Based Restrictions

The government may not approve of 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 

recipient. 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 

Constitutional Law 55
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.

Finding government action content-based is normally its death 

blow. In strictly scrutinizing such action, the court will require 

the government to prove that restricting the idea not only serves 

a compelling state interest, but is also narrowly drawn to 

achieve that end. Of course, averting violent clashes between 

two competing crowds (the Nazis and the Jews) is a compelling 

state interest. That, however, is not enough. The government 

must also show that the state interest is not achievable through 

some alternative other than restricting the message. For 

example, if the government can control the crowd to avert 

violence, the restriction is not narrowly drawn, and the court is 

likely to strike the restriction down.

The following are examples of unconstitutional, content-based 

government restrictions intended to control the communicative 

impact on the recipient.

• A Texas statue that prohibited the desecration of a 

state or national flag in a way which seriously 

offends one or more persons likely to observe the 

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. 

(b) Content-Neutral Restrictions in Public Forums

The second reason the government may attempt to restrict 

expression has nothing to do with the speaker’s message. 

Content-neutral restrictions seek to avoid some evil that is 

56 Constitutional Law
unconnected to the speaker’s message. Because they are not 

aimed at controlling ideas, content-neutral restrictions receive 

less scrutiny and are much more likely to pass constitutional 

muster.

Content-neutral restrictions allow the government to control 

expression in public forums. There are three potential forums 

or places for expression – private property, non-public forums, 

and public forums. A speaker does not have a First 

Amendment right to express his views on another’s private 

property. A grocery store owner, for example, can stop an antiwar activist’s speech in his store. If the activist refuses to leave, 

the owner can sue or seek to prosecute for trespassing.

Non-public forums are under government control, but are not 

open for public expression. Military bases are non-public 

forums. The Federal Law Enforcement Training Centers

(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 traditionally include public 

streets, sidewalks, and parks.

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 obtain a permit that restricts 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 

Constitutional Law 57
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.

3.6.5 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 the cross was burned with the 

intent to intimidate any person or group of persons. 

58 Constitutional Law
The statute distinguishes protective, albeit offensive 

expression (symbols identifying the Ku Klux Klan), 

from criminal conduct (intentional intimidation).

3.6.6 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 

rule that the government may not regulate the message of the 

speaker. 

(a) 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:

• Law enforcement officers had probable cause to 

arrest the defendant for fighting words after the 

defendant faced the victims from a short distance 

and 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. In addition to these facts, the court also 

considered that the night before the defendant had 

brandished a knife toward the victims, which 

increased the chance for violence. Even though the 

victims exercised restraint, the court found that a

reasonable onlooker could have believed the 

Constitutional Law 59
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

As stated above, the fighting words doctrine is at its narrowest, 

if it exists at all, with respect to by speech directed at public 

officials such as law enforcement officers. Officers are expected 

to exercise a higher degree of restraint than the average citizen. 

Americans have a constitutional right to criticize their 

government and government officials. 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 from 

actual interference with law enforcement activities. 

A U.S. Park Service ranger was in the process of 

making an arrest, when the defendant , who was an 

onlooker, yelled statements of police brutality, “f---

this, f--- that, and this is f---ked.” After the ranger 

told the defendant to back up, 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.

60 Constitutional Law
(b) True Threats

While the people may criticize, they may not threaten. Federal 

statutes that proscribe true threats are:

• 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....” The statute 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 

Constitutional Law 61
fact, is not an element. However, an utterance in jest or 

conditioned on a variable that cannot occur (being 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--.”

• The 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.”

(c) Advocating Imminent Lawless Action

Historically, some 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 

62 Constitutional Law
immediate lawlessness, the crowd must still be receptive to the 

idea. Brandenburg v. Ohio. Some examples follow:

• 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 

Afghanistan violates international law. Unless 

U.S.troops are pulled out of Afghanistan, we are 

going to come back and give President Obama 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 

Afghanistan, a demonstrator yells, “There’s no way 

you’re going to make me go. If they try to send me, 

the first guy I’ll shoot will be Barack Obama.” 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. 

(d) 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 

Constitutional Law 63
a federal building and saying, “There’s a bomb in the building”

is unprotected speech. Likewise, joking with a flight attendant 

on an airline and saying, “I’ve got a bomb” is unprotected 

speech. The bomb threat is punishable under 18 U.S.C. § 844, 

above. The joke (false information) about the bomb on the 

airplane is punishable under 18 U.S.C. § 32.

(e) Obscenity

The Supreme Court defined obscenity as “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.

64 Constitutional Law
Chapter Four

Courtroom Evidence

4.1 Introduction to Courtroom Evidence ........................ 67

4.1.1 Forms of Evidence..................................................... 67

4.1.2 Admissibility ............................................................. 68

4.1.3 Applicability of the Federal Rules of Evidence ............ 68

4.2 The Procedural Stages of a Criminal Trial ................. 68

4.2.1 Suppression Hearings ............................................... 68

4.2.2 Voir Dire ................................................................... 69

4.2.3 Opening Statements by Counsel................................ 69

4.2.4 The Case-in-Chief ..................................................... 69

4.2.5 The Defense Case...................................................... 69

4.2.6 The Rebuttal Case..................................................... 70

4.2.7 Closing Argument ..................................................... 70

4.2.8 The Charge to the Jury ............................................. 70

4.2.9 Sentencing................................................................ 70

4.2.10 Post-Trial Proceedings ............................................. 70

4.3 Relevant Evidence.................................................... 71

4.3.1 The Requirement for Evidence to be Relevant ............ 71

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

4.4 Direct and Circumstantial Evidence ......................... 73

4.5 Lay (And Expert) Witness Testimony......................... 74

4.5.1 Handwriting.............................................................. 75

4.5.2 Voice......................................................................... 75

4.5.3 Emotional Condition ................................................. 75

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

4.6 Witness Credibility and Impeachment ...................... 75

4.6.1 Impeachment............................................................ 75

4.6.2 Factors that Affect Witness Credibility....................... 76

4.7 Privileges.................................................................. 78

4.7.1 Holders of a Privilege................................................. 79

4.7.2 Waiver of Privileges ................................................... 79

4.7.3 Privileges and the Rules of Evidence.......................... 80

4.7.4 The Federal Privileges................................................ 80

4.7.5 Non-Federally Recognized Privileges .......................... 80

4.7.6 The Attorney-Client Privilege ..................................... 81

4.7.7 The Husband-Wife Privileges ..................................... 82

4.7.8 The Psychotherapist-Patient Privilege ........................ 83

Courtroom Evidence 65
4.7.9 The Clergy-Communicant Privilege ............................ 83

4.7.10 The Government-Informant Privilege ....................... 84

4.8 Evidentiary Foundations .......................................... 85

4.8.1 Laying a Foundation ................................................. 86

4.8.2 Marking/Tagging Evidence........................................ 86

4.8.3 Chain of Custody ...................................................... 86

4.8.4 Legal Admissibility and Preserving Trace Evidence .... 87

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

4.9 Business Records and Public Documents .................. 89

4.9.1 The Best Evidence Rule (FREs 1001; 1002) ............... 89

4.9.2 Self-Authentication ................................................... 90

4.9.3 Hearsay and Public Records and Documents

 and Business Records............................................... 91

4.10 Hearsay .................................................................. 91

4.10.1 Hearsay Defined...................................................... 91

4.10.2 Hearsay Examples................................................... 91

4.10.3 Applicability of the Hearsay Rule ............................. 92

4.10.4 Reason for the Hearsay Rule ................................... 92

4.10.5 What is a Statement? .............................................. 92

4.10.6 “Truth of the Matter Asserted” ................................. 92

4.10.7 Non-Hearsay ........................................................... 93

4.10.8 Confrontation of Witnesses...................................... 93

4.11 Exceptions to the Hearsay Rule .............................. 93

4.11.1 “Excited Utterances”................................................ 94

4.11.2 Statements Regarding Medical Diagnosis/Treatment94

4.12 Statements, Reports and Courtroom Testimony ..... 94

4.13 Authenticating Digital Evidence From Computers .. 96

4.13.1 Involving Computer Forensics Experts..................... 96

4.13.2 Evidentiary Issues and Authenticating “Digital

Evidence ................................................................. 96

4.13.3 Admissibility of Digital Evidence.............................. 97

4.13.4 Best Evidence Rule Requirement for an “Original” ... 97

4.13.5 Hearsay Issues........................................................ 97

66 Courtroom Evidence
4.1 Introduction to Courtroom Evidence

Evidence is the backbone of every criminal prosecution. Unless 

evidence is properly collected, preserved, and presented, it 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, law enforcement officers (LEO) must have a general 

appreciation of some fundamentals of the Federal Rules of 

Evidence.

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 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. 

4.1.1 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 that can 

actually be touched or seen. 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_______).

Demonstrative. Demonstrative evidence consists of items that 

Courtroom Evidence 67
demonstrate or illustrate something to the jury such as models, 

charts, and graphic aids.

4.1.2 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 admitted and the jury 

may consider it in deciding the verdict. Such evidence is often 

described as having been received in evidence. If the court 

sustains the objection, the evidence is not admitted and the 

jury may not consider it. Such evidence is often described as 

being inadmissible or suppressed. The judge applies the 

Federal Rules of Evidence (FRE) in deciding whether to admit 

evidence.

4.1.3 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. With the exception of privileges, the FRE do not limit the 

evidence judges may use in deciding whether to issue search 

warrants or arrest warrants.

4.2 The Procedural Stages of a Criminal Trial

4.2.1 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 

68 Courtroom Evidence
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. 

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.

4.2.2 Voir Dire

During voir dire the lawyers question the potential jurors and 

the jury is selected.

4.2.3 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.

4.2.4 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.

4.2.5 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.

Courtroom Evidence 69
4.2.6 The Rebuttal Case

If the defense presents a case, the prosecution may offer 

rebuttal evidence. In the rebuttal case, the prosecution may 

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.

4.2.7 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.

4.2.8 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.

4.2.9 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.

4.2.10 Post-Trial Proceedings

There are many different appeal procedures that the defendant 

may attempt to use.

70 Courtroom Evidence
4.3 Relevant Evidence

4.3.1 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.

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.

4.3.2 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, 

Courtroom Evidence 71
evidence that the defendant had outstanding debts is 

admissible to prove the motive for using a false name on a 

bank loan.

• Intent. Does a prior act tend to prove whether the 

defendant had a specific intent to commit the charged 

offense? One case held that a prior 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.

72 Courtroom Evidence
• 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.

4.4 Direct and Circumstantial Evidence

Direct evidence tends to prove a fact directly and without the 

need to draw an inference or a conclusion about what the 

evidence implies or suggests may also be true or false. 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.

In spite of some common beliefs, 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.

Courtroom Evidence 73
4.5 Lay (And Expert) Witness Testimony

(Not all programs are responsible for the material in this 

section. Students should check their 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 in-court 

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 law 

enforcement training. For example, while most LEOs have had 

training in collecting latent prints and fingerprint identification 

basics, they have insufficient qualifications to testify in court 

about a fingerprint comparison. LEOs who have had 

specialized training, education, knowledge or experience can be 

qualified as experts.

A person who is not an expert witness is called a lay witness. A 

lay witness may give an opinion only when: (a) the opinion is 

rationally based on the witness’ perception and personal 

knowledge, (b) the opinion is helpful to a clear understanding of 

the witness’ testimony or the determination of a fact in issue, 

and (c) the opinion is not one that is based on scientific, 

technical, or other specialized knowledge. In sum, a lay witness 

may offer an opinion about matters that are within the 

74 Courtroom Evidence
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:

4.5.1 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.”

4.5.2 Voice

Identification of a person’s voice (whether hearing it first hand

or from a recording) provided the witness heard the voice before 

under circumstances where he knew who the speaker was.

4.5.3 Emotional Condition

“She looked nervous.” “He was in pain.” 

4.5.4 Not Requiring Scientific or Technical Knowledge

A witness may testify “it looked like blood” because most people 

know what blood looks like. 

4.6 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.

4.6.1 Impeachment

Impeachment is an attack on the credibility of a witness. Any 

witness who testifies can be impeached. The impeachment 

evidence can be offered during cross-examination or can be 

offered through the testimony of another witness. 

Courtroom Evidence 75
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 prosecuting 

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.

4.6.2 Factors that Affect Witness Credibility

(a) 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.

(b) 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 

76 Courtroom Evidence
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.

(c) 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.

(d) Contradiction

A common form of impeachment is to challenge the testimony of 

a witness with with other testimony or evidence to show what 

was said is not true. A witness who says the car was green can 

be impeached with a photo or other evidence showing that the 

car was, in fact, red.

(e) 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.

(f) 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. As discussed in the 

Handbook Chapter “Federal Court Procedures,” the prosecution 

may be required to notify the defense counsel about incidents 

Courtroom Evidence 77
involving an LEO’s dishonesty.

(g) Prior Convictions to Show Untruthfulness (FRE 

 609)

A prior conviction can be used to impeach any witness 

(including the defendant, subject to special limitations 

discussed below) who testifies. A prior arrest cannot be used to 

impeach any witness (including the defendant) who testifies. 

The concept behind permitting prior convictions into 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 is referred to as 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.1 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, though the AUSA should 

be informed about any juvenile adjudications. 

4.7 Privileges

(Not all programs are responsible for the material in this 

section. Students should check their 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 

1 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.” 

78 Courtroom Evidence

 
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.

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 fully and candidly to their lawyers than to 

reveal attorney-client discussions.

4.7.1 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.

4.7.2 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. 

Courtroom Evidence 79
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.

4.7.3 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.

4.7.4 The Federal Privileges

Not all federal privileges are discussed in this text but only 

those that a law enforcement officer will commonly encounter. 

Federal privileges include:

• The 5th Amendment privilege against self-incrimination. 

See Chapter 12 in this Handbook, Legal Issues in 

Interrogations and Interviews, for a detailed analysis of 

this privilege.

• The attorney-client privilege.

• The husband-wife privileges.

• The psychotherapist-patient privilege.

• The government-informant privilege.

• The clergy-communicant privilege.

4.7.5 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) 

80 Courtroom Evidence
accountant-client; (3) journalist-source2; and (4) parent-child.

4.7.6 The Attorney-Client Privilege

The privilege covers communications, written or oral, between 

an attorney and a 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 legal advice.

For the privilege to exist: (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, certain 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, 

2 Some federal courts recognize there may be a qualified (limited) journalistsource privilege.

Courtroom Evidence 81

 
HUSBAND-WIFE 

PRIVILEGES

• Testimonial 

Privilege

• Marital 

Communication 

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 fall under 

the “umbrella” of the privilege. Examples would be a legal 

secretary, paralegal, defense-employed investigator, or 

interpreter working for the attorney. These principles often 

apply to the other kind of privileges discussed as well.

4.7.7 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 spouses to 

communicate with each other and to preserve marriages. There 

are several exceptions to the privileges such as when the 

82 Courtroom Evidence
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.

4.7.8 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.

4.7.9 The Clergy-Communicant Privilege

The Supreme Court has not specifically adopted the clergycommunicant 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 

Courtroom Evidence 83
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 

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.

4.7.10 The Government-Informant Privilege

In the other privileges examined so far, the privileged 

information is what the person holding the privilege 

communicated. The government-informant privilege is different 

in two respects: (a) communication is not privileged, but the 

identity of the informant and information that would reveal the 

informant’s identity is, and (b) the holder of the privilege is not 

the person who made the communication, but the government. 

The privilege exists to encourage people to report crime and 

cooperate with the police.

Not everyone who provides information to the government is an 

informant for the purposes of this privilege. For example, 

victims of crimes and LEOs provide information that does not 

fall within the privilege. All agencies have special rules and 

procedures to follow that bring informants under the umbrella 

of this privilege, and 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.

84 Courtroom Evidence
A judge may order that the identity of a confidential informant 

be revealed. If the judge decides that the informant’s 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.

4.8 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 

Courtroom Evidence 85
evidence using facts collected by the law enforcement officer.

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.

4.8.1 Laying a Foundation

The party 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.

4.8.2 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.

4.8.3 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 new entry is made each time the 

evidence changes custody when someone gives the evidence to 

someone else. A chain of custody does not eliminate the need 

86 Courtroom Evidence
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.

4.8.4 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.

4.8.5 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:

Courtroom Evidence 87
• The foundation witness cannot identify the exhibit at 

trial.

• Unmarked, mismarked or incomplete tags, bags, or chain 

of custody documents.

• Omitted or improperly recorded transfers of evidence on 

chain of custody documents (“broken” chain of custody).

• Failure to wear gloves or other protective garb and 

obliterating trace evidence or contaminating the scene 

(use proper trace evidence handling techniques; bring in a 

specially trained evidence team when necessary).

• Improper storage of evidence such as un-refrigerated 

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).

• Combining separate pieces of evidence found in different 

places into a single collection of evidence.

88 Courtroom Evidence
4.9 Foundations: Business Records and Public Documents

(Not all programs are responsible for the material in this 

section. Students should check their course syllabus.)

4.9.1 The Best Evidence Rule (FREs 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 

of the rule’s concerns have been resolved by technology, the 

rule must be followed.

(a) 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.

(b) “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. LEO 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 contains over objection by counsel. If the original 

Courtroom Evidence 89
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. 

4.9.2 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.” Selfauthenticating records and reports do not require a witness to 

testify and lay a foundation.

(a) Public Records and Documents

The FRE permit documents that are public records to be selfauthenticating 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. LEO do not 

have to personally obtain these records by hand.

(b) Business Records

The FRE permit business records to be self-authenticating 

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 

90 Courtroom Evidence
was not specially generated just for the trial).

4.9.3 Hearsay and Public Records and Documents and 

Business Records

Offering the contents of public records and documents and 

business records for the truth of their contents can be hearsay, 

but there is a specific hearsay exception for them. If there is a 

seal or certificate that complies with the self-authentication 

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 selfauthenticated police reports are still subject to the hearsay rule.

4.10 Hearsay

(Not all programs are responsible for the material in this 

section. Students should check their course syllabus.)

4.10.1 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 (c) the 

out-of-court statement is offered for the truth of the matter 

asserted in the statement.

4.10.2 Hearsay Examples

In each case, the witness wants to offer the quoted statement in 

court.

• “Susan said Bob stole her purse.” (To prove that Bob is a 

thief).

• “John said he saw the green car that night.” (To prove 

there was a green car at the scene).

Courtroom Evidence 91
4.10.3 Applicability of the Hearsay Rule

The hearsay rule applies only to trials. LEO can and often do 

rely on hearsay to develop probable cause, develop reasonable 

suspicion, guide their decisions, and develop leads. Hearsay 

may also be used in criminal complaints and search warrant 

affidavits. 

4.10.4 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.

4.10.5 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.

4.10.6 “Truth of the Matter Asserted”

The third component of the hearsay rule is that the out-of-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 “the victim told me that Joe 

shot him” to prove Joe shot the victim, 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 the victim.

92 Courtroom Evidence
4.10.7 Non-Hearsay

(a) 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.

(b) 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. 

4.10.8 Confrontation of Witnesses

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 by, for example, showing that an exception to the 

hearsay rule applies, it must still be able to produce its 

witnesses. LEOs taking witness statements must document 

how to track those witnesses down for trial.

4.11 Exceptions to the Hearsay Rule

(Not all programs are responsible for the material in this 

section. Students should check their course syllabus.)

If an exception to the hearsay rule applies, the statement is 

admissible. There are many hearsay exceptions, and this text 

will examine only two of them. When taking a statement that 

might be hearsay, the LEO must document the facts and 

Courtroom Evidence 93
circumstances under which the statement was made. This may 

later aid the AUSA in getting the statement admitted at trial 

under a hearsay exception.

4.11.1 “Excited Utterances”

The law recognizes that a “non-testimonial” statement made 

under emotional stress is unlikely to be fabricated. The 

elements of the exception are: (a) the person making the 

statement experienced a startling event, (b) the statement was 

made while the person was under the stress or excitement 

(influence) caused by that event, and (c) the statement was 

about the startling event. For example, while yelling, holding 

their hand over a gunshot wound, and in a high emotional 

state, a victim blurts out, “Joe shot me!” This statement would 

meet the exception for excited utterance.

4.11.2 Statements Regarding Medical Diagnosis/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.

 

4.12 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. Officers should check with the AUSA about whether to 

bring reports or notes to trial.

94 Courtroom Evidence
LEO 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 on-scene 

notes indicate otherwise, the defense can use this 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 nonLEOs 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 opposite party. 

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, the LEO should obtain the item so it will 

be available at trial to refresh the witness’ memory. 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.

Courtroom Evidence 95
4.13 Authenticating Digital Evidence From Computers

(Not all programs are responsible for the material in this 

section. Students should check their course syllabus.)

4.13.1 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. 

4.13.2 Evidentiary Issues and Authenticating “Digital 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.

96 Courtroom Evidence
4.13.3 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 is a substantial step in proving the same 

program will accurately print it out. Many software applications 

embed data regarding when a document was created and 

modified that identifies the computer on which this was done. 

Forensic experts should look for this data.

The government can overcome the claim that the programs are 

unreliable by providing sufficient facts to warrant a finding that 

the records are trustworthy. The defense is afforded an 

opportunity to inquire into the accuracy of those records.

4.13.4 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.3

4.13.5 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 

3 805 F. Supp. 1513, 1517 (D. Haw. 1992).

Courtroom Evidence 97

 
the document is a statement of the defendant, it is excluded 

from the definition of hearsay.) The LEO 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.

98 Courtroom Evidence
Chapter Five

Courtroom Testimony

5.1 Introduction to Courtroom Testimony.....................100

5.2 Stages of a Criminal Trial ........................................100

5.3 Effective Witness Characteristics ............................100

5.3.1 Meeting the Jury’s Expectations..............................100

5.3.2 Characteristics That Jurors Expect of Witnesses .....100

5.4 Essential Law Enforcement Testimonial Skills.........103

5.4.1 Manner of Answers .................................................103

5.4.2 Skills That Make Law Enforcement Officer Testimony 

Convincing ..............................................................103

5.5 Using Statements and Reports When Testifying.......107

5.6 Impeachment during Cross-Examination .................108

5.6.1 Direct Examination, Cross-Examination and ...........108

Impeachment 108

5.6.2 Law Enforcement Officers and Cross-Examination...110

5.6.3 Common Cross-Examination Techniques ................110

5.7 Subjects Not to be Volunteered When Testifying......115

5.7.1 Prior Criminal History .............................................115

5.7.2 Issues Involving Constitutional Rights .....................115

5.7.3 Suppressed Evidence...............................................116

Courtroom Testimony 99
5.1 Introduction to Courtroom Testimony

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 by the court in 

a bench trial. In many criminal trials, the law enforcement 

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

witness’ credibility is crucial to obtaining convictions, it is 

imperative that law enforcement officers are familiar with traits 

and characteristics that can both favorably and adversely 

impact their credibility at trial. 

5.2 Stages of a Criminal Trial

In some programs, Courtroom Testimony includes an EPO on 

stages of a criminal trial. (students should check their syllabus.) 

If the student’s program has this EPO, the material is located in 

Section 4.2 of the Courtroom Evidence chapter of the 

Handbook.

5.3 Effective Witness Characteristics

5.3.1 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. 

5.3.2 Characteristics That Jurors Expect of Witnesses

(a) Tell the Truth

The most important testimonial characteristic of a witness at 

any trial or hearing is to tell the truth. There is no substitute 

for telling the truth. A witness’ 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. 

100 Courtroom Testimony
(b) 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.

(c) Treat the Jury, Judge and Counsel with Respect

Witnesses should treat the jury, counsel and the judge with 

absolute respect. They should not show deference to either the 

government or defense. Witnesses should provide both the 

prosecutor and the defense attorney with the same courtesies 

that they themselves would want to receive. 

(d) 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 inure to the 

benefit the defendant by fogging the memory of the witness. To 

counter this natural tendency, witnesses should thoroughly 

review their notes, reports, case file, etc., that are associated 

with the case. Even visiting the crime scene may prove to be 

helpful. Reviewing physical evidence can help as well. 

Furthermore, it is perfectly permissible for witnesses to review 

their testimony with the prosecutor and actually practice 

answering questions from the witness stand. As the old adage 

goes, proper prior preparation prevents poor performance. 

(e) Be Properly Attired

A witnesses’ credibility can be adversely affected by his or her 

choice of clothing, jewelry as well as by personal grooming 

habits. A common sense axiom is to dress for success. 

Wearing a suit or coat and tie with minimal tasteful jewelry is 

the order of the day. Clothing that is clean, pressed and 

conservative in appearance is appropriate for court 

appearances. Officers are making non-verbal statements in the 

way they dress. It is important to make the right statement.

Courtroom Testimony 101
Most federal courts have court rules indicating what is or is not 

appropriate attire for witnesses. Furthermore, court rules will 

identify those items that are not permitted in court. Some 

federal judges have a penchant for ensuring that witnesses 

learn lessons the hard way via contempt proceedings. This is 

especially true with respect to carrying weapons, cell phones, 

pagers, noise making jewelry, etc. Most judges have little 

patience for law enforcement officers who are less than 

professional in their appearance. 

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 the witness’ 

area of operations), it is not a fashion statement a witness 

wants to make in court. This type of jewelry is not acceptable

when testifying.

(f) Demeanor Counts

Juries and judges consider witness demeanor in evaluating 

credibility (believability). How one approaches the witness 

stand, looks while taking the oath and one’s posture while 

sitting in the witness chair can all have an effect on whether the 

jury or judge will believe the witness. A firm, convincing “Yes, I 

do” in response to the oath makes a positive first impression. 

Witnesses should make a conscious effort to avoid sending 

unwanted messages through nonverbal communications. For 

example, slouching in the witness chair or rolling of the eyes in 

response to a defense counsel question is readily understood to 

be an attempt to ridicule. It is not the act of a professional –

don’t do it.

(g) 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?” Since an 

individual’s life and liberty is at stake, witnesses should not 

provide the defense attorney with the opportunity to imply that 

102 Courtroom Testimony
they believe the matter to be less than serious. Be professional 

at all times.

(h) Avoid a “Bad Attitude”

A clever, superior, or cocky attitude turns people off. Answering 

clearly, succinctly, accurately, and professionally makes your

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

and “superior than thou” attitudes.

(i) 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 while testifying, a witness should 

inform the prosecutor at the earliest opportunity. 

5.4 Essential Law Enforcement Testimonial Skills

5.4.1 Manner of Answers

Professional demeanor and the manner in which a witness

responds to questions are important. They help ensure that the 

jury or judge is convinced of the truth of the testimony. Officers 

should conduct themselves in a professional manner at all 

times and be as forthright as possible in their testimony.

5.4.2 Skills That Make Law Enforcement Officer Testimony 

Convincing

(a) Listen and Answer

Witnesses should listen carefully to the questions asked and 

think about their responses before responding. While answers 

Courtroom Testimony 103
should not be rushed, long delays before answering simple 

questions can lead the jury to question one’s credibility. Use 

common sense to answer questions in a thoughtful,

professional, and forthright manner.

(b) Give Audible Responses

Court reporters take down verbatim testimony. Witnesses that 

nod their head to answer a question cannot be recorded by the 

court reporter. Speak so that the court reporter can record the 

response. Similarly, if using gestures by holding hands apart to 

provide a visual portrayal of size and say, “It was this big,” only 

the comment will be recorded. Witnesses must provide an 

audible response that matches the size they are conveying with 

their hands (“It was about 14 inches long.”) Witnesses should 

speak clearly, intelligibly, and loudly enough so they will be 

heard and understood throughout the courtroom. Monotone 

presentations are far less effective than presentations which

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 only record testimony. 

(c) Do Not Volunteer Information

Witnesses should answer the question that is asked, and 

should not add information that is not requested. Witnesses

should not allow subsequent silence by counsel to lead them to

believe more information is required. This is a common tactic 

used to get witnesses to offer information that was not 

requested. The general rule when testifying is to address the

question asked and then wait for the next question. 

(d) Wait for Rulings on Objections

The witness must stop speaking when counsel objects to a 

question. Allow the judge to rule on the objection. If an 

objection has been overruled, and the witness has forgotten the 

question, he or she should ask counsel to repeat the question. 

If the judge sustains the objection, the witness must say 

104 Courtroom Testimony
nothing further on that subject. Simply wait for the next 

question.

(e) Prosecutorial Assistance

When asked a question that a witness does not like, he or she 

should not look to the prosecutor or others for help. If defense 

counsel’s question is improper, the prosecutor will object. At 

times, there may be tactical reasons that the prosecutor may

want the witness to answer questions that are objectionable. If 

a witness does not understand the question or the question is 

unclear, he or she can ask that the question be repeated or 

rephrased.

(f) Speaking to the Judge

Unless the judge speaks directly to a witness, the witness 

should not address questions or concerns to the judge. If the 

judge does address a witness directly, it is appropriate to 

respond by using the term “Your Honor.” Do not use the term

“Judge.” Address requests to repeat, clarify, or rephrase 

questions to the counsel who asked the question. Address 

requests to refer to witness notes or reports while testifying to 

the examining counsel as well.

(g) Avoid “Cop Talk”

Avoid using legal phrases or law enforcement 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. Officers should simply explain 

in everyday language what they did. If a specific police term is 

used, then the witness should provide a definition or 

explanation as to what it means. Do not assume the jury or 

judge understands the terminology you are using. 

(h) Just the Facts

Witnesses may testify only about matters that are within their

Courtroom Testimony 105
personal knowledge. They can testify to what they observed, 

heard, smelled, tasted, touched, as well as provide an opinion 

based on a rationally based perception. They should not try to 

testify as to what others observed. Let others testify to what 

they observed. Witnesses should not offer an opinion unless 

specifically asked for the opinion. Witnesses must have a basis 

of knowledge based on facts to provide an opinion.

(i) “I Don’t Know”

“I do not know” means that the witness 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.

(j) “I Don’t Recall”

This answer implies the witness once knew the information, but 

at the moment cannot recall it. If true, it is acceptable to say it. 

This answer is not a truthful one if the witness remembers, but 

just did not want to answer the question that is asked.

(k) Positive and Definitive Answers

Give positive, definite answers. Avoid saying, “I think,” or “I 

believe.” What an officer thinks or believes is generally not 

relevant. If an officer does not know, say so. If a witness 

cannot offer a precise answer but can provide an estimate, be 

sure to state that it is only an estimate.

(l) Memorized Testimony

Witnesses should not memorize reports so that they can provide

a verbatim response. Memorized testimony is suspect and is 

generally not believable.

(m) Speak to the Audience

Witnesses should make eye contact with those to whom they

are addressing. Maintaining eye contact with those being

106 Courtroom Testimony
addressed is an intangible human attribute that provides a 

measure of respect to the recipient. By maintaining eye contact 

with the jury, the witness provides deference to the jury, while 

simultaneously establishing credibility. Although eye contact is 

important, witnesses will have to measure the amount of eye 

contact provided to counsel. At trial, when a jury is present, 

the most important group of people in the court that require 

one’s direct attention is the jury. Since the jury is the fact 

finder who makes life altering decisions concerning the 

defendant based on the facts provided, the witness should 

address the jury and not counsel. This will require the witness 

to look at the jury while answering questions of counsel. It is 

not necessary to spend 100% of the time looking at the jury,

because not every answer will warrant that type of effort. 

However, for important aspects of testimony witnesses should 

always address the jury.

5.5 Using Statements and Reports When Testifying

Except for some expert witnesses and other limited 

circumstances, witnesses cannot testify from their reports or 

notes. Officers should check with the prosecutor about whether 

to bring reports or notes to the witness stand. Generally, 

opposing counsel will object if a witness tries to bring 

something to the witness stand. Officers can provide 

notes/reports/etc. to the prosecutor prior to trial. The court 

can allow a witness to refer to them during testimony if the 

prosecutor can lay an appropriate evidentiary foundation during

trial. 

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 on-scene 

notes indicate otherwise, the defense can use the contradiction 

to impeach the witness.

One’s memory can be “refreshed” if a witness forgets while 

testifying. Anything can be used to refresh a witness’ memory.

Sketches, photos, physical objects, reports, notes, and even 

Courtroom Testimony 107
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 will then testify from memory. The report 

or item that was used to refresh memory is neither read nor 

given to the jury. It is used for the sole purpose of allow the 

witness to jog their memory. Notes, reports, statements or 

other writings or things that are used to refresh a witness’ 

memory will be made available to opposing counsel immediately 

after the witness testifies. Normally, opposing counsel uses

them for the purpose of impeachment.

Non-law enforcement officer witnesses may testify at trial, and 

they too may need their memories refreshed. Officers should be 

prepared to obtain the item used to refresh a non-law 

enforcement officer witness’ memory so it will be available at 

trial. 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 Assistant United States Attorney 

need to refresh the witness’ memory.

5.6 Impeachment during Cross-Examination

5.6.1 Direct Examination, Cross-Examination and 

Impeachment

(a) 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.”) 

Generally, 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 allow the 

witness to explain in their own words what happened.

108 Courtroom Testimony
(b) 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. During crossexamination, 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 such as “What happened,” counsel could ask

“Isn’t it true Officer 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 witness’ acts 

appear to be unseemly, crude, self-serving, unprofessional and 

even criminal. Be mindful this type of question can be asked,

and respond to it in a professional manner.

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 presently armed and dangerous and that my safety was in

jeopardy, 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. A frisk is a limited 

search for the sole purpose of locating weapons that could harm 

me. I performed these duties in a professional manner. I 

performed them in accordance with what the law allows me to 

do. I performed them based on the facts known to me at that 

time that indicated that my safety was jeopardized, because of 

what she had done. If you so desire, I would be more than 

happy to explain the facts that led me to believe that your client 

was presently armed and dangerous.” 

Courtroom Testimony 109
(c) 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 

during the impeachment process, the witness’ professionalism 

and integrity are attacked. Regardless of counsel’s method, 

officers must always ensure that they tell the truth. Regardless 

of what happens, remain professional at all times.

(d) Redirect Examination

It is hard for witnesses (especially law enforcement officers) to 

limit themselves to a “yes” or “no” answer and then be denied 

the opportunity to explain their answers. An 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 the 

witness to explain testimony during cross-examination.

5.6.2 Law Enforcement Officers and Cross-Examination

Officers are trained to, and survive by, being in control of the 

scene and the situation. Testifying in court and especially on 

cross-examination can be frustrating for officers, because they 

are in an environment controlled by lawyers. To be properly 

prepared, officers must learn how cross-examination techniques

work. Officers must trust their prosecutor on redirect 

examination will provide them the opportunity to clear up 

confusion caused by defense questions during crossexamination.

5.6.3 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 and be professional in the process of doing 

so.

110 Courtroom Testimony
(a) 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 the witness does not 

know the answer, does not recall the answer, or the question is 

a compound question (two questions combined as 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, the witness may also answer each part of the 

compound question separately. 

(b) Putting Words in the Witness’ Mouth

Trial advocates are trained to “testify for the witness” on crossexamination 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.

(c) The Badgered Witness

Defense counsels know that if a witness, especially a law 

enforcement officer, becomes angry on the witness stand, two 

things can happen. First, the officer focuses on anger and not 

the facts of the case, thereby becoming distracted. Second, the 

officer can appear to be biased which is perceived by the jury as 

lacking the ability to objectively deal with the issues. 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 officers to remain professional at all times.

Courtroom Testimony 111
(d) 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 look at the witness and not say anything after the 

witness has answered, which suggests to the witness that he or 

she should keep talking. Remain silent in the face of this tactic

and wait for the next question.

(e) Pre-Trial Discussions with the Prosecutor

There is nothing improper with having discussed or even 

rehearsed testimony before trial. Rehearsing testimony is 

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. 

(f) 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, the witness should 

respond by saying, “As I stated earlier...” – when responding, do 

not sound sarcastic. Always remain professional.

(g) 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 the witness was both the 

arresting officer and the officer that conducted the search, the 

answer to the question is easy. But if the witness arrested the 

defendant and a partner searched the defendant, it is 

incumbent upon the witness to respond correctly. At trial, 

witnesses quite often fail to recognize that there are two 

questions being asked as one. If a witness does not recognize 

112 Courtroom Testimony
that there are two questions, he or she is playing directly into 

the defense counsel’s hands for subsequent impeachment.

(h) 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’s tempo. Witnesses should speak at their own 

pace when providing truthful and accurate answers. The 

witness controls the pace of the testimony, not opposing 

counsel. The witness is not obligated to follow the defense 

counsels questioning tempo.

(i) Admitting Mistakes

“Have you ever made a mistake?” The answer will of course be 

“Yes.” Do not be afraid to admit mistakes. 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. 

(j) 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. 

(k) Friendly Defense Counsel

The defense attorney may appear friendly to witnesses during 

cross examination. This may lull the witness into becoming 

overly familiar with defense counsel or appear to be less than 

professional. Additionally, if the defense attorney speaks softly 

or in a friendly tone and manner, the witness will often do the 

same. This technique is called mirroring. As a result, the 

witness may not speak up, the jurors may not hear the 

testimony, and as a result, the testimony will be less effective.

Courtroom Testimony 113
(l) Twisting Prior Testimony

The defense attorney may restate a witness’ 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 portray 

the prior testimony accurately and in many cases, may 

intentionally misstate the testimony. If prior testimony has 

been misstated, it is incumbent on the witness to say so.

(m) 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. 

A witness should not be intimidated into admitting an error, 

declaring another officer “wrong,” or losing confidence in 

command of the facts. Just tell the truth!

(n) 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. A witness should review prior statements 

(preliminary hearings, grand jury testimony, motions hearings), 

and listen carefully to all prior statements to determine if the 

current testimony is truly different.

(o) Corrected Statements

“So, you lied (in your report) (in your testimony)?” This 

question arises when there is a mistake in testimony that is 

corrected or there is an irreconcilable difference between 

testimony and a prior statement. Distinguish between a lie or 

being untruthful on one hand, and a mistake on the other. A 

lie or being untruthful is an intentional act. Mistakes are not 

lies. Mistakes are inadvertent, not intentional deceptions.

114 Courtroom Testimony
(p) 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.

5.7 Subjects Not to be Volunteered When Testifying

5.7.1 Prior Criminal History

Unless specifically directed by the Court (or by the counsel

based upon the judge’s ruling), do not volunteer or offer the 

defendant’s prior criminal history. The admissibility of a 

defendant’s criminal history is subject to strict admissibility 

rules best left to the prosecutor to guide the witness by specific 

questions that require precise responses.

5.7.2 Issues Involving Constitutional Rights

Commenting in front of a jury about a defendant’s decision to 

exercise his constitutional right to remain silent or request 

counsel is grounds for a mistrial. A suspect questioned by law 

enforcement in a custodial setting has the constitutional right 

to remain silent and have counsel present during questioning. 

Furthermore, a defendant can exercise a constitutional right to 

simply not talk to the police when not in custody. Commenting 

on the fact that a defendant exercised a constitutional right is 

inherently prejudicial and is a recognized basis for a mistrial or 

reversal of a conviction.

If asked at trial about what happened when the defendant was 

arrested or booked, the witness should testify about what he or 

she did (i.e., “I processed the defendants and turned them over 

to the jail”) without mentioning their Miranda warnings. 

Because this is a problematic area, when in doubt, do not 

mention specific Miranda warnings, the defendant’s invocation 

of the right to silence or invocation of the right to counsel. Wait 

for specific questions to be asked as to the defendant’s 

invocation of rights.

Courtroom Testimony 115
5.7.3 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 for specific limited 

purposes, no witness should 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 the witness is specifically asked about evidence

that has been suppressed, do not mention it. Wait for specific 

questions from counsel before addressing evidence that has 

been suppressed.

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.

116 Courtroom Testimony
Chapter Six

Criminal Law

6.1 Introduction to Criminal Law.................................121

6.1.1 What is a Crime? ....................................................121

6.1.2 Elements of Criminal Statutes.................................121

6.1.3 Felonies and Misdemeanors ....................................124

6.1.4 Attempts.................................................................125

6.1.5 Jurisdiction and the Assimilative Crimes Act...........125

Sub Part A - Assault

6.2 The Law of Assault and Battery..............................129

6.3 Assaulting Federal Officers or Employees ..............130

6.4 Who is Covered?....................................................130

6.5 “Forcibly”..............................................................131

6.6 “Engaged in or on Account of Official Duties”........131

6.7 Penalty..................................................................132

Sub Part B - Bribery

6.8 Introduction - Title 18 U.S.C. § 201.......................133

6.9 Public Officials ......................................................133

6.10 Witnesses ..............................................................133

6.11 Directly or Indirectly.............................................134

6.12 Anything of Value..................................................135

6.13 To Influence Any Official Act .................................135

6.14 Gratuities ..............................................................135

Sub Part C - Federal Firearms Offenses

6.15 Introduction..........................................................137

6.16 Title 18 U.S.C. § 922(g) - Prohibited Persons ..........137

6.16.1 Definition of “Firearm” ..........................................137

6.16.2 Prohibited Persons ................................................137

6.16.3 Pardon or Expungement .......................................140

6.17 Enhanced Mandatory Penalties..............................141

6.17.1 Introduction..........................................................141

6.17.2 Definitions - 18 U.S.C. § 16...................................141

6.17.3 Enhanced Mandatory Penalties .............................142

6.18 Possession of Firearms in Federal Facilities...........142

6.19 Weapons Requiring Registration ............................143

Criminal Law 117
6.19.1 Introduction..........................................................143

6.19.2 Procedure .............................................................143

6.19.3 Weapons Requiring Registration............................143

6.20 Tracing a Firearm through the ATF........................145

6.20.1 Introduction..........................................................145

6.20.2 Information Required to Trace a Firearm...............145

6.20.3 Information Gained from Successful Trace ............145

Sub Part D - Federal Drug Offenses

6.21 Introduction..........................................................147

6.22 Controlled Substances ...........................................147

6.22.1 Defined ................................................................147

6.22.2 Possession ...........................................................148

6.22.3 Distribution .........................................................149

6.22.4 Penalties and Charging ........................................150

Sub Part E - The Entrapment Defense

6.23 Introduction and Overview ....................................151

6.24 Overview of How the Entrapment Defense Works...151

6.25 Analysis of the Entrapment Defense ......................152

6.25.1 Government Inducement......................................152

6.25.2 Predisposition ......................................................153

6.25.3 Examples of Predisposition ..................................154

6.25.4 Examples of NO Predisposition.............................155

6.26 Conclusion ............................................................155

Sub Part F - False Statements

6.27 Elements ...............................................................157

6.27.1 Regarding Certain Federal Matters .......................157

6.27.2 Knowingly and Willfully - Intent ...........................158

6.27.3 Materiality ...........................................................159

Sub Part G - Theft, Embezzlement, Conversion

6.28 Introduction..........................................................161

6.29 Terms of the Statute .............................................161

6.30 Theft .....................................................................161

6.30.1 Elements .............................................................161

6.30.2 Example ..............................................................162

6.31 Embezzlement .......................................................163

118 Criminal Law
6.31.1 Elements .............................................................163

6.31.2 Example ..............................................................163

6.32 Theft by Conversion ..............................................164

6.32.1 Elements .............................................................165

6.32.2 Example ..............................................................165

6.33 Theft by Receipt of Stolen Property.......................165

6.33.1 Elements .............................................................166

6.33.2 Example ..............................................................166

Sub Part H - Federal Fraud Statutes 

6.34 Introduction..........................................................169

6.35 Mail Fraud - 18 U.S.C. § 1341 ................................170

6.35.1 Elements .............................................................170

6.35.2 Definition of Fraud...............................................170

6.35.3 Application of the Mail Fraud Statute...................170

6.35.4 Examples of Common Schemes............................172

6.36 Wire Fraud - 18 U.S.C. § 1343................................174

6.36.1 Elements .............................................................174

6.36.2 Application of the Wire Fraud Statute ..................174

6.37 National Stolen Property Act - 18 U.S.C. § 2314.....176

6.37.1 Paragraph One – The Elements ............................176

6.37.2 Proving the Elements ...........................................176

6.37.3 Paragraph Two – The Elements ............................178

6.37.4 Proving the Elements ...........................................179

6.37.5 Paragraph Three - The Elements ..........................180

6.37.6 Proving the Elements ...........................................180

6.38 Venue....................................................................182

Criminal Law 119
NOTES

120 Criminal Law
Criminal Law

6.1 Introduction to Criminal Law

The subject of criminal law is very broad. By studying selected 

federal laws presented in this course, the student will learn 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 class. 

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: 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.

6.1.1 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, in 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 

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) against the perpetrator 

for the harm incurred by the assault. 

6.1.2 Elements of Criminal Statutes

On a few occasions, this text may refer to the “common law.” 

Officers 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 

Criminal Law 121
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 

criminal laws in the United States are found in written statutes

(statutory law). To substantiate criminal charges that actually 

go to trial, each element of the offense must be established to a 

probable cause threshold. Probable cause can be defined as 

facts and circumstances that would lead a reasonably prudent 

person to believe that a criminal offense has probably taken 

place and the person charged with that offense probably 

committed it. To obtain a conviction at trial, each element of 

the offense must be proven beyond a reasonable doubt. 

 

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, action 

is not required for all crimes. For example, a parent could be 

criminally charged with child abuse for not acting to care for his 

or her child. Failure 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 a prohibited act (or failed to perform an act)

that caused the proscribed social harm. 

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

general intent offenses and specific intent offenses. 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 must be proven is that the act was done 

willfully, deliberately, or intentionally and that it was not an 

accident or a misadventure. 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 broken nose, it does not matter that the 

resulting harm of a broken nose was not intended. All the 

122 Criminal Law
government must prove is the defendant intended to perform 

the act that resulted in harm.

A specific intent offense requires proof of a particular mental 

state. A specific intent offense requires proof that the 

perpetrator desired 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, the elements of burglary generally 

consist of a breaking and entering in the nighttime with the 

intent to commit a felony therein. Thus, for specific intent 

offenses (offenses that contain these special specific intent 

terms), the government must prove beyond a reasonable doubt 

the statutory act (or failure to act), as well as the perpetrator’s 

specific intent. Thus for burglary, the government would have 

to prove beyond a reasonable doubt that the defendant broke 

end entered, in the night time, and at the time of the breaking 

and entering the defendant had the intent to commit a felony. 

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

suspect’s admissions, confessions and statements to others are 

the best and most compelling ways to prove 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. 

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 at the time of the killing the person who 

took the human life did so with malice aforethought. 

Title 21 U.S.C. § 844 is a general intent offense. The statute 

makes it an offense to knowingly or intentionally possess a 

controlled substance. Therefore, to secure a conviction, the 

Criminal Law 123
government must prove that the defendant “knowingly or 

intentionally” possessed a controlled substance. If the 

defendant agreed to hold his girlfriend’s purse that contains a 

controlled substance, he would in fact “intentionally possess” 

the purse and its contents. 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 officer 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, the government does not have to prove why 

someone committed the crime. Hate crimes and terrorism 

statutes are exceptions to this rule. To obtain a conviction for a 

hate crime, the government must prove that the act was 

committed because of the special status (sex, age or race) of the 

victim. For terrorism, the government must prove violence 

against civilians for the purpose of advancing political or 

religious agendas. 

6.1.3 Felonies and Misdemeanors

All criminal statutes must penalize the performance of the act

(or failure to act). Without penalties, the criminal system would 

have no meaning. These penalties can include fines, 

incarceration and death. The range of potential penalties is 

generally 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 authorized by the 

statute and 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 

124 Criminal Law
more than five days. (For further discussion of the 

classification of federal crimes, see Handbook Chapter Eight, 

Federal Court Procedures.)

6.1.4 Attempts

An attempt to commit a crime is a crime. To prove an attempt

to commit a crime, the government must show the defendant’s 

intent to commit the 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. Something less than a completed 

transaction supports an attempt, provided there is a substantial 

step toward completion of the crime.

6.1.5 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 

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. Under these circumstances, 

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 federal jurisdiction property provides only the United 

Criminal Law 125
States Government with criminal justice authority (jurisdiction) 

over the area. All policing, investigating, and prosecuting of 

offenses 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 wherein the property is 

located have criminal jurisdiction over the area. Both the 

United States and the state authorities can police, investigate 

and prosecute offenses 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. 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 for those 

federal offenses. 

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 

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 

federal government to adopt a state criminal statute and 

126 Criminal Law
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 127
NOTES

128 Criminal Law
Sub Part A - Assault

 

6.2 The Law of Assault and Battery

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

assault by offer and an assault by attempted battery. An 

assault by offer is any willful threat to inflict injury upon 

another person with the apparent present ability and intent to 

do so. The assault by offer puts the victim in apprehension of

immediate bodily harm. For example, an assault by offer is 

committed when John, while waving a baseball bat, approaches 

Bob and tells him that he is going to pulverize him. It is 

reasonable for Bob to apprehend 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 potential 

intended harm. A present apparent ability and intent to inflict 

bodily harm must actually exist and the victim must be aware 

of it. 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 assault by attempted battery is an 

unsuccessful battery. If John tries to punch Bob, but misses 

him, John has committed an assault by attempted battery. 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. Chargeable 

offenses include being punched, poked and spit upon. 

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.

Criminal Law 129
6.3 Assaulting Federal Officers or Employees

Title 18 U.S.C. § 111 entitled, “Assaulting, resisting, or 

impeding certain officers or employees,” does not distinguish 

between the separate offenses of assault and battery. Federal 

courts have determined that both types of conduct 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 official duties, or 

on account of something that person did while performing 

official duties. The first section of § 111 protects current federal 

employees (and those assisting them) when (1) they are 

assaulted while performing their job, or (2) if not currently 

performing their job (off duty), they are assaulted because of 

something they did while performing their job. The second 

section of § 111 protects former federal employees (and those 

who assisted them) when assaulted because of something they 

did when they were a federal employee performing official 

duties. 

6.4 Who is Covered?

As mentioned before, § 111 provides protection for any person 

designated in 18 U.S.C. § 1114, or any person who formerly 

served as a person designated in § 1114. Therefore, in order to 

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

1114. 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 

130 Criminal Law
employee in the performance of his official duties is afforded 

protection under § 111. 

6.5 “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 

an officer’s job more difficult, but it does not by itself amount to 

an assault. Mere passive resistance is not sufficient for a 

conviction under § 111.

6.6 “Engaged in or on Account of Official Duties”

Current federal officers and employees (and those assisting 

them) are covered by § 111 if assaulted while they are “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 

Criminal Law 131
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 husband. The husband

punches the officer, because of the officer’s earlier arrest of his 

wife. The husband can 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. The 

suspect, after his release from prison, locates and assaults the 

former federal officer because he is still angry at having been 

arrested, tried and convicted. 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.

6.7 Penalty

When the defendant’s conduct amounts to only simple assault 

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

misdemeanor 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 any object has the potential for 

being a deadly or dangerous weapon. Examples from cases 

including 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.

132 Criminal Law
Subpart B - Bribery

6.8 Introduction - Title 18 U.S.C. § 201

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, while performing 

official duties.

6.9 Public Officials

It is a crime to corruptly give, offer or promise, a public official

(or person who has been selected to be 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 (or person who has been selected to be 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.

As an example, 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 evidence. Furthermore, it is an offense for the 

agent to offer to destroy the evidence for five thousand dollars.

6.10 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, 

Criminal Law 133
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.

For example, 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.

6.11 Directly or Indirectly

In the previous examples, 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 officer’s spouse, in exchange for the officer 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 officer’s children.

134 Criminal Law
6.12 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 officer an all-expense paid trip to Hawaii in exchange 

for the officer destroying a piece of evidence in a criminal case. 

6.13 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. 

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. 

6.14 Gratuities

Pursuant to 18 U.S.C. § 201, a gratuity is an offense that 

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.” 

Criminal Law 135
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 a federal law enforcement officer may or may not be 

authorized to receive; every agency has a designated ethics 

official that will provide guidance.

136 Criminal Law
Sub Part C - Federal Firearms Violations

6.15 Introduction

All law enforcement officers face the possibility of encountering 

firearms on the job. This course is an introduction to selected 

federal firearms laws. It 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. Officers should acquaint 

themselves with state and local firearms laws in their 

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, 

this observation of a weapon would create a reasonable 

suspicion to justify an investigative stop and a frisk for 

weapons.

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

6.16.1 Definition of “Firearm” 

Firearms are weapons that will expel, or are designed to expel or 

may be readily converted to 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.

6.16.2 Prohibited Persons

Federal law prohibits certain persons from possessing a firearm 

or ammunition. Since the Constitution does not provide 

Congress with an express enumerated power pertaining to the 

regulation of firearms, Congress has to rely upon some other 

Criminal Law 137
enumerated power. The constitutional anchor upon which the 

firearms statutes are based is the commerce clause. At trial, 

the government must prove a connection (“nexus”) between the 

each firearm offense and interstate commerce.

Federal law prohibits the following persons from knowingly 

possessing firearms or ammunition that have a nexus to 

interstate commerce:

(a) Convicted Felons - 18 U.S.C. § 922(g)(1) 

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 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)(A). Furthermore, pardons

are exceptions to the convicted felon firearms possession rule, 

unless the pardon expressly states that weapon possession is 

still prohibited.

(b) Fugitives From Justice - 18 U.S.C § 922 (g)(2)

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).

138 Criminal Law
(c) Drug Users/ Addicts - 18 U.S.C. § 922(g)(3)

Unlawful users of drugs or those addicted to a controlled 

substance.

(d) Persons Adjudicated Mentally Defective –

 18 U.S.C. § 922(g)(4)

Any person who has been adjudicated by a court as mentally 

defective or who has been committed by a court to a mental 

institution cannot possess a firearm.

Note that the person must have been “adjudicated” mentally 

defective or “committed” to a mental institution. Adjudicated 

means a court has made the decision. Voluntary outpatient 

treatment or counseling does not qualify a person for this 

prohibition. 

(e) Illegal Aliens - 18 U.S.C. § 922 (g)(5)

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. 

(f) Persons With Dishonorable Discharges –

 18 U.S.C. § 922 (g)(6)

Any person who was discharged from the Armed Forces under 

dishonorable conditions.

(g) Renounced U.S. Citizenship - 18 U.S.C. § 922 (g)(7)

Anyone person who has renounced their United States 

citizenship.

(h) Domestic Relations Restraining Orders –

 18 U.S.C. § 922 (g)(8)

Any person who is subject to a court order restraining them

from harassing, stalking, or threatening an intimate partner, or 

Criminal Law 139
child of such intimate partner.

(i) Misdemeanor Crimes of Domestic Violence –

 18 U.S.C. § 922 (g)(9)

Any person 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 disqualify a person from 

the 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). 

6.16.3 Pardon or Expungement 18 U.S.C. § 921 (a)(20)(B)

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)(B) and 18 

U.S.C. § 921 (a)(33)(B)(ii).

140 Criminal Law
6.17 Enhanced Mandatory Penalties

6.17.1 Introduction

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

penalties for any person who possesses, brandishes or 

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. Discharging a firearm includes an 

accidental discharge. Any person subject to these enhanced 

penalties is not eigible 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.

6.17.2 Definitions - 18 U.S.C. § 16

(a) Federal Crime of Violence

The term “federal crime of violence” means a federal offense that 

is a felony, and:

1. Has as an element the use, attempted use, or 

 threatened use of physical force against the 

 person or property of another, or

2. 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. 

(b) 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.

Criminal Law 141
6.17.3 Enhanced Mandatory Penalties

(a) 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.

(b) 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.

(c) Firearm Discharged

If the firearm is discharged (even accidentally) during the 

commission of a crime of violence or drug trafficking crime, the 

mandatory penalty is imprisonment for not less than 10 years.

6.18 Possession of Firearms in Federal Facilities

Under Title 18 U.S.C. § 930, it is unlawful to knowingly possess 

or cause to be presented a firearm or “other dangerous weapon” 

in 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 officers an automatic right to carry weapons 

into federal facilities. For example, most federal courts require 

officers to check your weapons and not bring them into court.

142 Criminal Law
6.19 Weapons Requiring Registration

6.19.1 Introduction

Weapons listed in 26 U.S.C. § 5845(a) must be registered with 

the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 

in order to be legally possessed. Title 26 U.S.C. § 5861 

prohibits possession of such unregistered weapons. These 

weapons include short-barrel shotguns, short-barrel rifles, 

machine guns, silencers/mufflers and destructive devices.

6.19.2 Procedure

If an officer encounters or reasonably suspects that a weapon 

must be registered, the following procedures are recommended:

(a) Is Registration Required

Determine whether the weapon is required to be registered by 

examining the weapon or measuring the weapon.

(b) Is the Weapon Is Registered

If registration is required, determine if the weapon is properly 

registered to the current possessor of the weapon.

6.19.3 Weapons Requiring Registration - 26 U.S.C. § 5845

(a) Short-Barrel 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.

(b) Short-Barrel 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 

Criminal Law 143
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 

muzzle to a point perpendicular to the end of the stock of the 

weapon.

(c) Machine Guns

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. 

(d) Silencer/Muffler

Any device for silencing, muffling, or diminishing the explosion 

noise of a firearm must be registered.

(e) Destructive Devices

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 destructive devices include: rocket launchers, 

mortars, land mines, claymore mines and hand grenades.

144 Criminal Law
6.20 Tracing a Firearm through the ATF 

6.20.1 Introduction

The ATF National Tracing Center handles about 350,000 

firearm trace requests annually. Tracing a firearm may assist 

an investigation in any number of ways. The main reason for 

tracing firearms is to link criminally used weapons 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.

6.20.2 Information Required to Trace a Firearm

In order to trace a firearm, the following information must be 

provided:

(a) Make (manufacturer): For example, a “Colt,”

 “Taurus,” or “Sturm Ruger.”

(b) Model: For example, a “Detective Special” or 

 “Model 26.”

(c) Serial Number: For example, “33419.”

(d) Caliber/Gauge: For example, “.38 Caliber.”

6.20.3 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.

Criminal Law 145
Notes

146 Criminal Law
Sub Part D - Federal Drug Offenses

6.21 Introduction

Due to pervasive substance abuse in our society, it is 

imperative that law enforcement officers have a working 

knowledge of common 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.

6.22 Controlled Substances

Knowing or intentional possession, or knowing or intentional

possession with intent to distribute (transfer), a controlled 

substance 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. Be mindful, that there are circumstances where 

possession of controlled substances can be lawful. Examples 

include officers possess drugs as a result of a lawful search 

incident to arrest, a physician who administers the drug for 

medical purposes, or a researcher who possesses the drug for 

testing. 

6.22.1 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 

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 

Criminal Law 147
drugs. When charging these offenses, the controlled substance 

must be listed in one of the five schedules, must be alleged in 

the charging document, and must be proven beyond a 

reasonable doubt. 

6.22.2 Possession

Pursuant to 21 U.S.C. § 844, 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. A person with a valid prescription from a

physician or who has received a controlled substance from a

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.

Knowing or intentional possession of a controlled substance, 

are elements of the 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.

Possession is the ability to control the substance. Knowing or 

intentional 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 

148 Criminal Law
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.

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.

6.22.3 Distribution

Title 21 U.S.C. § 841(a) makes it unlawful for any person to 

knowingly or intentionally: “(1) manufacture, 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 

Criminal Law 149
arrangements can all be used to circumstantially prove 

possession with intent to distribute. No commercial transaction 

(exchange of drugs for money) is required. All that is necessary 

is evidence to support the knowing or intentional 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 these

offenses.

6.22.4 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. Generally, 

possession of “user amounts” is a misdemeanor; 

forfeitures/civil penalties can be imposed.

150 Criminal Law
Sub Part E - The Entrapment Defense

6.23 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. Government 

officers 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 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.

6.24 Overview of How the Entrapment Defense Works

Entrapment is an affirmative defense. To substantiate the 

defense, the evidence must establish sufficient facts from which 

a reasonable jury could find the government induced an 

innocent person to commit a criminal offense. This is typically 

done during the government’s case-in-chief through the crossexamination 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 tried in a judge alone trial.

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 possessed the state of mind to commit 

the offense charged. Once the defendant has raised the 

entrapment defense, the government must negate it by 

Criminal Law 151
establishing predisposition beyond a reasonable doubt. If 

defendant’s predisposition is established, there is no 

entrapment.

6.25 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.

6.25.1 Government Inducement

Entrapment occurs when the criminal activity is induced by 

government officers. Inducement by law enforcement officers 

may take many forms including requesting, asking, suggesting, 

overbearing persuasion, fraudulent representations, threats, 

coercive tactics, harassment, promises of reward, or pleas based 

upon need, sympathy, or friendship.

(a) Permitted Inducements

Some inducements are unlikely to tempt a law-abiding person 

to commit a crime. Some inducements are so innocuous that

courts generally approve their use. Examples include: use of 

decoys (‘robo’ deer – decoys 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 

manufacturing).

(b) 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:

1. Threats against the well-being of the target’s 

 family.

2. Extreme appeals to the sympathy or emotions 

152 Criminal Law
 of the solicited target.

3. Offers of unreasonable amounts of money to 

 an impoverished or financially desperate target.

4. Continuous pressure such as repeated phone 

 calls, visits or requests; repeated insistence, 

 badgering.

5. Violent demonstrations, for example, threats 

 regarding loss of job, or custody of children.

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, 

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 for the sole purpose of 

indicting him for receiving counterfeit currency with the intent 

to pass it as genuine, the government’s actions violate due 

process.

6.25.2 Predisposition

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 to include:

(a) Statements made by the defendant before, during, 

 and after the inducement.

(b) Character and reputation.

(c) Motive for committing the crime.

(d) Eagerness or ready acceptance of the government’s 

Criminal Law 153
 suggestion.

(e) Possession of contraband for sale on his 

 premises.

(f) Prior convictions or criminal activity of the 

 same or similar nature evidencing intent, 

 motive or knowledge.

(g) Acceptance of an offer to supply the last 

 essential ingredient to manufacture drugs.

6.25.3 Examples of Predisposition

(a) 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,

as the defendants were predisposed.

(b) Previously Formed Intent

The defendant 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 – the defendant was predisposed.

(c) A Ready Response to a Criminal Offer

An undercover agent asks a bootlegger, “How much for a 

bottle?” The bootlegger promptly replies, “$5.00.” It was 

obviously not necessary for the government to “lure, inspire, or 

persuade” the bootlegger, who was clearly ready and willing to 

commit the crime as soon as an opportunity arose.

154 Criminal Law
6.25.4 Examples of NO Predisposition

(a) 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 and begging 

for help by the agent, the nurse relents and provides a small 

amount of the drug.

(b) Threats

A government informant tells a government officer 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.

(c) Excessive Amounts of Money

An officer knows that a businessman is having serious money 

problems in running his business. The officer offers the 

businessman $75 million to smuggle a small amount of illegal 

weapons into the country. After a few requests, the 

businessman agrees to smuggle the weapons.

6.26 Conclusion

Law enforcement officers who induce individuals to commit 

crimes should be prepared to refute an entrapment defense with 

facts demonstrating the defendant’s predisposition. Detailed 

reports documenting the defendant’s statements and actions 

greatly enhance the government’s ability to negate the defense. 

However, the Supreme Court has indicated outrageous 

government conduct, which orchestrates a criminal offense, can 

be a bar to prosecution, even if the defendant is predisposed. 

Therefore, proper investigation planning, to include monitoring 

and controlling informants to ensure fair treatment, is essential.

Criminal Law 155
NOTES

156 Criminal Law
Sub Part F - False Statements

6.27 Elements

In order to successfully prosecute a defendant for violating 18 

U.S.C. § 1001, the following elements must be proven beyond a 

reasonable doubt:

1. The defendant,

2. Regarding certain federal matters;

3. Knowingly and willfully;

4. Made a false material statement, or;

5. Concealed or covered up a material fact, or;

6. Made or used a document containing a false material 

 statement.

6.27.1 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 

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:

(a) Judicial Proceedings

Section (a) of the Act does not apply to a party or to a 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. 

Criminal Law 157
Such entities include, for example, the Office of Probation and 

the Clerk of the Court.

(b) 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 

criminal acts actually occurred. False material statements 

made to an agency regarding the regulatory functions of a 

federal department or agency fall under § 1001. Federal courts 

have upheld convictions under this section for individuals who

have made false material statements involving various state 

awarded contracts that are federally funded.

6.27.2 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.

158 Criminal Law
6.27.3 Materiality

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 denies he is guilty 

of the crime which he knows he committed. However, the 

Supreme Court now holds § 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, as 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. Consequently, when a 

suspect lies to an investigator by responding “No” to a question 

that asks if the suspect committed the offense, and the 

government can prove that the suspect did in fact commit the 

offense, the suspect can be prosecuted for a § 1001 violation. 

Criminal Law 159
NOTES

160 Criminal Law
Sub Part G - Theft, Embezzlement, and Conversion

6.28 Introduction

Title 18 U.S.C. § 641, 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, theft by embezzlement, 

theft by conversion, and theft by receiving stolen property of the 

United States government or any department or agency thereof.

6.29 Terms of the Statute

For purposes of the statute, “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 property 

stolen, embezzled, converted, or received is more than $1,000, 

the offense is a felony, which is punishable by 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. Value of the 

government property taken must be alleged in the charging 

document and proved beyond a reasonable doubt at trial. 

6.30 Theft

Section 641 codifies the common law crime of larceny (theft). 

“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.

6.30.1 Elements

Three elements must be proven to convict a defendant of “theft” 

under § 641. These elements are:

Criminal Law 161
1. That the defendant voluntarily, intentionally, 

 and knowingly;

2. Stole property belonging to the United States 

 or any department or agency thereof;

3. With the intent to deprive the United States 

 of the use or benefit of the property so taken.

6.30.2 Example

A defendant takes a vehicle that belongs to the United States 

government and paints the vehicle a different color, 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.

The fact that the vehicle is repainted evidences his intent to 

keep it for his own use and enjoyment, thus depriving the 

government of the use and benefit of the vehicle. 

A defendant “steals” property when he or she takes and carries 

away property belonging to another (the government) with the 

intent to deprive the owner (the government) 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 at trial 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. 

162 Criminal Law
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.

6.31 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. 

6.31.1 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:

1. That the defendant voluntarily, intentionally, 

 and knowingly;

2. Embezzled property belonging to the United 

 States or any department or agency thereof;

3. With the intent to deprive the United States 

 of the use or benefit of the property so taken.

6.31.2 Example

A federal postal employee is responsible for selling stamps to 

the public. At the end of the work day when the employee is 

Criminal Law 163
obligated to deposit the days cash receipts into the government 

account, the employee pockets 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 (the money was received in 

exchange for the stamps that were sold); the employee pocketed 

the money, thus depriving the United States of the use of the 

money taken; and the employee intentionally appropriated the 

money to his/her 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 (rightful possession); there is no fraud or 

crime committed in the original obtaining of the property. It is 

only after the property has been lawfully entrusted to him or 

her that the defendant deprives the owner of the use of the 

property taken (wrongful taking). This is the primary difference 

between embezzlement and theft of government property. In 

embezzlement, the original taking was lawful or with the 

consent of the owner, and the intent to deprive the United 

States of the property originated later. In theft, the intent to 

deprive the United States of the property must exist at the time 

of the taking. Again, if the crime is alleged to have been a 

felony, the government must also prove that the value of the 

property embezzled was over $1,000. Property or money can be 

embezzled. 

6.32 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 

164 Criminal Law
manner or to an unauthorized extent. Conversion deprives the 

government of the benefit and use of the property. 

6.32.1 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:

1. That the defendant voluntarily, intentionally, and 

 knowingly;

2. Converted property belonging to the United States 

 or any department or agency thereof;

3. With the intent to deprive the United States of the use 

 or benefit of the property so taken.

Again, if the crime is alleged to have been a felony, the 

government must also prove that the value of the property 

converted was over $1,000. 

6.32.2 Example

Typically conversion is tied to misuse of government vehicles for 

personal reasons. For example, a federal agency has a 

government vehicle for its employees to use for official purposes. 

At lunch one afternoon, one of the employees uses the 

government vehicle to go shopping for a couple of hours at a 

local mall. The employee is guilty of conversion under § 641. 

The employee wrongfully deprived the United States government 

of the use and benefit of its property.

6.33 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 property knows that it has 

been stolen, embezzled or converted, he or she does not have 

Criminal Law 165
any legal interest in the property, which continues to belong to 

the party from which it was stolen (i.e., the United States).

6.33.1 Elements

In order to convict a defendant of theft by receiving stolen 

property, the government must prove these four elements:

1. That the defendant voluntarily, intentionally, and 

 knowingly received;

2. Stolen, embezzled, or converted property belonging 

 to the United States government or any department 

 or agency thereof;

3. Knowing that the property had been stolen, 

 embezzled, or converted;

4. With the intent to deprive the United States of the 

 use or benefit of the property.

6.33.2 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 

for his own use. While the federal employee is responsible for 

theft of government property, the friend is 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 

166 Criminal Law
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.

Remember, all four types of theft set forth in the statute apply 

to government property to include property made under

contract for the United States.

Criminal Law 167
NOTES

168 Criminal Law
Sub Part H - Federal Fraud Statutes

6.34 Introduction

The concept of “federalism” embodied in our U.S. Constitution -

independent states relinquishing certain of their rights, while 

maintaining others to form a more workable union - helped 

create the world’s greatest democracy, but it also posed 

significant challenges. 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 could they be properly prosecuted once apprehended? If 

personal items stolen in one state were transported across state 

lines for sale in another state, which state’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, Clause 2 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 (Article I, Section 8, Clause 2) to enact 18 U.S.C. § 1341, 

Frauds and Swindles (the Mail Fraud Statute). Together, these 

three statutes constitute the federal government’s primary 

Criminal Law 169
weapons in prosecuting fraud schemes touching interstate 

commerce or use of the mails.

6.35 Mail Fraud - 18 U.S.C. § 1341

6.35.1 Elements

The statute requires proof of the following elements:

1. Any person who;

2. Intentionally;

3. Devises a fraudulent scheme, and;

4. Uses or causes the mails to be used; (postal service 

 or private/commercial interstate carrier) 

5. In furtherance or in support of the scheme.

6.35.2 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 adversely affecting one’s property rights by dishonest 

methods or schemes. It usually involves injury to, or loss of, 

property resulting from the use of deceit, trickery, chicanery or 

overreaching. 

6.35.3 Application of the Mail Fraud Statute

(a) In General

Each use of the mail or an interstate carrier (such as United 

Parcel Service or Federal Express) in furtherance of a scheme to 

defraud 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. The defendant’s

mailing of the order form would be chargeable as one count of 

mail fraud. The mailing of the goods by the victimized seller to 

the defendant would constitute a second count of mail fraud 

170 Criminal Law
under § 1341. There is no requirement the defendant intends,

or even knows, the mail will be used. In fact, the defendant

may take deliberate steps to avoid using the mail and still 

violate the statute, as it is sufficient that the use of the mail was 

reasonably foreseeable. Thus, a defendant who hand-delivers a 

fraudulent claim to his insurance agent can be prosecuted 

under the mail fraud statute if the insurance agent mails the 

claim to the home office for processing. Though the defendant 

intended to avoid use of the mail by hand delivering the claim, 

the mailing of his claim by the agent was reasonably 

foreseeable. Furthermore, a defendant can be criminally liable 

for a mailing which he or she did not personally place in the 

mail, and which by itself does not contain a false 

representation. It is sufficient under the statute that the 

defendant caused the mail to be used and that the mailing was 

in furtherance of the overall scheme to defraud. 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 mailing involved the use of the 

U.S. Mail. Thus, a victim’s check mailed from Manhattan, N.Y.

to the defendant in Brooklyn, N.Y., can be charged as one count 

of mail fraud. 

Remember, the same principles apply if the defendant uses an 

interstate carrier. 

(b) “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

to complete the fraudulent scheme. 

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 subsequent 

bills mailed to the authorized holder of the credit card for 

payment and the checks mailed to pay those bills cannot be 

Criminal Law 171
charged as mail fraud. The bills and payments occurred after 

the fraudulent scheme was completed. However, the courts 

have distinguished between mailings after the completion of the 

fraud, which are not chargeable under § 1341, and “lulling 

letters.” Lulling letters are mailings designed to lull the victims 

into a false sense of security, postpone their ultimate complaint 

to the authorities, and therefore make the apprehension of the 

defendants less likely than if no mailings had taken place. As 

an example, if an investment adviser sold bogus stocks to his 

clients and converted their funds to his own use, he could still 

be charged with subsequent mailings of false statements which 

indicated their accounts had risen in value. Though these 

mailings are made after the victims have already lost their 

money, they effectively deceive the investors as to the true 

condition of their accounts, and allow the scheme to go 

undetected. The ability to charge lulling letters as mail fraud 

counts enables prosecutors to indict cases which otherwise 

would have been precluded by the expiration of the five-year 

statute of limitations.

6.35.4 Examples 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 using 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.

(a) 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.

172 Criminal Law
(b) Bribes and Kickbacks – Private Corruption

In mail fraud cases 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. Any mailing to execute the 

bribery or kickback scheme constitutes mail fraud. 

(c) 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 it for another item 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.

(d) 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.

(e) 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.

Criminal Law 173
(f) Private Fraud

Any person who commits a fraud against another person and 

either uses the mail or causes the mail to be used in 

furtherance of the scheme has committed mail fraud. For 

example, a defendant who married a recently-widowed person 

and used the mail in furtherance of a scheme to deplete the 

assets left to that person by the deceased spouse has violated 

the mail fraud statute.

6.36 Wire Fraud - 18 U.S.C. § 1343

6.36.1 Elements

The statute requires proof of the following elements:

1. Any person who;

2. Intentionally;

3. Devises a fraudulent scheme, and;

4. Uses or causes an interstate wire transmission to 

 be used;

5. In furtherance or support of the scheme.

6.36.2 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 

fraud statute requires that the signal or wire transmission 

174 Criminal Law
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. Furthermore, wire fraud also applies to 

Criminal Law 175
fraudulent schemes involving foreign commerce. 

6.37 The National Stolen Property Act - 18 U.S.C. § 2314

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.

6.37.1 Paragraph One – 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:

1. Transportation in interstate or foreign commerce;

2. Of any goods, wares, merchandise, securities or 

 money valued at $5,000 or more;

3. Knowing the same to have been stolen, converted, or 

 taken by fraud.

6.37.2 Proving the Elements

(a) Interstate or Foreign Commerce

The property or monies obtained by theft or fraud must have 

been transported or transferred across state lines or in foreign 

commerce. Transportation or transfer of such items within a 

single state does not satisfy the requirements of the statute. It 

176 Criminal Law
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 

more substantial frauds and thefts. To determine the 

appropriate measure of value, the courts refer initially to 18 

Criminal Law 177
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.

6.37.3 Paragraph Two – The Elements

The second paragraph of ITSP prohibits “travel fraud” - causing 

potential victims of a fraudulent scheme to travel in interstate 

178 Criminal Law
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:

1. Transportation of or inducement of a person to travel in 

 interstate or foreign commerce;

2. For the purpose of defrauding that person of money or 

 property valued at $5000 or more.

6.37.4 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 the

victim to travel in an effort to defraud the victim. 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 

if the neighbor does invest, but only upon his return home 

when he hands his funds to the con artist. The key to travel 

fraud is the interstate travel of the victim.

(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 

Criminal Law 179
fraud under the second paragraph of ITSP requires that the 

suspect defrauded or endeavored to defraud the victim of 

$5000 or more.

6.37.5 Paragraph Three - 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:

1. Transport in interstate or foreign commerce;

2. Falsely made, forged, altered, or counterfeited securities or 

 tax stamps;

3. With unlawful or fraudulent intent;

4. Knowing the securities or tax stamps to be forged, altered or 

 counterfeited. 

6.37.6 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 

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).

180 Criminal Law
Airline tickets, credit cards, credit card slips, and leases do not 

fall within the definition of “securities” under this third 

paragraph (See 18 U.S.C. § 2311 for the statutory definition of 

securities). 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.

(d) Fraudulent Intent

The government must establish that the defendant transported 

the forged or counterfeit check or security with unlawful or 

fraudulent intent. The requisite intent may be established 

through direct evidence of the defendant’s own statements 

and/or through circumstantial evidence of his participation in 

the scheme to transport or negotiate the securities.

(e) Knowledge of Forgery or Counterfeit

To sustain a conviction under this paragraph of ITSP, the 

Criminal Law 181
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.

6.38 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. Remember, interstate transportation of stolen property 

offenses also apply to foreign commerce as well. 

182 Criminal Law
Chapter Seven

Electronic Law and Evidence

7.1 Introduction to Electronic Law and Evidence ..........184

7.2 Electronic Surveillance: A Little History.................184

7.3 When a Title III Court Order is Required..................186

7.4 How to Obtain a Title III Court Order.......................188

7.4.1 Who May Apply for a Title III Court Order?..............188

7.4.2 Enumerated Crimes Requirement?..........................188

7.4.3 Authorization to Apply for a Title III Court Order .....189

7.4.4 Contents of the Application.....................................190

7.4.5 Who May Issue a Title III Court Order?....................193

7.5 Interceptions Exempted from Title III .....................194

7.5.1 No Reasonable Expectation of Privacy .....................194

7.5.2 Consensual Monitoring ...........................................196

7.5.3 Special Limitations on Consensual Monitoring ........197

7.5.4 Electronic Communications Exempt from Title III....198

7.6 Electronic Tracking Devices ....................................199

7.6.1 Applicable Law........................................................199

7.6.2 The “Trespass” Definition of Search.........................200

7.6.3 The “Privacy” Definition of Search ...........................201

7.6.4 Monitoring of an Electronic Tracking Device............203

7.6.5 The “Sotomayor Concurrence”.................................205

7.6.6 Warrants to Install and Monitor Tracking Devices ...206

7.6.7 Cell Phone Tracking ................................................207

7.7 Pen Registers and Trap and Trace Devices ...............208

7.7.1 Definitions and Purposes ........................................208

7.7.2 Applicable Federal Statutes.....................................209

7.7.3 Obtaining a Court Order .........................................209

7.8 Video-Only Surveillance in an REP Area...................210

7.9 Stored Electronic Communications .........................212

7.9.1 Classifying the Information Being Sought................212

7.9.2 Methods for Obtaining the Information Being 

 Sought................................................................. 214

7.9.3 Preservation Letters ................................................216

7.9.4 Multi-Jurisdiction Warrants....................................216

Electronic Law and Evidence 183
7.1 Introduction to Electronic Law and Evidence

Electronic surveillance methods have taken on an increased 

importance because criminals are making more use of 

technology. This chapter gives the student 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 videoonly 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.

7.2 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 

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

companion publication, Legal Division Reference Book.

184 Electronic Law and Evidence

 
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. 

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, officers 

may use evidence obtained through electronic surveillance if 

they first obtain a court order authorized under the statute.

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.”

Electronic Law and Evidence 185

 
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.)

7.3 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 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 officers 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.

186 Electronic Law and Evidence
• 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 

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. 

3 The statute excludes, from the definition of “device,” hearing aids set to 

correct subnormal hearing to normal.

Electronic Law and Evidence 187

 
When is a T III Order Required?

Oral communications

Real time interception.

Of an REP communication

With a device

(No REP, not Title III)

Wire and electronic 

communications

Real time interception.

Of a communication.

(Doesn’t matter whether there 

is REP)

A device is other than the human ear.

Consent of one party, no Title III required.

7.4 How to Obtain a Title III Court Order

This section addresses the requirements to obtain a Title III 

court order if one is required.

7.4.1 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).

7.4.2 Enumerated Crimes Requirement?

Depending on the type of intercept being requested, Title III may 

require as a predicate that the government demonstrate 

probable cause that one of the crimes listed in 18 U.S.C. § 2516 

has been violated.

188 Electronic Law and Evidence
(a) Wire or Oral Communications

To intercept wire or oral communications, officers 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. 

(b) Electronic Communications

When an officer seeks to intercept electronic communications, 

he or she must have probable cause that any federal felony is 

being committed. 18 U.S.C. § 2516(3).

7.4.3 Authorization to Apply for a Title III Court Order 

Before an officer submits 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 the

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. 

(a) 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.

(b) Electronic Communications

Under 18 U.S.C. § 2516(3), any government attorney may 

authorize a Title III application to intercept electronic 

Electronic Law and Evidence 189
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.

7.4.4 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:

(a) 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).

(b) 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. 

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;

190 Electronic Law and Evidence
• 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.)

(c) Necessity Statement

Under 18 U.S.C. § 2518(1)(c), a Title III application must 

contain a full and complete statement as to whether other 

investigative procedures have been tried and failed or why they 

reasonably appear to be unlikely to succeed if tried or would be 

too dangerous. This section is sometimes referred to as the 

“necessity” requirement and 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.

(d) Time Period

The application must contain a statement of the period of time 

Electronic Law and Evidence 191
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).

(e) 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 an agency for use in a Title III 

application. 

(f) 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 

192 Electronic Law and Evidence
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. 

(g) 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

7.4.5 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.

4 Note that 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 overt entry.

Electronic Law and Evidence 193

 
Title III Court Order Application Authorization and Approval 

Process

Oral and wire 

communications

Electronic 

communications 

(other than digital 

display pagers)

Digital display 

pagers

Agent with Probable 

Cause

Same Same

An offense listed in 18 

U.S.C. § 2516(1)

Any federal felony Any federal 

felony

DOJ approval of 

application

DOJ approval of 

application

AUSA can 

approve 

application

District or Appellate 

Court judge can issue

(Not a magistrate)

Same Same

7.5 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”). 

7.5.1 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 

194 Electronic Law and Evidence
“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.

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.

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 

Electronic Law and Evidence 195
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.

7.5.2 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 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. Officers must become familiar, however, 

with the particular requirements of their agency regarding this 

issue.

(a) 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.

(b) 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 

196 Electronic Law and Evidence
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.

7.5.3 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 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.

(a) Device Located on the Person

Officers 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. 

(b) 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, officers need to 

consider two important issues. First, does the government need 

to obtain a warrant for the installation of the device? When a 

confidential informant rents a hotel room and consents to 

Electronic Law and Evidence 197
having the device placed in the room, no warrant would be 

required for the installation. On the other hand, if the

operational plan is to install the device within the REP of a nonconsenting person, the government will need a court order to do 

so.

Second, will the consenting party be absent at any time when 

the officers will be monitoring the device? If a consenting party 

is present when conversations are intercepted with that device, 

no further order is necessary. If the government intercepts a 

non-consenting person’s statements made in the absence of a 

consenting party, however, that would require a Title III order. 

7.5.4 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.

198 Electronic Law and Evidence
7.6 Electronic Tracking Devices

7.6.1 Applicable Law

Title 18 U.S.C. § 3117 regulates 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 law 

enforcement officers to track and monitor the movements of 

suspects or objects from a distance, thereby reducing the 

possibility of detection. Three of the most commonly used 

tracking devices are “beepers,” “transponders,” and GPS 

devices. A “beeper” is a radio transmitter which emits periodic 

signals that can be picked up by radio receiver. U.S. v. Knotts. 

Similar to a beeper in many respects, a “transponder” is most 

often used to track the location of aircraft.

The Fourth Amendment, not Title III, regulates the installation 

and monitoring of electronic tracking devices. Accordingly, one 

must make a Fourth Amendment analysis in order to determine 

if a warrant will be required to either install or monitor a 

tracking device. In order to determine if a warrant is required, 

the law enforcement officer must first determine whether the 

installation or monitoring of a tracking device constitutes a 

“search” under the Fourth Amendment. 

In 2012, the Supreme Court issued a landmark decision that 

redefined what constitutes a “search” under the Fourth 

Amendment. In U.S. v. Jones, the Supreme Court retained the 

Katz definition of a search (with its focus on “privacy”), but also 

reinstated the traditional definition of a search based on a 

trespass to a specifically enumerated area of protection. While 

this case is more fully discussed in the Fourth Amendment

chapter, it is important to mention here because of the 

significant impact it had on the installation and monitoring of 

tracking devices. 

Electronic Law and Evidence 199
7.6.2 The “Trespass” Definition of Search

As a result of Jones, there are two ways for government action 

to trigger the Fourth Amendment as a result of conducting a 

“search.” The Katz definition of search is still valid, so a 

government intrusion into an area where a person has a 

reasonable expectation of privacy for the purpose of gathering 

information will still trigger Fourth Amendment protection.5

But the Court in Jones also added a companion definition for a 

Fourth Amendment “search.” A physical intrusion by the 

government into a “constitutionally protected area” for the 

purpose of gathering information also constitutes a search 

under the Fourth Amendment.6 The constitutionally protected 

areas are “people, papers, houses, and effects." 

Applying this new definition of a Fourth Amendment search 

significantly changes the calculus for the installation and 

monitoring of tracking devices. If the Fourth Amendment is 

triggered in either the installation or monitoring of a tracking 

device (or both), then a warrant is required. 

In order for the installation of a tracking device to constitute a 

Jones search, it must also be monitored. Therefore, under a 

Jones analysis the tracking device must be both installed and 

monitored in order to trigger Fourth Amendment protection. 

This is because Jones required both a physical trespass coupled 

with the purpose of gathering information. Under a Jones

search analysis as applied to GPS tracking devices on vehicles, 

the installation is where the physical intrusion takes place and 

the monitoring provides the requisite intent to gather 

information. 

In determining whether the installation of the tracking device 

constitutes a physical intrusion into a constitutionally protected 

area, there are two questions that must be answered. First, is 

the area intruded upon a “person, paper, house, or effect?” In 

5 For the purposes of this text, we will refer to this type of search as a “Katz

search.”

6 For the purposes of this text, we will refer to this type of search as a “Jones

search.”

200 Electronic Law and Evidence

 
other words, is it a constitutionally protected area as set out in 

the Fourth Amendment? If the answer is “no,” then there is no 

Jones search under the calculus. If the answer is “yes,” then 

the officer must answer the second question: Does the person 

who is raising the issue have “possession” of the object to which 

the tracking device was affixed at the time it was affixed? 

In order to satisfy the “physical intrusion” requirement under 

Jones, the physical occupation of the private property must 

take place at a time after the complainant has acquired a 

possessory right in the property. If the tracking device is affixed 

to a constitutionally protected “effect” like an automobile before 

the complainant takes possession of the object, then there is no 

requisite physical intrusion under the Jones analysis, which 

means it will not constitute a “search” under this analysis.

7.6.3 The “Privacy” Definition of Search

The Supreme Court made it clear in Jones that the trespass 

definition of search supplemented the existing definition of a 

search under Katz. Therefore, even if the installation and 

monitoring of a tracking device does not constitute a Jones 

search under the “trespass” analysis, it may nonetheless trigger 

Fourth Amendment protection if either the installation or the 

monitoring constitutes a Katz search.

In Katz, the Supreme Court defined a search as a government 

intrusion into an area where a person has a reasonable 

expectation of privacy (REP). Under the Katz definition of 

search either the installation or the monitoring of a tracking 

device can trigger a Fourth Amendment protection. 

Accordingly, when applying the Katz analysis to determine if a 

warrant is required, the officer must do a separate REP analysis 

for both the installation and the monitoring of the tracking 

device.

(a) Installation of an Electronic Tracking Device

In deciding whether an electronic tracking device was legally 

installed, the courts utilize a Fourth Amendment analysis 

Electronic Law and Evidence 201
focusing on whether installation of the device constitutes a 

search. As explained above, there are two ways to have a 

“search” under the Fourth Amendment.

(b) Vehicles

When determining whether the installation of a tracking device 

triggers Fourth Amendment protection, the first question is: 

Did the installation occur while the suspect had a possessory 

right to the vehicle? If the installation occurs before the suspect 

acquires the right to use the vehicle, then there is no trespass 

and there is no search under the “trespass” analysis. For 

example, assume there is a confidential informant named Bob 

and Bob owns a nice car that is often admired by Tim. Federal 

agents believe Tim is involved in activity that violates federal 

criminal law and they want to track him. The federal agents get 

Bob’s consent to install a tracking device in Bob’s car, and Bob 

agrees to loan his car to Tim without telling Tim the tracking 

device is in the car. This would not constitute a Jones search 

since the installation occurred before Tim acquired a possessory 

right to the vehicle. 

In the example above, there was no “search” under Jones

trespass theory because the physical intrusion occurred before 

the suspect (Tim) acquired the right to possess the vehicle. 

However, the “privacy” rule of Katz still applies to the tracking 

of the vehicle. 

If the installation of the tracking device occurs after the suspect 

acquires the right to use the vehicle, as in Jones, then there is 

another prong that must be met in order to have a “search” 

under Jones “trespass” theory: the tracking device has to be 

monitored. The physical intrusion (installation of the tracking 

device) into the constitutionally protected area (the vehicle)

must be coupled with purpose of gathering information (actually 

monitoring the movement of the vehicle) in order to trigger 

Fourth Amendment protection. In other words, the installation 

of a tracking device alone does not constitute a Jones search. 

In addition to the installation, the tracking device must also be 

monitored to create a Jones search. 

202 Electronic Law and Evidence
(c) Other Types of Property

The same two search analyses apply to tracking other types of 

property as well. First, is there a physical intrusion by the 

government into a constitutionally protected area for the 

purposes of gathering information? Second, is there a 

government intrusion into an area where a person has a 

reasonable expectation of privacy for the purposes of gathering 

information? If the answer is “yes” to either question, then the 

government action is a “search” under the Fourth Amendment

and the law enforcement officer must obtain a warrant.

As with a vehicle, in order for tracking to constitute a search 

under the “trespass” rule in Jones, there must be both a 

physical intrusion (installation) into a constitutionally protected 

area (persons, papers, houses, and effects) and monitoring of 

the tracking device. The installation of a tracking device into 

one of these areas alone will not constitute a search. The 

installation must be combined with the gathering of information 

in order to constitute a search.

Again, the physical intrusion must occur while the suspect has 

a right of possession in the object being tracked. If the 

installation of the tracking device occurs before the subject 

acquires a possessory interest in the property, then there is no 

physical intrusion under the Jones analysis and, accordingly, 

there is no search.

7.6.4 Monitoring of an Electronic Tracking Device

As explained in the preceding section, it is possible to have a 

situation in which a warrant was not needed to install a 

tracking device. This can occur in either a Jones search or a 

Katz search. 

In a Jones search, where the tracking device is installed on an 

“effect” and is then monitored, the law enforcement officer will 

need to obtain a warrant for both the installation and 

monitoring of the tracking device. In a Jones search the 

installation and monitoring issues are not separate because it 

Electronic Law and Evidence 203
takes both to constitute a search under the Jones “trespass” 

theory. Accordingly, if the tracking device is installed in a nonfunctioning mode (either turned off or malfunctioning) then it 

would not constitute a Jones search because the device is not 

being monitored and is therefore not providing information to 

the government.

If the installation of the device occurs before the suspect 

acquires a possessory interest in the item being tracked, then 

the Jones search analysis is not applicable ... but the Fourth 

Amendment could still be triggered under Katz as a result of the 

subsequent monitoring of the whereabouts of the object. In this 

type of situation the rule in Katz is applicable. If a person has a 

reasonable expectation of privacy from observation in the area 

in which the object is being tracked, then a warrant will be 

required to track the object. If there is no REP in the area in 

which the object is being tracked, then no warrant will be 

required.

(a) 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 a vehicle, an officer 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 government. For this reason, a defendant has no 

reasonable expectation that his movements on a public 

thoroughfare will not be observed. U.S. v. Knotts.

(b) 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.

204 Electronic Law and Evidence
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 an officer

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 the officer’s observations, but also establishes that the 

object remains on the premises, a fact not verifiable by visual 

surveillance. Because it is often difficult to determine where an 

object containing an electronic tracking device will ultimately 

come to rest, and since it may become critical to monitor the 

device to determine that it is actually located in a place not 

open to visual surveillance, the Supreme Court has stated that 

warrants for the installation and monitoring of an electronic 

tracking device are desirable. U.S. v. Karo. 

7.6.5 The “Sotomayor Concurrence”

Even though this section accurately reflects the current state of 

the law regarding tracking under the Katz analysis, it is 

important to note the uncertain future of 24/7 tracking of a 

suspect for an extended period of time without a warrant. 

In the concurring opinion of Jones written by Justice Alito (in 

which three other justices joined), Justice Alito would have held 

the actions of the government in Jones to be a search because 

the extended 24/7 tracking violated Jones’ REP in such 

extended monitoring. In other words, four of the nine justices 

believed that at some point a person develops REP in their

movement in public places when they are being continuously 

tracked. Although Justice Alito did not state exactly when this 

line would be crossed and a warrant would be required, he 

stated that the line “was surely crossed before the 4-week 

mark.” Again, this was the minority opinion and therefore did 

not establish a rule of law.

However, in a concurring opinion, Justice Sotomayor extolled 

the virtues of Justice Alito’s analysis before adopting Justice 

Scalia’s majority opinion. In her concurring opinion, Justice 

Sotomayor made it very clear if a case that involved extended 

24/7 tracking being decided under Katz was presented to her, 

Electronic Law and Evidence 205
she would most likely adopt Justice Alito’s analysis. Presuming 

Justice Alito and the other three justices who joined in his 

opinion did not change their minds, there would be a majority 

on the court who would hold 24/7 tracking for a period of 

weeks in public areas would unreasonably intrude into the 

suspect’s REP and require a warrant at some point before the 

four week point.

The current law allows for the continuous warrantless tracking 

of a vehicle in public places if the installation of the tracking 

device occurs before the suspect acquires possession of the 

object being tracked. However, due to the plain language of the 

concurring opinion in Jones by Justice Sotomayor, it seems 

obvious that future opinions from the court may change this 

practice.

7.6.6 Warrants to Install and Monitor Tracking Devices

Rule 417 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.

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, and

The warrant must contain the following:

• Identity of the person or property to be tracked.

• Identity of the magistrate judge to whom the return on 

the warrant will be made. 

• A reasonable period of time that the device may be used. 

7 Federal Rules of Criminal Procedure 41(e)(2)(B) and 41(f)(2) specifically 

address warrants for tracking devices.

206 Electronic Law and Evidence

 
(The time will not exceed 45 days. Extensions for not 

more than 45 days may be granted for good cause 

shown.)

• 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. 

• 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.

7.6.7 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 

Electronic Law and Evidence 207
compliance with various privacy laws relating to electronic 

communications; thus, they will not provide cell phone 

information about their 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 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.

7.7 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.

7.7.1 Definitions and Purposes

(a) Pen Registers

A “pen register” captures all numbers that are being dialed out

from a specific telephone line (allowing the interceptor to learn 

what numbers a suspect is calling from that 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.8

8 The U.S. Code definition of a pen register is a “device which records or 

decodes dialing, routing, addressing, or signaling information transmitted by 

208 Electronic Law and Evidence

 
(b) Trap and Trace Devices

“Trap and trace” devices capture all numbers that are coming 

into a specified telephone line, and allows the interceptor 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.9

7.7.2 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.”

7.7.3 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, 

or United States Circuit Court of Appeals. Third, the 

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). 9 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). 

Electronic Law and Evidence 209

 
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.

7.8 Video-Only Surveillance in an REP Area

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, officers must 

obtain either a search warrant or consent. For example, if they

wish to install a video camera in a public location but do so 

such that they will record activities in the target’s curtilage or 

other private place, the government will need a search warrant. 

If the device is installed and monitors only activities in a 

location where no reasonable expectation of privacy exists, no 

search warrant is required.

210 Electronic Law and Evidence
While recognizing that Title III does not govern the use of videoonly 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. 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.

Electronic Law and Evidence 211
7.9 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 publiclyaccessible 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:

• What type of information is being sought from the ISP? 

• What type of legal document is necessary to require the 

ISP to disclose the type of information being sought?

7.9.1 Classifying the Information Being Sought

There are three types of information the government may wish 

to obtain from an ISP: (1) Basic subscriber information; (2) 

transactional records; and (3) the contents of stored 

communications.

(a) 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 of 

session times and durations; length of service (including start 

date) and types of services utilized; telephone or instrument 

212 Electronic Law and Evidence
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.”

(b) 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).

(c) 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 or 

electronic communication incidental to electronic transmission 

Electronic Law and Evidence 213
thereof,”10 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.

7.9.2 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.11 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, 

officers may always use a more stringent method to access 

information that could have been obtained with a “lesser” form 

of process. For example, the government may obtain a search 

warrant to compel the production of certain information, even if 

a § 2703(d) court order or subpoena would suffice.

(a) 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.

10 18 U.S.C. § 2510(17). 11 It is important to note that two circuit court decisions have significantly 

weakened the Stored Communications Act (SCA). In United States v. 

Warshak, 631 F.3d 266 (6th Cir. 2010) the Sixth Circuit ruled that the 

contents of any stored communications could only be obtained with a 

warrant. In U.S. v. Davis (11th Cir. 2014) the Eleventh Circuit ruled that 

stored cell tower location data could only be obtained with a warrant. 

Congress is expected to revise the SCA to codify these two decisions.

214 Electronic Law and Evidence

 
(b) Transactional Records – Court Order

To obtain “transactional records,” the government must, at a 

minimum, use a court order issued pursuant to 18 U.S.C. § 

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, the government 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.

(c) Contents – Search Warrant

The government 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. 

To require an ISP to disclose the contents of a wire or electronic 

communication, the officer must obtain a search warrant. 18 

U.S.C. § 2703(a). When using a search warrant, the officer is 

not required to give prior notice to the customer or subscriber. 

Further, the officer 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 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.”

Electronic Law and Evidence 215
7.9.3 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 officer’s need for the emails becomes apparent and an 

order is issued, those emails could be destroyed.

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) 

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.

7.9.4 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.

216 Electronic Law and Evidence
Chapter Eight

Federal Court Procedures

8.1 Introduction............................................................221

8.2 Federal Courts and Judicial Districts.......................221

8.2.1 Functions of Criminal Courts..................................221

8.2.2 Districts..................................................................221

8.3 The Federal Courts ...................................................222

8.3.1 The Supreme Court of the United States .................222

8.3.2 The Circuit Courts of Appeals .................................223

8.3.3 Classification of Offenses ........................................223

8.3.4 Federal District Courts............................................224

8.3.5 U.S. Magistrate Courts............................................224

8.3.6 Jurisdiction to Try Federal Criminal Cases..............225

8.3.7 Appointment of Justices and Judges.......................225

8.4 An Introduction to Court Documents........................225

8.4.1 Criminal Complaint ................................................225

8.4.2 Information.............................................................226

8.4.3 Indictment..............................................................226

8.4.4 Arrest Warrant........................................................227

8.4.5 Summons ................................................................227

8.4.6 “Tickets” .................................................................228

8.5 The Initial Appearance (Rule 5).................................228

8.5.1 The Initial Appearance ............................................228

8.5.2 Bringing a Defendant Before a Magistrate Judge .....228

(a) Warrantless Arrest...............................................228

(b) Arrest with a Warrant ..........................................228

(c) Appearance on a Summons..................................229

8.5.3 Non-Federal Judges for an Initial Appearance ..........229

8.6 The Officer's Responsibility Upon Arrest...................229

8.6.1 Requirement and Timing of the Initial Appearance ...230

8.6.2 Purpose and Procedure of the Initial Appearance......231

8.6.3 The Defendant’s Rights at the Initial Appearance ....231

8.6.4 Pretrial Release or Detention...................................232

8.6.5 Detention Hearings and Decision ............................233

8.6.6 Release is Preferred.................................................233

8.6.7 Bail Jumping ..........................................................234

Federal Court Procedures 217
8.7 Arrests Outside District Where Crime Committed.....234

8.7.1 Initial Appearance Options......................................234

8.7.2 Removal and Identity Hearings................................235

8.8 Diplomats, Foreign Nationals, Members of Congress, 

and Juveniles ..........................................................235

8.8.1 Diplomats ...............................................................235

8.8.2 Foreign Nationals....................................................238

8.8.3 Arresting Members of Congress...............................240

8.8.4 Arresting Juveniles .................................................241

8.9 Preliminary Hearings and Arraignments ..................242

8.9.1 Preliminary Hearings ..............................................242

8.9.2 Arraignment ..........................................................244

8.10 The Grand Jury ......................................................244

8.10.1 Purpose of the Grand Jury ....................................244

8.10.2 Selection, Empanelment, and Structure ................245

8.10.3 The Grand Jury Process........................................245

8.10.4 Sealed Indictments ...............................................247

8.10.5 Post-Indictment Grand Jury Powers......................248

8.11 Grand Jury Subpoenas............................................248

8.11.1 Power and Flexibility of Grand Jury Subpoenas ....248

8.11.2 Types of Grand Jury Subpoenas (Rule 17).............249

8.11.3 Service of Subpoenas ............................................249

8.11.4 Quashing or Modifying a Subpoena.......................249

8.11.5 Legal Requirements for a Subpoena ......................250

8.11.6 Limitations of Grand Jury Subpoenas ...................250

8.11.7 Use of Search Warrant Instead of Subpoena..........251

8.11.8 The Mechanics of Obtaining a Subpoena...............252

8.11.9 Inspector General (IG) Subpoenas .........................252

8.12 Secrecy of Grand Jury Proceedings (Rule 6(e)(2))...253

8.12.1 Exceptions to Rule 6(e)..........................................253

8.13 Documents Used to Formally Accuse a Defendant.257

8.14 Defense Access to Government Evidence..............258

8.14.1 The Brady Doctrine...............................................259

8.14.2 Disclosure under Giglio.........................................259

8.14.3 The Jencks Act and Rule 26.2...............................261

8.14.4 Discovery under Rule 16 .......................................262

8.14.5 eDiscovery ............................................................264

8.14.6 Continuing Duty to Disclose..................................268

8.14.7 Sanctions for Non-Compliance ..............................268

218 Federal Court Procedures
8.15 Venue and Transfer ..............................................268

8.16 The Statute of Limitations and Speedy Trial Act...270

8.16.1 Statute of Limitations............................................270

8.16.2 The Speedy Trial Act .............................................272

8.17 Officers and Presentencing Investigations and 

Reports .................................................................273

Federal Court Procedures 219
NOTES

220 Federal Court Procedures
8.1 Federal Court Procedures - Introduction 

This chapter discusses how the federal courts operate, focusing 

on the law enforcement officer’s 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), 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.

8.2 Trial Courts, Appellate Courts, and Judicial Districts

8.2.1 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 party

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.

8.2.2 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 – the Virgin Islands, Guam, and the 

Northern Mariana Islands) has at least one judicial district. 

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.

Officers must know district boundaries because many functions 

Federal Court Procedures 221
can be performed only in a certain district. For example, 

officers 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 constitutional right to be tried in the state 

and district where the crime allegedly occurred.

8.3 The Federal Courts

8.3.1 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. Officers should familiarize themselves with the local rules 

when arriving in a new district.

222 Federal Court Procedures
8.3.2 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 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.

8.3.3 Classification of Offenses

Type Offense

(18 U.S.C. § 3559)

Maximum Possible Confinement If Convicted

Felony More than one year or death. (When the 

death penalty is possible, the offense is 

also known as a “capital offense.”

Class A 

Misdemeanor

One year or less, but more than 6 

months.

Class B 

Misdemeanor

6 months or less, but more than 30 days

Class C 

Misdemeanor

30 days or less, but more than 5 days

Infraction 5 days or less

Class B Misdemeanors, Class C Misdemeanors, and 

Infractions are collectively known as Petty Offenses.

Federal Court Procedures 223
8.3.4 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.

8.3.5 U.S. Magistrate Courts

Every district has one or more magistrate judges who are 

appointed by the District Court judges. Officers 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, an officer would take an arrested 

felon 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.

224 Federal Court Procedures
8.3.6 Review of Jurisdiction to Try Federal Criminal Cases

Type Offense Where the case will 

be tried

Felony District court.

Class A Misdemeanor Magistrate court if the 

defendant consents. If no 

consent, in district court.

Petty Offenses

(Class B and C Misdemeanors 

and Infractions)

Magistrate court.

8.3.7 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 (usually eight years). The 

district court judges may re-appoint a magistrate judge for one 

or more successive terms. 

8.4 An Introduction to Court Documents 

Officers 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.

8.4.1 Criminal Complaint

Law enforcement officers will prepare criminal complaints. A 

criminal complaint states a charge along with facts establishing 

probable cause that the crime was committed and that 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 

Federal Court Procedures 225
arrest warrant or summons, or to state the charge when making 

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 information. 

Felonies will usually be charged in an indictment, unless the 

indictment is waived by the defendant in a non-capital case in 

which case an information will be used. Class A misdemeanors 

will be charged in an information.

If an officer has probable cause a suspect committed an offense, 

the officer may prepare a criminal complaint and obtain an 

arrest warrant. (Instead of an arrest warrant, the officer may 

elect to obtain a summons.) With probable cause, an officer 

may also arrest a suspect without obtaining an arrest warrant. 

In that case, the officer will prepare a criminal complaint after 

the arrest but before taking the arrested person before a judge. 

8.4.2 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.

8.4.3 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.

226 Federal Court Procedures
8.4.4 Arrest Warrant

An arrest warrant is issued by a judge and commands that a 

defendant be arrested and brought before the court. The arrest 

warrant identifies who is to be arrested and the offense. 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. 

8.4.5 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. 

Federal Court Procedures 227
8.4.6 “Tickets” 

A citation or violation notice is similar to a traffic ticket and is 

issued by an officer. 

8.5 The Initial Appearance (Rule 5) 

8.5.1 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. 

8.5.2 Methods of Bringing a Defendant Before a Magistrate 

 Judge 

(a) Warrantless Arrest 

Officers typically make warrantless arrests when they have 

probable cause that the defendant committed a felony offense or 

when a misdemeanor was committed in their presence. Since 

the defendant has the right to know of the charges for which he 

has been arrested, the officer must prepare a criminal 

complaint after the defendant is arrested and before taking the 

defendant to the initial appearance. (Felony and misdemeanor 

arrest authority is covered in the Fourth Amendment section of 

this handbook). 

(b) Arrest with a Warrant 

Officers may obtain arrest warrants in several ways. 

1. With a Criminal Complaint

The officer prepares a criminal complaint, swears to it before a 

magistrate judge and requests an arrest warrant. 

2. With an Indictment

228 Federal Court Procedures
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. 

3. With an Information

If the AUSA has filed an information, an officer may obtain an 

arrest warrant by presenting the information to a judge and 

requesting a warrant.

(c) Appearance on a Summons

Instead of obtaining an arrest warrant with a criminal 

complaint, indictment or information, officers may obtain a 

summons. The summons will direct the defendant to appear in 

court for an initial appearance without being arrested.

8.5.3 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. Federal law 

enforcement officers should avoid using state or local judges to 

issue federal warrants or conduct federal proceedings except in 

exigent circumstances and only after first coordinating with 

your AUSA. 18 U.S.C. § 3041.

8.6 The Officer’s Responsibility upon Arrest - The Initial 

Appearance

After an arrest but before the initial appearance, the officer 

must 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 

Federal Court Procedures 229
without a warrant, and a criminal complaint, indictment, or 

information has not already been prepared, the officer must 

prepare a criminal complaint.

8.6.1 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 may

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 that delay would be 

deemed necessary, and any statements made could probably 

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 can be seen by a court as unnecessary and 

statements may be lost. So, if a magistrate is readily available, 

and a 2 hour interview is begun 5 hours after an arrest, 

statements given during the first hour will be usable, but those 

made in the second hour might not be. 

230 Federal Court Procedures
The Supreme Court has never defined exactly what 

“unnecessary delay” is, but a good rule of thumb is that the 

officer should ordinarily have the defendant in court for an 

initial appearance the next time the Magistrate Judge holds 

court following the defendant’s arrest. The officer 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, the officer 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.

8.6.2 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.

8.6.3 The Defendant’s Rights at the Initial Appearance

The judge informs the defendant of the charge usually by 

providing the defendant with a copy of the indictment, 

information, or criminal complaint, or by having the AUSA 

describe the charges pending against the defendant. The 

defendant will be told of his right to retain counsel, and if the 

defendant cannot afford counsel, the right to have counsel 

appointed. The defendant will also be told how he can secure 

pretrial release, the defendant’s right not to make a statement, 

and that any statement made can be used against him.

Federal Court Procedures 231
8.6.4 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 with 

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:

(a) 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 the 

government believes that detention is warranted, the officer 

should 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 

the officer.

(b) Judge’s Options

At the initial appearance, the judge may:

• Release the defendant on his own recognizance,

• Release the defendant on condition or conditions that 

232 Federal Court Procedures
may include bail,

• Conduct a detention hearing if the attorneys for both

sides are prepared to proceed, or

• Temporarily detain the defendant until the detention 

hearing can be held.

(c) 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 restrictions; medical evaluation and 

treatment requirements; bail; limited custody when the 

defendant is not at work; and “tethering” by electronically 

monitoring the defendant’s location.

8.6.5 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.

8.6.6 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 or the community. The 

judge will consider the seriousness of the charged offense, the 

Federal Court Procedures 233
strength of the case, criminal history, and the possible danger 

that the defendant may present to the community.

8.6.7 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 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.

8.7 Arrests Outside the District Where the Crime was 

Committed

If the defendant is arrested in the district where the crime 

occurred, the officer 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.

8.7.1 Initial Appearance Options

When the defendant is arrested 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. The officer may take the 

defendant to a district that meets the following criteria:

1. The district in which the defendant was arrested, or

2. An adjacent district (a district that touches the 

 district of arrest) if:

• The initial appearance can occur more promptly in 

234 Federal Court Procedures
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 arrest.

8.7.2 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 the

officer 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.

8.8 Diplomats, Foreign Nationals, Members of Congress, 

and Juveniles

8.8.1 Diplomats

(a) Diplomatic Immunity

Diplomats are representatives of foreign countries who work in 

the United States on behalf of the government of that foreign 

country. In order to enjoy status as a diplomat, a foreign 

government representative must be officially recognized by the 

U.S. Government.

Diplomatic immunity is based on international law and treaties 

Federal Court Procedures 235
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.

(b) Verifying the Status of Diplomats

There are many levels of diplomatic immunity; this chapter will 

only discuss those with full diplomatic immunity. When 

encountering suspects who claim diplomatic immunity, officers 

should 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, officers 

should verify the claimed status of every person by calling the 

Department of State at the Diplomatic Security Command 

Center (DSCC) at 571/345-3146. DSCC will respond with 

diplomatic status and degree of immunity.

If the State Department does not verify the person’s diplomatic 

status, the officer may treat the person as any other suspect.

(c) 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, their vehicle, or 

personal belongings unless necessary for officer 

safety.

236 Federal Court Procedures
(d) Traffic Incidents Involving Diplomats

Law enforcement officers can 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) the officer 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, officers should contact 

supervisors 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, 

the officer must use common sense to secure the car keys or 

perhaps block the car so the diplomat cannot drive it. The 

officer 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. The officer should notify a superior and 

the diplomat’s embassy, and offer protection to the potential 

victim of an assault. If the diplomat presents a threat of injury 

to the officer or another, use reasonable force to prevent injury. 

However, the officer still may not arrest.

The officer should 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.

Federal Court Procedures 237
By law, a foreign embassy or diplomatic mission must be 

treated as foreign (non-U.S.) soil. Even with a search or arrest 

warrant, the officer may not enter these places without 

permission from the foreign nation.

8.8.2 Foreign Nationals1- 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.

(a) Arrests/Detentions – Advising of Right to Consular 

 Notification

Whenever a foreign national is arrested or detained in the 

United States, there are legal requirements to ensure that the 

foreign national’s government has the opportunity to offer 

him/her appropriate consular assistance. In all cases, the 

foreign national must be told of the right of consular 

notification and access. In most cases, the foreign national 

then has the option to decide whether to have consular 

representatives notified of the arrest or detention. Neither the 

gravity of the charges, nor the immigration status of the 

1 The Legal Divison thanks the U.S. Department of State Bureau of Consular 

Affairs for submitting the following material for this chapter. 

238 Federal Court Procedures

 
individual, is relevant to the consular notification decision; the 

only triggering factor is arrest or detention of a non-U.S. citizen. 

1. 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: 

the officer 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. 

2. 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,” the officer 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.

(b) Consular Access

Detained foreign nationals are entitled to communicate with 

their consular officers. Any communication by a foreign 

national to his/her consular representatives must be forwarded 

by the appropriate local officials to the consular post without 

delay. Foreign consular officers must be given access to and 

allowed to communicate with their nationals who are being held 

in detention. Further, they are entitled to provide consular 

assistance, such as arranging for legal representation and 

Federal Court Procedures 239
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.

(c) 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.

(d) 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.

(e) 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.

8.8.3 Arresting Members of Congress

(a) Privilege from Arrest

Members of congress are privileged from arrest while Congress 

is in session and while attending, or going to and from, sessions 

of Congress. (Art.1, Section 6 of the U.S. Constitution.) The 

privilege does not prohibit issuing traffic and other citations, 

investigating and preparing reports, serving a subpoena or 

summons, or prosecution for a crime.

(b) Exceptions to the Privilege

Even if attending congressional sessions or on the way to and 

240 Federal Court Procedures
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, officers

should investigate and document the breach of the peace and 

then submit findings to superiors. No arrest should be made 

unless authorized by superiors in consultation with the U.S. 

Attorney’s Office. 

8.8.4 Arresting Juveniles

A juvenile is a person who is under the age of 18. There are 

special procedures that must be followed when arresting a 

juvenile:

• Immediately advise the juvenile of their Miranda

rights in words that a juvenile can understand even 

if there is no intention 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 the juvenile’s 

legal rights under Miranda. (It is the officer’s 

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, the 

government must allow it), and

• Take the juvenile forthwith before a United States

magistrate judge. (“Forthwith” requires more speed 

than “without unnecessary delay”), and

• Do not make a media release. The government 

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. (See 18 

USC §§ 5031-5038.)

Federal Court Procedures 241
The officer may and should investigate the case as any other. If 

the juvenile understands and waives his Miranda rights, the 

officer 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 an officer intends or expects to arrest a juvenile, he or 

she should attempt to obtain the approval and guidance of the 

AUSA before the arrest.

8.9 Preliminary Hearings and Arraignments

8.9.1 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.

(a) 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. The officer may testify at preliminary 

242 Federal Court Procedures
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 

testimony at a later proceeding.

(b) 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 a person is arrested in a district other than where the 

crime occurred and the initial appearance is held in the district 

of arrest, the defendant may elect to have the preliminary 

hearing in the district where the crime occurred.

Preliminary hearings consume resources, expose government 

witnesses to cross-examination, may compromise sensitive 

information, and may force the government to disclose 

information prematurely. Processing a case in a way to avoid 

having a preliminary hearing is a legitimate tactic. For 

example, if an indictment or information is obtained before the 

arrest, the defendant is not entitled to a preliminary hearing. In 

many situations, however, it may be appropriate to arrest before 

the indictment or information is obtained, as illustrated by the 

below examples:

Federal Court Procedures 243
• The danger that a defendant may harm another, flee, or 

destroy evidence may require an immediate arrest.

• Before an indictment can be obtained, the government 

may realize the defendant may be in possession of 

evidence at a particular time and wish to take advantage 

of a search incident to arrest.

8.9.2 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; and (3) 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.

8.10 The Grand Jury

8.10.1 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. 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 of a Grand Jury....” Accordingly, if 

244 Federal Court Procedures
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 officers 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.

8.10.2 Selection, Empanelment, and Structure

Grand jurors are selected by a random drawing, usually by the 

Clerk of Court, from a “pool” consisting of registered voters. 

Grand jurors must be U.S. Citizens, at least 18 years of age, 

proficient in English, and have no felony convictions or pending 

prosecution. Federal grand juries consist of 23 such persons 

who generally serve for 18 months; however, the court may 

discharge the jury earlier or extend the jury’s service six 

additional months. When the grand jury sits, there must be a 

minimum of 16 grand jurors present.

8.10.3 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 

Federal Court Procedures 245
the grand jury is empanelled by a district court judge and 

legally functions under the judge’s supervision, the AUSA 

presents the case to the grand jury, calls and examines 

witnesses, issues subpoenas in the name of the grand jury, and 

presents the proposed indictment.

Grand jury proceedings are secret and not open to the public. 

Grand jury secrecy ensures that untested and uncorroborated 

information is not leaked to the public. Secrecy also helps 

witnesses be more forthcoming and preserves the integrity of a 

criminal investigation. (The details of grand jury secrecy 

principles are discussed in a later section.) When testimony is 

presented to the grand jury, only certain people may be present: 

the AUSA; one witness at a time; an interpreter (if needed); a 

court reporter; and the members of the grand jury. Officers 

who testify will not be present to hear the testimony of other 

witnesses. Neither the target of a grand jury, nor the target’s 

attorney, has the right to be present. Even if the target testifies, 

the target’s attorney is not allowed to be present; however, at 

the AUSA’s discretion the target may be allowed the opportunity 

to consult briefly with his attorney outside of the grand jury 

room. When the grand jury is deliberating and voting on the 

indictment, only the grand jury members may be present.

A “target” is a possible defendant. Infrequently, the AUSA may 

invite the target to testify before the grand jury. The target may 

refuse to testify if the testimony would be incriminating. The 

target could be given immunity and compelled to testify, but 

that is rarely done because immunized testimony cannot be 

used against the target at a later date.

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 

246 Federal Court Procedures
required to lay a full foundation for evidence. In a “routine” 

case, a one-officer 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). Grand jury witnesses must be 

accurate in their testimony because they may and likely will be 

cross-examined concerning any conflicts between trial and 

grand jury testimony.

A “true bill of indictment” requires the agreement of at least 12 

of the grand jurors that there is probable cause that a crime 

was committed and that the defendant committed it. If the 

grand jury votes a true bill, the foreperson and AUSA sign the 

indictment. The indictment is then “returned” (reported) to the 

judge in open court unless the indictment is sealed. Once an 

indictment is returned, the indictment may be used to obtain 

an arrest warrant or summons. The warrant or summons will 

be signed by the clerk of court. 

If less than 12 of the grand jurors vote for indictment, a “no bill” 

results, and that is reported to the judge. If the grand 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.

8.10.4 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 

Federal Court Procedures 247
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. Officers may also be involved in 

cases with indictments being sought in several districts. By 

having an indictment sealed, the government may coordinate 

multiple arrests to avoid tipping off defendants. Rule 6(e)(4).

8.10.5 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.

8.11 Grand Jury Subpoenas

8.11.1 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 an 

officer’s reach. Consider the following situations about how 

officers often collect evidence and in parenthesis, the limitations 

faced.

• The officer may seek consent to search. (But the person

may refuse consent.)

• A witness may agree to an interview. (But an officer 

cannot force a person to submit to an interview.)

• An officer may request a search warrant. (But there may 

248 Federal Court Procedures
not be probable cause for the warrant.)

• An officer 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, the officer should consider whether a 

grand jury subpoena would meet the needs of the government. 

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; (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.

8.11.2 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.

8.11.3 Service of Subpoenas

While the Rules specifically provide for service by U.S. 

Marshals, officers may, and often will, serve subpoenas in their 

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.

8.11.4 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 

Federal Court Procedures 249
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.

8.11.5 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.”

8.11.6 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 (noncriminal) matters.

• Fifth Amendment (self-incrimination) and other privileges 

apply. A subpoena may not compel a person to provide 

self-incriminating testimony. Persons who legitimately 

claim a privilege against self-incrimination may be 

compelled to testify if given a grant of immunity. 

Immunized testimony may not be used against the 

immunized 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, psychotherapistpatient, 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, an officer serves a 

250 Federal Court Procedures
subpoena on the witness implying that if the witness 

submits to an interview, the subpoena will be withdrawn. 

This is an improper use of grand jury powers. On the 

other hand, if the officer serves a subpoena on a person, 

and if the witness then indicates willingness to be 

interviewed, the officer may lawfully conduct the 

interview. The 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.

8.11.7 What to Do When a Serving a Subpoena May Result 

 in the Destruction of Evidence - Using a Search 

 Warrant

In some cases, officers 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, the officer 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, the officer

should consider obtaining a search warrant. A search warrant 

has several advantages over a subpoena: the government selects

when the search warrant is executed; officers can find the item

themselves, thereby denying the suspect an opportunity to 

destroy the evidence; evidence found in plain view during the 

Federal Court Procedures 251
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.

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.

8.11.8 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 officers need a subpoena, they should contact the AUSA’s 

office and request one.

8.11.9 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.

252 Federal Court Procedures
8.12 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 officers 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 the officer was a 

witness);

• The testimony of a witness (including the officer’s 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.

8.12.1 Exceptions to Rule 6(e) 

Exceptions to Rule 6(e)’s secrecy requirement are as follows:

(a) 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.

Federal Court Procedures 253
(b) 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 officers. The remainder of this section will discuss only 

release of grand jury matters by the AUSA.

(c) Access to Grand Jury Matters

The existence of grand jury matters is of little value unless the 

officer can have access and use them. Grand jury matters, 

however, may not be released to just anyone and may be 

released only for limited purposes on a “need to know” basis. 

The AUSA can give the following groups access to grand jury 

matters for the purposes indicated:

• Federal and state officers for the purpose of enforcing 

federal criminal law. Grand jury matters cannot be 

released for civil law purposes.

• Another AUSA for purposes of enforcing federal criminal 

laws.

• 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.)

• 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 

254 Federal Court Procedures
be given to a wide variety of entities. Rule 6(e)(3)(D) 

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).

(d) The 6(e) list

Officers need, and may use, grand jury matters to conduct 

criminal investigations. The AUSA who is assigned to the 

investigation may authorize officers to have access to grand jury 

materials for that purpose and on a case-by-case basis. If the 

officer needs access to grand jury matters, request approval 

from the AUSA. Officers from other agencies, or those in the

chain of command who need grand jury information, must also 

obtain approval from the AUSA.

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.” Officers may disclose grand jury 

matters only to those on the 6(e) list.

Consider the following examples of when grand jury matters 

may or may not be disclosed:

• Officer is on a task force with officer B. The officer is 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.

• Officer testified as a grand jury witness targeting a local 

politician. While out with friends at dinner, the friends 

(who are not on the 6(e) list) start discussing rumors that 

the politician is about to be indicted. The officer may 

neither disclose that he was a grand jury witness nor 

Federal Court Procedures 255
reveal 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. The officer 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 the officer’s 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 an officer prepares a financial analysis 

that shows that the target of an investigation has been spending 

more money than all known sources of income combined. The

analysis is based both upon documents subpoenaed by the 

grand jury as well as on documents and information from non 

grand jury sources. If the analysis does not identify or refer to 

the source of information as grand jury matter, the officer may 

reveal the analysis to those not on the 6(e) list. However, if the 

analysis does reveal that grand jury matters are involved, the 

officer 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.

256 Federal Court Procedures
8.13 Documents Required to Formally Accuse a Defendant

Before trial, the government, the 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 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.

Federal Court Procedures 257
Type of Offense Court Minimum

Charging 

Document

Capital District Indictment only

Non-capital Felony District Indictment, unless 

waived, and then 

by information

Misdemeanor District Information

Class A Misdemeanor Magistrate Complaint

Petty Offenses Magistrate Citation or 

violation notice

A defendant charged with a Class A misdemeanor will be tried 

in magistrate court if the defendant consents. If a defendant 

charged with a Class A misdemeanor does not consent to be 

tried in magistrate’s court, the defendant will be tried in district 

court. When a misdemeanor is tried in district court, the AUSA 

will ordinarily prepare an information even if there is already a 

criminal complaint.

8.14 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 disclosed to 

the defense under one or more of the following sources of 

authority: (1) the Brady doctrine; (2) the Giglio case; (3) the 

Jencks Act/Rule 26.2; and (4) Federal Rule of Criminal 

Procedure 16. 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.

258 Federal Court Procedures
8.14.1 The Brady Doctrine

In the Supreme Court case of Brady v. Maryland2, the 

defendant was convicted and sentenced to death for first-degree 

murder committed in the course of a robbery. The government 

knew, but Brady did not, that Brady’s accomplice had confessed 

to the actual murder. The United States Supreme Court later 

reversed Brady’s conviction because this information was not 

disclosed to the defense and thus the “Brady Doctrine” was 

born.

The Brady doctrine requires that the government tell the 

defense of any exculpatory (favorable) evidence known to the 

government. Exculpatory evidence is that which would cast 

doubt on the defendant’s guilt or might lessen the defendant’s 

punishment. The defense does not have to request the 

information - if the government knows of it, it must be 

disclosed. Brady materials must be provided a reasonable time 

in advance of trial so the defense may have a reasonable 

opportunity to decide how to use the information. 

8.14.2 Disclosure under Giglio

The Supreme Court case of United States v. Giglio requires the 

government to disclose information that tends to impeach any 

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

companion book, Legal Division Reference Book.

Examples of Brady Materials

• Evidence that another may have committed the charged 

offense.

• Information supporting an alibi.

• Information supporting an affirmative defense 

(such as entrapment or self defense).

• Exculpatory (favorable) material.

- The defendant may not be guilty.

- Information that could lessen the defendant’s 

punishment.

Federal Court Procedures 259

 
government trial witness, including law enforcement officers. 

“Impeachment” is information that contradicts a witness or 

which may tend to make the witness seem less believable. 

Officers 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 law enforcement 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.

260 Federal Court Procedures
8.14.3 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. § 3500. 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 the officer shows a witness notes taken during an 

interview, for example, to have the witness confirm the 

accuracy of the notes, the notes may thereby become that 

witness’s “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’s grand jury testimony.

• The officer’s own notes may qualify as a Jencks Act 

statement if the officer testifies or, as stated above, when 

a witness is shown the notes and vouches for their 

accuracy (an adopted statement). The officer must 

therefore safeguard notes, including original rough notes 

of interviews and other activities, even if they are later 

formalized or included in other reports. Determine 

agency and local AUSA policy concerning safeguarding 

notes.

Federal Court Procedures 261
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 (nonexculpatory statement) is not otherwise discoverable. If that 

witness testifies at a trial or hearing, however, the statement 

must be given to the defense under the Jencks Act or Rule 26.2.

8.14.4 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 the law enforcement officer, respond to discovery 

requests. The officer’s 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 includes most statements 

262 Federal Court Procedures
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.

• 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 (trial exhibits).

• 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 recorded (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.)

Federal Court Procedures 263
• 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.

Discovery Review:

Brady = Exculpatory

Giglio = Impeachment of trial witnesses

Jencks Act and 

Rule 26.2

= Prior statements of witnesses

 (Includes adopted statements)

 Jencks Act = @ Trial

 Rule 26.2 = @ hearing before or after trial

Rule 16 Most of Defendant’s statements 

(Known to the government)

Criminal History 

Scientific tests

Trial Exhibits

Defendant’s property

8.14.5 eDiscovery in Federal Criminal Investigations and

 Prosecutions

In our digital world with its proliferation of electronic devices, 

electronically stored information (ESI), electronic 

communications (eCommunications), and social media, much of 

the discovery material the government must disclose will be in 

electronic format. This reality requires procedures be 

implemented to capture, preserve, and manage ESI and 

eCommunications to meet the government’s obligations. Speed, 

efficiency, and ease of sharing are real benefits of using this 

technology, but there are risks as well. Electronic 

communications are often hastily prepared, quickly sent, and 

may not be as complete as formal documents. The abbreviated 

nature of these communications and the lack of context create a 

264 Federal Court Procedures
significant danger of misinterpretation. When conducting 

criminal investigations and prosecutions, agents should strive 

to take advantage of the technology while minimizing the risks.

• ESI. For investigations, creating, obtaining, seizing, and 

maintaining ESI is primarily a function of case 

organization and management. There are numerous 

software systems that perform well, and agencies typically 

pick one that fits their kind of cases best. For 

prosecutions, there are a number of presentation software 

systems that perform well, and prosecution offices 

typically pick one that fits best.

• Electronic Communications. The creation, capture, 

storage, and disclosure of eCommunications during the 

course of an investigation and prosecution of a federal 

criminal case is another matter. It can be a huge, costly 

undertaking to find and assemble all of the case related 

eCommunications. But those deemed discoverable must 

be turned over to the defense in full compliance with the 

government’s obligations. The guiding principle is this: 

Any potentially discoverable information and 

communication should be preserved and delivered to the 

prosecutor.

 

The Department of Justice, Deputy Attorney General 

Memorandum on Guidance on the Use, Preservation, and 

Disclosure of Electronic Communications in Federal Criminal 

Cases, March 30, 2011, establishes best practices for how 

eCommunications should and should not be used during the 

investigation and prosecution of a federal criminal case and 

how to capture and store these communications to ensure that 

the government meets its discovery obligations. These best 

practices recognize the scope of the issue, define terms, and set 

out the responsibilities of all those involved in the investigation 

and prosecution of federal criminal cases. (A copy of this 

memorandum is included in the Legal Division Reference Book.)

Federal Court Procedures 265
Key concepts:

What are "eCommunications"? They include e-mail, text 

messages, instant messages, and short message services such 

as tweets, pin-to-pin, social networking sites, bulletin boards, 

and blogs. They can be broken down into three categories –

Substantive, Logistical, and Privileged.

• Substantive Communications contain factual information 

about the case, including: information about investigative 

activity; information from interviews or interactions with 

victims, witnesses, potential witnesses, informants, 

cooperators, and experts; discussions about the merits of 

evidence; and information regarding the credibility or bias 

of witnesses.

• Logistical communications include those that contain:

travel information; dates, times, and locations of hearings 

or meetings; and those that transmit reports. Generally, 

purely logistical communications are not discoverable.

• Privileged Communications include those that contain: 

attorney-client privileged communications; attorney work 

product communications; deliberative process 

communications; and protected communications, which 

are those covered by Federal Rule of Criminal Procedure 

16(a)(2). Generally, so long as any discoverable facts in 

them are disclosed in other materials, privileged and 

protected communications are not discoverable.

When drafting and using eCommunications during and as part 

of an investigation and prosecution, first consider whether ecommunication is appropriate to the circumstances or whether 

an alternative form of communication, such as a formal report 

or telephone call, is a better choice. Don’t send substantive, 

case-related eCommunications unless absolutely necessary and 

only to those with a need to know. If you do use 

eComminications, be professional. When sending substantive 

eCommunications, write them like a formal report with accurate 

and complete facts. Avoid witticism, careless commentary, 

266 Federal Court Procedures
opinion, and over familiarity. Limit eCommunications to a 

single case and make non-prosecution team members aware 

that eCommunications are a record and that they may be 

disclosed to the defense.

Preserving eCommunications. Each person who is the creator, 

sender, forwarder, or the primary addressee of an eCommunication needs to preserve it. If none of the above apply, 

then each person who is a secondary recipient (in the “cc” or 

“bcc” line) needs to preserve it. Preserve all potentially 

discoverable eCommunications, including attachments and 

threads of related eCommunications. “All Potentially 

Discoverable eCommunications” includes all substantive 

eCommunications created or received during the investigation 

and prosecution. It includes all eCommunications sent to or 

received from non-law enforcement potential witnesses,

regardless of content. It also includes eCommunications that 

contain both potentially privileged and unprivileged substantive 

information. If not sure, err on the side of preservation. Purely 

logistical eCommunications need not be preserved.

Preserve as soon as possible, but no later than 10 days after the 

eCommunication is sent or received. Be sure to preserve before 

agency or department systems automatically delete messages 

because of storage limitations or retention policies. Use secure 

permanent or semi-permanent storage associated with the 

particular investigation and prosecution. For e-mail, create a 

specific folder to which messages can be moved. If this is not 

possible, messages can be printed and put it in the criminal 

case file. Preserve eCommunications in their native e-format

whenever possible.

As with all discovery materials, each person involved in the case 

must provide all potentially discoverable eCommunications for 

the prosecutor to review to determine what should be produced 

in discovery. Let the prosecutor know if there are 

eCommunications that deserve especially careful scrutiny 

because disclosure could affect the safety of any person, reveal 

sensitive investigative techniques, compromise the integrity of 

another investigation, or reveal national security information.

Federal Court Procedures 267
The goal of these best practices is to reduce the volume of 

potentially discoverable eCommunications and establish a 

system to manage them. That reduces the time and costs of 

managing discovery and ensures full compliance with the 

government’s ethical and legal discovery obligations.

8.14.6 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.

8.14.7 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 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.

8.15 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. 

268 Federal Court Procedures
Venue affects how an officer performs his or her 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 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. 

Federal Court Procedures 269
• 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 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.

8.16 The Statute of Limitations and Speedy Trial Act

8.16.1 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 

270 Federal Court Procedures
statute of limitations for a capital offense.

It is helpful to view the statute as a clock. The clock starts, that 

is, the statute starts to run, the day after the offense is 

completed. The clock runs until the defendant is indicted or an 

information is filed. If at the time of indictment or information 

the clock is not yet at the 5-year point, prosecution may 

proceed. If the clock has reached or passed the 5-year point, 

prosecution is barred. A statute of limitations runs even 

though the government does not know the defendant’s identity.

An example of the computation for the general statute of 

limitations:

8/31/2000 Crime committed.

9/1/2000 First day of running of the statute.

8/31/2005 Last day to secure an indictment or 

information. 

9/1/2005 Prosecution barred, unless indictment or 

information has been obtained.

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.

Federal Court Procedures 271
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 – Defendant is a fugitive from 

9/30/2001 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.

8.16.2 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 

implement 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:

An indictment or information must be filed within 30 days of 

the date of arrest or service of a summons.

272 Federal Court Procedures
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, or prevent flight, notify the 

AUSA immediately.

8.17 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. 18 U.S.C. § 3593.

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 

Federal Court Procedures 273
characteristics, including any prior criminal record, financial 

condition, and any circumstances affecting the defendant’s 

behavior that may be helpful in imposing sentence. (Rule 32)

The officer may be asked to provide certain information to the 

U.S. Probation Officer in the form of a witness interview or 

otherwise. The officer should comply with these requests. 

While most of the information for a PSR is available through 

sources other than the officer, some may only be available using 

the investigative file prepared by the government. If the officer 

has information that would assist the probation officer, he or 

she should make it available, and assist Probation Services to 

ensure that the report contains complete and accurate 

information.

274 Federal Court Procedures
Chapter Nine

Fourth Amendment

9.1 The Fourth Amendment - Introduction....................281

9.2 Governmental Action...............................................281

9.3 A Fourth Amendment “Search”................................282

9.3.1 Jones Analysis – Trespass.......................................282

9.3.2 Katz Analysis – Reasonable Expectation of Privacy ..283

9.3.3 Common “Search” Areas .........................................285

(a) The Body...............................................................285

(b) Vehicles ................................................................285

(c) Homes...................................................................286

(d) Containers ............................................................287

(e) Curtilage and Open Fields .....................................288

(f) Government Workplaces ........................................290

(g) Abandoned Property ..............................................291

(h) Mail ......................................................................292

9.3.4 Methods and Devices ..............................................293

(a) Canine Sniffs ........................................................293

(b) Sensory Enhancements.........................................293

(c) Aircraft Overflights ................................................294

9.4 A Seizure.................................................................294

9.4.1 Police-citizen Encounters ........................................294

9.4.2 Consensual Encounters (Voluntary Contacts) .........295

9.4.3 Investigative Detentions (Terry Stops)......................296

(a) The Requirements .................................................296

(b) Establishing Reasonable Suspicion .......................297

(c) Factors Justifying Investigative Detentions ............299

(d) Duration of an Investigative Detention...................300

(e) Use of Force During an Investigative Detention......300

(f) Going From Investigative Detention to Arrest..........301

9.4.4 A Terry Frisk...........................................................302

(a) Factors Used to Justify a Terry Frisk.....................302

(b) The “Plain Touch” Doctrine ...................................303

9.4.5 Detaining Vehicles ..................................................304

(a) Permissible Actions During Vehicle Stops..............304

(b) Terry “Frisk” of a Vehicle.......................................305

(c) Duration of Vehicle Stops ......................................305

(d) Pretextual Vehicle Stops........................................306

Fourth Amendment 275
9.4.6 Arrests....................................................................306

9.5 The Use of Race in Law Enforcement .......................306

9.5.1 The Constitutional Framework................................307

9.5.2 Guidance for Federal Officials Engaged in Law

 Enforcement Activities ............................................308

9.5.3 National and Homeland Security and Intelligence 

 Activities.................................................................311

9.6 Probable Cause (PC) .................................................312

9.6.1 Defining Probable Cause .........................................312

9.6.2 The Test for Probable Cause....................................313

9.6.3 Establishing Probable Cause...................................313

9.6.4 Using Confidential Informants to Establish

 Probable Cause.......................................................314

9.7 The Exclusionary Rule.............................................316

9.7.1 The Rule .................................................................316

9.7.2 The Exceptions .......................................................317

9.8 The Plain View Seizure Doctrine ..............................319

9.8.1 Lawful Position of Observation ................................319

9.8.2 The Incriminating Nature of the Item

 Must Be Immediately Apparent...............................319

9.8.3 Lawful Right of Access ............................................320

9.9 Arrest Warrants .......................................................321

9.9.1 Arrest Warrant upon Complaint..............................321

9.9.2 Arrest Warrant Upon Indictment or Information......321

9.9.3 The Form of a Federal Arrest Warrant .....................322

9.9.4 Technical Aspects of Executing Arrest Warrants......322

9.9.5 Manner of Execution...............................................323

9.9.6 Return of the Arrest Warrant ..................................323

9.10 Arrests ..................................................................323

9.10.1 Arrest Authority ....................................................323

9.10.2 Arrests Based on Outstanding Arrest Warrants .....324

9.10.3 Entering a Home to Make an Arrest.......................325

9.10.4 Warrantless Arrests ..............................................327

9.11 Title 18 U.S.C. § 3109............................................328

9.11.1 The Statute ...........................................................328

9.11.2 The Primary Purposes of the Statute .....................329

9.11.3 A “Breaking” Under the Statute.............................329

9.11.4 Requirements Under the Statute ...........................329

9.11.5 Exigent Circumstances and § 3109 .......................331

9.11.6 Violations of § 3109 and Suppression of Evidence .332

276 Fourth Amendment
9.11.7 No-Knock Warrants...............................................333

9.12 Protective Sweeps...................................................334

9.12.1 What is a Protective Sweep? ..................................334

9.12.2 Scope of a Protective Sweep...................................334

9.12.3 Timing of the Protective Sweep ..............................334

9.12.4 Two Kinds of Protective Sweeps.............................335

9.12.5 When the Arrest Occurs Outside the Home ...........336

9.13 Searches Incident to Arrest ...................................336

9.13.1 Rationales for the Rule..........................................336

9.13.2 Requirements for a Search Incident to Arrest ........337

9.13.3 Scope of a Search Incident to Arrest......................338

9.13.4 Vehicles and Search Incident to Arrest..................340

9.14 Issuance of Federal Search Warrants......................342

9.14.1 Who May Request a Federal Search Warrant? .......342

9.14.2 Who May Issue a Federal Search Warrant? ...........343

9.14.3 Jurisdictional Requirements .................................343

9.14.4 Neutral and Detached Requirement.......................345

9.15 The Components of a Search Warrant Affidavit ......345

9.15.1 Establishing a Nexus ............................................346

9.15.2 Anticipatory Search Warrants ...............................347

9.15.3 Particularity- The Place to Be Searched.................347

9.15.4 Particularity - the Persons or Things to be Seized ..349

9.15.5 Types of Items That Can Be Seized........................350

9.15.6 False or Misleading Statements in the Affidavit .....350

9.16 Telephonic Search Warrants ..................................351

9.16.1 Purpose of Rule 4.1...............................................351

9.16.2 Telephonic Warrants and Exigent Circumstances..351

9.16.3 Who Can Issue Telephonic Warrants? ...................352

9.16.4 Procedural Requirements ......................................352

9.16.5 Recording and Certification Requirements.............354

9.17 Executing Federal Search Warrants........................354

9.17.1 Who May Execute a Federal Search Warrant? .......355

9.17.2 When May a Federal S.W. Be Executed?................356

9.17.3 Use of Force in Executing a Federal S.W. ..............357

9.17.4 Presenting the Warrant Prior to the Search.............357

9.17.5 Answering the Telephone While Executing 

 a Search Warrant .................................................357

9.17.6 Temporary Seizure of Weapons .............................358

9.17.7 Detaining Occupants - The Summers Doctrine.....358

9.17.8 Frisking and Searching Persons on the Premises...360

Fourth Amendment 277
9.17.9 Permissible Search Locations on a Premises..........360

9.17.10 Damage or Destruction of Property......................362

9.17.11 Preparing an Inventory........................................362

9.17.12 Providing a Copy of the Warrant and Inventory....363

9.17.13 Warrant Return...................................................363

9.18 The Carroll Doctrine..............................................363

9.18.1 Rationale for the Rule ...........................................364

9.18.2 Prerequisites for a Search Under Carroll.......... .....364

9.18.3 No “Exigency” Requirement....................................365

9.18.4 Timing of a Search Under Carroll ..........................365

9.18.5 Scope of a Search Under the Carroll......................366

9.19 Searches Based on Exigent Circumstances.............367

9.19.1 Hot Pursuit...........................................................368

9.19.2 Destruction or Removal of Evidence ......................369

9.19.3 Emergency Scene..................................................370

9.20 Consent Searches ..................................................371

9.20.1 Voluntariness .......................................................372

9.20.2 Actual or Apparent Authority ................................374

9.20.3 Scope of a Consent Search....................................375

9.20.4 Third-Party Consent Situations .............................376

9.21 Inventory Searches................................................377

9.21.1 Justifications for Inventory Searches.....................378

9.21.2 Requirements for Inventory Searches ....................378

9.21.3 Scope of Inventory Searches..................................379

9.21.4 Location of Inventory Searches..............................380

9.22 Administrative Searches........................................380

9.22.1 Sobriety Checkpoints ............................................381

9.22.2 Driver’s License and Registration Checkpoints ......381

9.22.3 Information-Gathering Checkpoints ......................381

9.22.4 Checkpoints for General Crime Control Purposes ..381

9.22.5 Administrative Inspections of Businesses ..............382

9.22.6 Security Checkpoints at Sensitive Government 

 Facilities and Airports...........................................383

9.22.7 Border Searches – In General................................385

9.22.8 Routine Border Search..........................................386

9.22.9 Non-routine Border Search ...................................386

9.22.10 Geographic Limits of the Border ..........................387

(a) Actual Border........................................................387

(b) Functional Equivalent of the Border ......................388

(c) Persons and Objects Entering the Country ............388

278 Fourth Amendment
9.22.11 Persons and Objects Leaving the Country............389

9.22.12 Other Applications-Functional Equivalent of

 the Border Concept............................................389

9.23 Foreign Searches ...................................................390

9.23.1 Searches by Foreign Authorities............................390

9.23.2 Foreign Searches of Non-Resident Aliens 

 By American Law Enforcement Officers.................391

9.23.3 Searches of United States Citizens and 

 Resident Aliens in Foreign Countries ....................392

Fourth Amendment 279
NOTES

280 Fourth Amendment
9.1 The Fourth Amendment - Introduction

The Fourth Amendment prohibits government intrusion upon 

the privacy and property rights of the people. 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. The areas specifically afforded constitutional 

protections are “persons, houses, papers, and effects.” 

9.2 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, public school officials, and state 

hospital administrators.

The Fourth Amendment does not regulate private conduct, 

regardless of whether that conduct is reasonable or 

unreasonable. Evidence of a crime that is obtained through a 

“private search” may be admissible against a defendant, even if 

the private search was conducted illegally.

Fourth Amendment 281
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.1 

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.

9.3 A Fourth Amendment “Search” 

The Fourth Amendment prohibits unreasonable “searches” and 

“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.”

The Supreme Court applies two separate tests to determine 

whether government conduct constitutes a “search” within the 

meaning the Fourth Amendment. As a result, the Fourth 

Amendment protects both privacy and property.

9.3.1 The Jones Analysis – Trespass

When the Fourth Amendment was adopted the traditional 

definition of a “search” was based on a common-law trespass 

analysis. Ownership or the existence of a possessory right in the 

enumerated property was a necessary requirement in the 

definition of a Fourth Amendment “search” until the 1967 

Supreme Court decision of Katz v. United States,1 as described 

below.

In United States v. Jones officers installed a global positioning 

1 Cases named in this chapter without a case citation are briefed in the 

companion publication, Legal Division Reference Book.

282 Fourth Amendment

 
satellite (GPS) tracking device on the undercarriage of the 

defendant’s vehicle. The GPS tracking device was used to 

monitor the vehicle’s movements for twenty-eight (28) days. 

Neither the installation nor the monitoring of the GPS tracking 

device was conducted pursuant to a warrant or court order. 

The Supreme Court found that the defendant’s vehicle was an 

“effect” – a constitutionally protected area listed in the text of the 

Fourth Amendment. By attaching the GPS tracking device to 

the defendant’s vehicle, the government physically intruded 

(trespassed) on a constitutionally protected area. In addition, 

the trespass was made with the attempt to obtain information 

about the whereabouts of the vehicle during the tracking period.

The Supreme Court applied the traditional common-law trespass 

analysis holding this activity by the government constituted a 

“search.” As applied to GPS tracking devices on vehicles, the 

installation in Jones constituted the physical intrusion and the 

subsequent monitoring provided the requisite intent to gather 

information. The Supreme Court held in Jones that a physical 

intrusion by the government into a “constitutionally protected 

area” for the purpose of gathering information constitutes a 

“search” under the Fourth Amendment.2

The Jones analysis requires both: (1) a trespass or physical 

intrusion by the government upon a constitutionally protected 

area; and (2) an intent to gather information. 

9.3.2 The Katz Analysis - Reasonable Expectation of Privacy

In addition to the traditional common law trespass analysis in 

Jones, a Fourth Amendment “search” also occurs when the 

government intrudes upon an individual’s reasonable 

expectation of privacy (REP).3

The Katz reasonable expectation of privacy test added to, not 

substituted for, the common-law trespass test.4 In Katz v. 

2 United States v. Jones, 546 U.S. ____, 132 S.Ct. 945 (2012).

3 Katz v. United States, 389 U.S. 347 (1967). 4 Common law trespass test.

Fourth Amendment 283

 
United States 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. The defendant did not 

have an ownership or possessory interest in the public phone 

booth, so the traditional common law trespass test, as outlined 

in Jones above, did not apply. However, the Supreme Court 

recognized that the Fourth Amendment also protects privacy, 

not just places. 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. 

However, what a person seeks to preserve as private, even in an 

area accessible to the public, may be constitutionally protected. 

Using a bugging device to eavesdrop on a conversation as in 

Katz 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 unaided ear 

closer to a gap in the booth’s door, there would be no REP in 

those overheard words.

In Katz, the Supreme Court established the standard for 

determining whether REP exists. The test for REP is twopronged:

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 under the Katz REP 

analysis. It is not a “search” to observe conduct that occurs 

openly in public, such as on a public street. Observations made 

from a lawful vantage point that develop probable cause do not 

constitute a “search” under the Fourth Amendment. This is 

sometimes referred to as the Open View Doctrine. This same 

284 Fourth Amendment
principle applies to perceptions made through seeing, 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. 

Likewise, as long as there is no physical trespass by the 

government upon a constitutionally protected area, there is no 

“search” under a Jones analysis. 

9.3.3 Common “Search” Areas

Listed below are some of the more common REP “search” areas 

and situations.

(a) The Body

Obtaining evidence directly from a person’s body 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 reasonable expectation of privacy in a vehicle 

depends on whether the exterior or interior of the vehicle is 

Fourth Amendment 285
being examined. There is no expectation of privacy in the 

exterior of a vehicle. This applies to what officers may see from a 

lawful vantage point. The owner/operator 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

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. Whether or not a 

Fourth Amendment “search” has occurred requires an 

application of both the Jones analysis and the Katz REP 

analysis. 

The effect of a Jones analysis on a home is still being interpreted 

by the lower courts. However, it is sufficient to conclude that a 

government intrusion or trespass into a person’s home with the 

intent to obtain information would constitute a “search” under 

the Fourth Amendment. 

An individual has a high expectation of privacy within the 

286 Fourth Amendment
confines of his or her home. 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 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

Whether or not a container (e.g., purses, briefcases, backpacks, 

Fourth Amendment 287
etc.), is an “effect” within the definition of the Fourth 

Amendment is unclear. The Supreme Court in Jones noted that 

“effects” are one of the areas of constitutional protection. There 

is currently no case law on the Jones analysis with regards to 

containers. 

However, an individual has REP in his or her containers 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 nonprivate information. In such cases, the Fourth Amendment 

allows government agents to “search” to the same extent the 

private person did, without implicating the Fourth Amendment. 

This rule only applies to containers, not other protected areas. 

REP still exists in those portions of the container that were not 

subject to the private search. A “search” occurs within the Katz

REP 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. The Supreme 

Court applied the Jones analysis to curtilage in Florida v. 

288 Fourth Amendment
Jardines which involved taking a drug detection K9 to the front 

porch door of Jardines’ residence to perform a free-air sniff for 

marijuana. The Court held the front porch was curtilage and 

the government trespass was made in the attempt to obtain 

information regarding drug manufacturing. There is not 

customary invitation to enter the curtilage simply to conduct a 

search. However, this does not prohibit an officer from 

conducting a knock-and-talk because approaching the home 

and knocking is no more than any private citizen might do. 

In contrast, “open fields” include any unoccupied or 

undeveloped area outside of the curtilage. 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. An “open field,” 

unlike the curtilage of a home, is not one of those protected 

areas enumerated in the Fourth Amendment. Therefore, the 

physical trespass by the government onto “open fields,” even in 

an attempt to obtain information, would not constitute a 

“search” under the Jones analysis. In addition, 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. 

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 addition, it is 

likely that any physical trespass into structures combined with 

an attempt to find evidence or obtain information may constitute 

a Fourth Amendment “search” under the Jones analysis.

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:

• The proximity of the area claimed to be curtilage to the 

Fourth Amendment 289
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;

• 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:

• Prior notice to the employee, such as through the use of 

computer banners, that limit REP or state that no REP 

exists;

• Common practices and procedures of the employer;

• Openness and accessibility to the area or item in question; 

• Whether the position of the employee requires a special

trust and confidence (e.g., a position that has security 

requirements); 

• Whether the employee has waived any REP in the 

workplace, such as through the collective bargaining 

process.

290 Fourth Amendment
If an employee does have REP in his or her workplace, an 

intrusion into that workplace constitutes a “search” for purposes 

of the Fourth Amendment.

Special rules have been developed for workplace searches that 

take into consideration a government supervisor’s dual 

responsibility of ensuring the public’s work is being done while 

still protecting a government employee’s 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.

It is unknown whether the Jones analysis will affect government 

workplace searches. 

(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 

Fourth Amendment 291
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 

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.

It is reasonable to believe the courts will apply the Jones

analysis to garbage located on a suspect’s property. Therefore, a

physical trespass onto curtilage with the intent to gain 

information or evidence from garbage would most likely be 

considered Fourth Amendment “search.”

(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 

292 Fourth Amendment
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.

9.3.4 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.

The courts have not applied the Jones analysis to a dog sniff of 

property located in a public place. However, the Court held that 

bringing a dog onto a suspect’s front porch (curtilage) for the 

purpose of conducting a sniff to discover evidence or contraband 

constitutes a “search” under the Jones analysis. Florida v. 

Jardines.

(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 not otherwise 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.

Fourth Amendment 293
(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. 

9.4 A Seizure 

Not all interactions between law enforcement officers and 

citizens amount to a “seizure” under the Fourth Amendment. 

Some encounters are purely voluntary. When an officer’s

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.

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.

9.4.1 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.

294 Fourth Amendment
9.4.2 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 the factors 

courts will examine to determine whether a seizure has occurred 

include:

• The time, place, and purpose of the encounter;

• The words used by the officer;

• Language or tone of voice that might indicate 

compliance with the officer’s request is mandatory;

• The threatening presence of several officers;

• Whether weapons were displayed by the officer(s);

• Any physical touching of the citizen;

• Retention of the citizen’s identification or personal 

Fourth Amendment 295
property;

• Whether the citizen was notified of the right to end 

the encounter (though this is not a requirement or 

voluntary contacts).

9.4.3 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:

• A crime is about to be committed;

• A crime is being committed; or

• A crime has been committed.

Some courts have disallowed investigative detentions, however, 

296 Fourth Amendment
for misdemeanors that have already been completed, unless 

some ongoing danger to the public still exists (e.g., recent 

reckless driving). Also, if no other means exists to identify the 

subject that committed a misdemeanor, the detention may still 

be considered reasonable. Detentions to prevent or stop a 

misdemeanor from occurring are, of course, permissible with 

reasonable suspicion. When 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 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) 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, 

an 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 

Fourth Amendment 297
justify reasonable suspicion. Finally, officers may use 

information provided by informants to establish reasonable 

suspicion for an investigative detention.

It is not uncommon for an informant or anonymous source to 

provide the information necessary to establish reasonable 

suspicion. While this is permissible, additional corroboration 

may sometimes be needed before reasonable suspicion can be 

established. The reliability of a tip provided by an informant 

depends on both the “quantity” and “quality” of the information 

provided by the source. A tip from a confidential informant with 

an established, positive track record would usually be 

considered reliable enough to establish reasonable suspicion 

with little or no corroboration. An anonymous tip by itself can 

be insufficient, especially when the source’s truthfulness is 

unknown or the basis of knowledge is not clear (i.e., how does 

the source know that the information is true?). In determining 

whether a tip contains enough verifiable information to establish 

reasonable suspicion, courts look to and rely upon the following 

factors:

• The amount of detail provided by the source of the 

information;

• Whether the source accurately predicted future 

behavior on the part of the suspect;

• Whether and to what extent law enforcement officers 

corroborate the source’s information;

• Whether the information is based upon the source’s 

first-hand observations;

• Whether, by providing the information, the source is 

putting his or her anonymity in jeopardy;

• Whether the information was provided in a face-toface encounter with law enforcement officials; and

• The timeliness of the source’s report.

298 Fourth Amendment
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 the officer heard or saw that led him to reasonably suspect 

that criminal activity was afoot). The officer can utilize a wide 

variety of factors to justify an investigative detention. Even 

apparently innocent or wholly lawful conduct can, in appropriate 

instances, justify suspicion that criminal activity is afoot and 

thereby justify an investigative detention. 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.

Fourth Amendment 299
(d) 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 “bright-line” 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 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) 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:

• The number of officers involved;

• The nature of the crime and whether there is reason 

to believe the suspect is armed;

• The strength of the articulable, objective suspicions;

300 Fourth Amendment
• The need for immediate action; and

• The presence or lack of suspicious behavior or 

movement by the person under observation.

(f) Going From Investigative Detention to Arrest 

An investigative detention may lead to a lawful arrest only if 

probable cause to arrest is developed. 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 occurred, courts will 

consider a variety of factors, including:

• The purpose behind the stop and the nature of the crime;

• Whether the officer diligently sought to carry out the 

purpose behind the detention;

• The amount of force used, and the need for such force;

• The extent to which an individual’s freedom of movement 

was restrained;

• The number of officers involved;

• The duration and intensity of the stop;

• The time and location of the stop; and

• 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 

Fourth Amendment 301
result of a search incident to the unlawful arrest) will be 

inadmissible.

9.4.4 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) the investigatory stop 

must be lawful; and (2) 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 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. 

302 Fourth Amendment
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 

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 frisk. 

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 in Section 9.8 of this chapter.

In order to lawfully seize evidence under the “plain touch” 

Fourth Amendment 303
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.

9.4.5 Detaining Vehicles

The Fourth Amendment applies to seizures of the person, 

including brief investigatory stops such as the stop of a vehicle. 

Stopping an automobile and detaining its occupants constitutes 

a ‘seizure’ within the meaning of the Fourth Amendment, even 

though the purpose of the stop is limited and the resulting 

detention quite brief. 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 reasonable suspicion to believe the vehicle is 

carrying contraband. In Brendlin v. California, the Supreme 

Court held 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 9.7.2(a), 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:

304 Fourth Amendment
• Ordering the driver and passengers out of 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) 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 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 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) 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 requirements for extending the stop 

Fourth Amendment 305
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.

9.4.6 Arrests

The third type of “citizen-police” encounter is an arrest based 

upon probable cause. This concept is discussed more fully in 

Sections 9.9 and 9.10.

9.5 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. 

In December 2014 the DOJ published a document entitled 

“Guidance for Federal Law Enforcement Agencies Regarding the 

Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual 

Orientation or Gender Identity.”5 The 2014 Guidance built upon 

and expanded the framework of the 2003 Guidance, and it 

reaffirmed the Federal governmemnt’s deep commitment to 

5 A complete copy of the 2014 Guidance can be found in the Legal Division 

Reference Book.

306 Fourth Amendment

 
ensure that its law enforcement agencies conduct their activities 

in an unbiased manner. 

The 2014 Guidance applies to Federal law enforcement officers 

performing Federal law enforcement activities, including those 

related to national security and intelligence, and defines not only 

the circumstances in which Federal law enforcement officers 

may take into account a person’s race and ethnicity, as the 2003 

Guidance did, but also when gender, national origin, religion, 

sexual orientation, or gender identity may be taken into account. 

The 2014 Guidance also applies to state and local law 

enforcement officers while participating in Federal law 

enforcement task forces.

9.5.1 The Constitutional Framework

The Constitution protects individuals against the invidious use 

of irrelevant individual characteristics. See Whren v. United

States, 517 U.S. 806, 813 (1996). Such characteristics should 

never be the sole basis for a law enforcement action. The 2014 

Guidance established requirements beyond the Constitutional 

minimum that shall apply to the use of race, ethnicity, gender, 

national origin6, religion, sexual orientation, and gender identity

by Federal law enforcement officers. The 2014 Guidance 

applies to such officers at all times, including when they are 

operating in partnership with non-Federal law enforcement 

agencies.

The following excerpts are taken directly from the 2014 

Guidance, and provide the standard taught by the FLETC Legal 

Division. 

6 As used in this Guidance, “national origin” refers to an individual’s, or his or 

her ancestor’s, country of birth or origin, or an individual’s possession of the 

physical, cultural or linguistic characteristics commonly associated with a

particular country. It does not refer to an individual’s “nationality” (i.e.,

country of citizenship or country of which the person is deemed a national), 

which may be relevant to the administration and enforcement of certain

statutes, regulations, and executive orders.

Fourth Amendment 307

 
9.5.2 Guidance for Federal Officials Engaged in Law 

 Enforcement Activities7

(a) 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, ethnicity, gender, national origin, religion,

sexual orientation, or gender identity to any degree, except that

officers may rely on the listed characteristics in a specific

suspect description. This prohibition applies even where the use

of a listed characteristic might otherwise be lawful.

(b) All Activities Other Than Routine or Spontaneous 

 Law Enforcement Activities

In conducting all activities other than routine or spontaneous

law enforcement activities, Federal law enforcement officers may

consider race, ethnicity, gender, national origin, religion, sexual

orientation, or gender identity only to the extent that there is

trustworthy information, relevant to the locality or time frame,

that links persons possessing a particular listed characteristic 

to an identified criminal incident, scheme, or organization, a 

threat to national or homeland security, a violation of Federal

immigration law, or an authorized intelligence activity. In order

to rely on a listed characteristic, law enforcement officers must

also reasonably believe that the law enforcement, security, or

intelligence activity to be undertaken is merited under the

totality of the circumstances, such as any temporal exigency

and the nature of any potential harm to be averted.This standard 

applies even where the use of a listed characteristic might

otherwise be lawful.8

7 Specific examples concerning the use of the listed characteristics when 

making law enforcement decisions, or in law enforcement activities can be 

found in the 2014 Guidance. See the Legal Division Reference Book.

8 This Guidance does not prohibit the accommodation of religious beliefs and 

practices consistent with the U.S. Constitution and federal law. The

Guidance also does not prohibit officials from considering gender when “the

gender classification is not invidious, but rather realistically reflects the fact

308 Fourth Amendment

 
As noted above, there are circumstances in which law

enforcement officers engaged in activities relating to particular 

identified criminal incidents, schemes, organizations, threats to

national or homeland security, violations of Federal immigration

law, or authorized intelligence activities may consider personal 

identifying characteristics of potential suspects, including race,

ethnicity, gender, national origin, religion, sexual orientation, or 

gender identity. Common sense dictates that when a victim 

describes the assailant as possessing a certain characteristic,

law enforcement officers may properly limit their search for

suspects to persons possessing that characteristic. Similarly, in 

conducting activities directed at a specific criminal organization

or terrorist group whose membership has been identified as 

overwhelmingly possessing a listed characteristic, law

enforcement should not be expected to disregard such facts in 

taking investigative or preventive steps aimed at the 

organization’s activities.

Reliance upon generalized stereotypes is absolutely forbidden. 

In order for law enforcement officers to rely on information about 

a listed characteristic, the following must be true:

• The information must be relevant to the locality or time

frame of the criminal activity, threat to national or 

homeland security, violation of Federal immigration law, 

or authorized intelligence activity;

• The information must be trustworthy; and

• The information concerning identifying listed 

characteristics must be tied to the particular criminal 

incident, a particular criminal scheme, or a particular 

criminal organization, a threat to national or homeland 

security, a violation of Federal immigration law, or an 

authorized intelligence activity. 

The prohibition against the use of generalized stereotypes

that the sexes are not similarly situated.” Rostker v. Goldberg, 453 U.S. 57, 

79 (1981).

Fourth Amendment 309

 
extends to the use of pretexts as an excuse to target minorities. 

Officers 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 characteristic-based efforts, if 

properly supported by reliable, empirical data, are in fact 

race-neutral.

• Relevance to the locality or time frame: Any information 

that law enforcement officers rely upon concerning a listed 

characteristic possessed by persons who may be linked to 

specific criminal activities, a threat to national or 

homeland security, a violation of Federal immigration law, 

or an authorized intelligence activity must be relevant to 

both time and location.

• The information must be trustworthy: Where the 

information relied upon by law enforcement officers 

linking a person possessing a listed characteristic to 

potential criminal activity, a threat to national or 

homeland security, a violation of Federal immigration law, 

or an authorized intelligence activity is unreliable or too 

generalized and unspecific, reliance on that characteristic 

is prohibited. In determining whether information is 

trustworthy, an officer should consider the totality of the 

circumstances, such as the reliability of the source, the 

specificity of the information, and the context in which it 

is being used. 

These standards contemplate the appropriate use of both 

“suspect-specific” and “incident- specific” information. As noted 

above, where a crime has occurred and law enforcement officers 

have eyewitness accounts including the race, ethnicity, gender, 

national origin, religion, sexual orientation, or gender identity of 

the perpetrator, that information may be used. Law enforcement 

officers may also use reliable, locally or temporally relevant 

information linking persons possessing a listed characteristic to 

a particular incident, unlawful scheme, or ongoing criminal 

enterprise, a threat to national or homeland security, a violation 

of Federal immigration law, or an authorized intelligence 

310 Fourth Amendment
activity—even absent a description of any particular individual 

suspect. In certain cases, the circumstances surrounding an 

incident, ongoing criminal activity, threat to national or 

homeland security, or violation of Federal immigration law will 

point strongly to a perpetrator possessing a specific listed 

characteristic, even though law enforcement officers lack an 

eyewitness account.

In addition, law enforcement officers may use a listed 

characteristic in connection with source recruitment, where 

such characteristic bears on the potential source’s placement 

and access to information relevant to an identified criminal 

incident, scheme, or organization, a threat to national or 

homeland security, a violation of Federal immigration law, or an 

authorized intelligence activity.

Finally, when a law enforcement officer relies on a listed 

characteristic in undertaking an action, that officer must have a 

reasonable belief that the action is merited under the totality of 

the circumstances. This standard ensures that, under the 

circumstances, the officer is acting in good faith when he or she 

relies in part on a listed characteristic to take action.

9.5.3 National and Homeland Security and Intelligence 

 Activities

Since the terrorist attacks on September 11, 2001, Federal law 

enforcement agencies have used every legitimate tool to prevent 

future attacks 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)).

The years since September 11 have also demonstrated that 

Federal law enforcement officers can achieve this critical goal 

without compromising our cherished value of equal justice 

Fourth Amendment 311
under the law. Every day, Federal law enforcement officers work 

to keep our Nation safe, and they do so without invidious 

profiling. The standard embodied in this Guidance thus applies 

to Federal law enforcement agencies’ national and homeland 

security operations, which will continue to focus on protecting 

the public while upholding our values.

National security, homeland security, and intelligence activities 

often are national in scope and focused on prevention of attacks 

by both known and unknown actors, not just prosecution. For 

example, terrorist organizations might aim to engage in acts of 

catastrophic violence in any part of the country (indeed, in 

multiple places simultaneously, if possible). These facts do not 

change the applicability of the Guidance, however. In order to 

undertake an action based on a listed characteristic, a law 

enforcement officer must have trustworthy information, relevant 

to the locality or time frame, linking persons possessing that 

characteristic to a threat to national security, homeland 

security, or intelligence activity, and the actions to be taken 

must be reasonable under the totality of the circumstances.

9.6 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.

9.6.1 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 

312 Fourth Amendment
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.

9.6.2 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.

9.6.3 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 

Fourth Amendment 313
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.

9.6.4 Using Confidential Informants to Establish Probable 

 Cause

The use of confidential informants in criminal investigations is 

fairly routine. However, the use of this particular investigative 

tool can raise concerns regarding the informant’s veracity and 

reliability. In Aguilar v. Texas the Supreme Court outlined a 

two-prong test for determining whether information provided by 

a confidential informant establishes probable cause. The two 

prongs of the “Aguilar Test” are: (1) the credibility of the 

informant, and (2) the informant’s basis of knowledge.

(a) Credibility of the Informant

When 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.

314 Fourth Amendment
• 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-to-face 

encounter allows a personal assessment of the informant’s 

demeanor and credibility.

• Consistency Between Independent Informants: Credibility 

increases when two or more separate, unrelated 

informants provide consistent information.

• The Degree of Detail Provided: The greater the detail, the 

more likely the informant has accurate knowledge of the 

information provided.

(b) Basis of Knowledge

In addition to establishing the confidential informant’s 

credibility, 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.

(c) The Effect of Gates on Aguilar

In Illinois v. Gates the Supreme Court rejected the two-part 

Aguilar test (outlined above) as hyper-technical and divorced 

Fourth Amendment 315
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.

9.7 The Exclusionary Rule

9.7.1 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.

316 Fourth Amendment
9.7.2 The Exceptions

(a) No Standing to Object

Fourth Amendment rights are personal and cannot be claimed 

by another. In order to claim the protection of the Fourth 

Amendment, a defendant must demonstrate that he personally 

has an expectation of privacy in the place searched, and that his 

expectation is reasonable. Only defendants whose Fourth 

Amendment rights have been violated may benefit from the 

exclusionary rule’s protections. For example, a car thief would 

have no standing to object to the admission of the tool he used 

to break into the car he stole after officers found it by searching 

the stolen car. Nor would a drug dealer have standing to object 

to the admission of drugs he duped an unsuspecting neighbor 

into storing in the neighbor’s house. Nor would a passenger 

have standing to object to the admission of a stolen wallet he 

crammed down a car seat after the driver was pulled over for a 

speeding violation.

(b) 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.

(c) 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.

Fourth Amendment 317
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 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.

d. 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 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.

318 Fourth Amendment
e. 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.

9.8 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 REPprotected 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.

9.8.1 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 immediately adjacent to th place of arrest, 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. 

9.8.2 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 

Fourth Amendment 319
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

• The nexus between the seized object and the items 

particularized in a search warrant;

• Whether the intrinsic nature or appearance of the seized 

object gives probable cause to associate it with criminal 

activity; and

• Whether probable cause is the direct result of the 

executing officer’s instantaneous sensor perceptions.

9.8.3 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. An 

officer’s personal observations may establish 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, an officer may stand on the public sidewalk and 

see a marijuana plant growing inside someone’s living room. 

Without additional facts, however, the officer may not yet enter 

the residence and seize the plant. The officer has no lawful right 

of access to the living room where the plant is located. If the 

resident were to grant the officer consent to enter, however, or if 

320 Fourth Amendment
the resident saw the officer through the window and began 

destroying the plant, he or she could lawfully enter the house 

and access the evidence. The plain view doctrine is not a tool 

that allows officers to search for evidence, but only to seize it if it 

meets the rule’s criteria.

9.9 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 Procedure.

9.9.1 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.”

9.9.2 Arrest Warrant Upon Indictment or Information

Rule 9 addresses the issuance of federal arrest warrants based 

upon an indictment or information. Subsection (a) of the rule

provides that “the court must issue a warrant - or at the 

government’s request, a summons - for each defendant named 

in an indictment or named in an information if one or more 

affidavits accompanying the information establish probable 

cause to believe that an offense has been committed and that 

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 

Fourth Amendment 321
committed and the defendant committed it.

9.9.3 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.”

9.9.4 Technical Aspects of Executing Arrest Warrants

Rule 4(c) describes the manner in which arrest warrants based 

upon a complaint must be executed.

• 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 

322 Fourth Amendment
timeframe in which an arrest warrant is required to be 

executed.

9.9.5 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.”

9.9.6 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.

9.10 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.

9.10.1 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

Fourth Amendment 323
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 they

have the statutory authority to arrest for that specific crime.

Authority to make arrests comes from three different sources.

(a) 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.

(b) 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.

(c) 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.

9.10.2 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 

324 Fourth Amendment
Communications System (TECS) or National Crime Information 

Center (NCIC). 

(a) Outstanding Federal Arrest Warrant

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.

(b) Outstanding State Arrest Warrant

Unless authorized by statute, federal law enforcement officers 

are not authorized to arrest individuals on outstanding state 

warrants. Very few agencies have such statutory arrest 

authority.9 However, such arrests might be made with state 

peace officer authority, depending on the law of the state in 

which the arrest is made. If faced with this situation, the best 

practice is for the federal law enforcement officer to contact the 

state or local police department listed on warrant to determine if 

that department wants the individual detained. If so, the federal 

law enforcement office may detain the individual 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.

9.10.3 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. 

9 See Title 38 U.S.C. § 902 Enforcement and Arrest Authority of Department 

[of Veterans Affairs] Police Officers for a rare excpetion to the general rule. 

Fourth Amendment 325

 
Wisconsin. For that reason, entering a home to arrest a person 

without a warrant is typically a violation of the Fourth 

Amendment, regardless of whether 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.

(a) 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;

• Information from third parties (e.g., confidential 

326 Fourth Amendment
informants or neighbors) indicating the suspect is present 

in the home.

(b) 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. To enter the third-party’s home to make an 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.

9.10.4 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.

(a) 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 the officer is authorized by statute or 

otherwise to do so. If the person for whom the officer has

probable cause is located inside a residence, he or she must 

have consent or an exigent circumstance to enter the residence 

to make an arrest without a warrant.

(b) 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 his or her presence” 

when the facts and circumstances as observed by the officer 

through his or her senses are sufficient to warrant an officer of 

Fourth Amendment 327
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 an officer’s 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.10

9.11 Title 18 U.S.C. § 3109 

Title 18 U.S.C. § 3109 is commonly referred to as the “knockand-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.

9.11.1 The Statute

Titled “Breaking Doors or Windows for Entry or Exit,” the statute 

provides as follows:

The officer may break open any outer or inner door 

or window of a house, or any part of a house, or 

anything therein, to execute a search warrant, if, 

after notice of his authority and purpose, he is 

10 The exigent circumstance of “hot pursuit,” discussed in section 9.19.1 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.

328 Fourth Amendment

 
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.

9.11.2 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.

9.11.3 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.

9.11.4 Requirements Under the Statute

Under the knock-and-announce statute, three requirements 

must be met before officers may lawfully use force to “break 

open” some part of a house when executing a search or arrest 

warrant.

Fourth Amendment 329
(a) 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.

(b) 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.

(c) 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:

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 

330 Fourth Amendment
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 earing 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.

9.11.5 Exigent Circumstances and § 3109

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-andannounce requirement in certain situations. To lawfully use 

force to enter a residence without complying with the knockand-announce” requirements, officers must have a reasonable 

suspicion, under the particular circumstances, that knocking 

and announcing their presence would be dangerous or futile, or 

Fourth Amendment 331
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 felony 

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-announce rule continues to apply to a later 

forcible entry.

9.11.6 Violations of § 3109 and 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 

332 Fourth Amendment
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.

9.11.7 No-Knock Warrants

In the right circumstances, officers may request a “no-knock” 

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 pre-search 

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 knockand-announce requirement. There should be reasonable 

grounds that an exigency exists or will arise instantly upon 

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. 

An officer 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 

Fourth Amendment 333
knocking and announcing.

9.12 Protective Sweeps

9.12.1 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.

9.12.2 Scope of a Protective Sweep

(a) 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. Officers may use 

the incriminating evidence to obtain a search warrant for the 

premises.

9.12.3 Timing of the Protective 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 

334 Fourth Amendment
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.

9.12.4 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.

(a) Automatic Protective Sweeps

Officers armed with an arrest warrant (or a search warrant for a 

person to be arrested) may enter the premises and search for the 

arrestee in any area that could conceal a person. Once the 

arrestee is located and the arrest is made, “as a precautionary 

matter and without probable cause or reasonable suspicion, 

[officers may] look in closets and other spaces immediately 

adjoining the place of arrest from which an attack could be 

immediately launched.” Buie. Although the limited search is for 

people, any evidence or contraband found in plain view may be 

seized. 

(b) 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 

Fourth Amendment 335
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 suspicion less

extended sweep. 

9.12.5 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. 

9.13 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.

9.13.1 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.

336 Fourth Amendment
9.13.2 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 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

containers. 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 

Fourth Amendment 337
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.

9.13.3 Scope of a Search Incident to Arrest

The permissible scope of a search incident to arrest varies 

depending on the context of the arrest.

(a) 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.

(b) 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 

338 Fourth Amendment
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. 

However, in Riley v. California, the United States Supreme Court 

specifically held that warrants are generally required to search 

cell phones incident to a lawful arrest. The Court applied the 

Chimel factors cited above and found that: (1) once officers have 

seized the phone it cannot be used as a weapon by the arrestee; 

and (2) officers can take reasonable measures to prevent the 

remote wiping of data by placing a cell phone in a Faraday 

container or powering off the phone and removing the battery. 

Although a cell phone cannot be searched incident to arrest, the 

Court also stated that traditional exigent circumstances could 

justify the warrantless search of a cell phone’s data after an 

arrest. 

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:

• The distance between the arrestee and the place to be 

searched;

• Whether the arrestee was handcuffed or otherwise 

restrained;

• Whether the officers were in a position to block the 

arrested person’s access to the area in question;

• The ease with which the arrested person could access the 

area; and

• The number of law enforcement officers present at the 

scene.

The reference point for the area within the arrestee’s immediate 

control is the location of the person at the time of the search, not 

where the person may later be moved. Generally, this should 

Fourth Amendment 339
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.

 

9.13.4 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 

340 Fourth Amendment
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 of arrest. 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. 

Fourth Amendment 341
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. 

9.14 Issuance of Federal Search Warrants

The rules delineating who may issue federal search warrants are 

a mix of statutes and federal case law.

9.14.1 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.

342 Fourth Amendment
9.14.2 Who May Issue a Federal Search Warrant?

Rules 1 and 41 of the Federal Rules of Criminal Procedure 

authorize the following individuals to issue federal search 

warrants:

• United States Magistrate Judges (Rule 41(b));

• 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.

9.14.3 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 

Fourth Amendment 343
property located within the district.”

Outside the District: Pursuant to Rule 41(b)(2), “a magistrate 

judge with authority in the district has 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), law enforcement officers 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.11

Tracking Devices: Pursuant to Federal Rule of Criminal 

Procedure 41(b)(4), “a magistrate judge with authority in the 

district has authority to issue a warrant to install within the 

district a tracking device; the warrant may authorize use of the 

device to track the movement of a person or property located 

within the district, outside the district, or both.”

11 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.

344 Fourth Amendment

 
9.14.4 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.”

9.15 The Components of a Search Warrant Affidavit

The decision to proceed by search warrant is a drastic one, and 

must be carefully circumscribed so as to prevent unauthorized 

invasions of the sanctity of a person’s home and the privacies of 

life. General warrants are prohibited by the Fourth Amendment. 

The problem posed by the general warrant is not that of 

intrusion per se, but of a general, exploratory rummaging in a 

person’s belongings. As noted by the Supreme Court:

The Warrant Clause of the Fourth Amendment 

categorically prohibits the issuance of any warrant 

except one “particularly describing the place to be 

searched and the persons or things to be seized.” 

The manifest purpose of this particularity 

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 

Fourth Amendment 345
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.

9.15.1 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.

(a) Stale Information

In an affidavit for a search warrant, the officer must establish 

probable cause to believe the evidence sought is currently 

located at the place to be searched. (An exception exists for 

anticipatory warrants; see 9.15.2 below.) 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:

346 Fourth Amendment
• 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. (e.g., child 

pornography on a computer or digital storage device).

• 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.

9.15.2 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.

9.15.3 Particularity- The Place to Be Searched

Under the Fourth Amendment, the affidavit must particularly 

describe the place to be searched. In providing this description, 

Fourth Amendment 347
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.

(a) 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.

(b) 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 

348 Fourth Amendment
person can be found, they should include it as well.

(c) 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.

9.15.4 Particularity - 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.”

Warrants for stolen property require a more particular 

description, especially when the items to be seized are of a 

common nature, such as jewelry.

Fourth Amendment 349
9.15.5 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. 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. The officers are only permitted to 

seize the controlled substance and continue searching areas that 

could conceal a 27-inch 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.

9.15.6 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 

350 Fourth Amendment
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.

9.16 Telephonic Search Warrants

A judge may wholly or partially dispense with a written affidavit 

and base a warrant on sworn testimony. Rule 4.1, titled 

“Complaint, Warrant, or Summons by Telephone or Other 

Reliable Electronic Means,” outlines the procedural rules for 

obtaining telephonic search warrants. Subsection (A) of the rule 

provides that:

“A magistrate judge may consider information communicated by 

telephone or other reliable electronic means when reviewing a 

complaint or deciding whether to issue a warrant or summons.”

9.16.1 Purpose of Rule 4.1

Rule 4.1 recognizes that modern technological developments 

(e.g., cell phones, facsimile, and email) have improved access to 

judicial officers. The purpose of the rule is to encourage federal 

law enforcement officers to seek search warrants in situations 

when they might otherwise conduct warrantless searches. 

9.16.2 Telephonic Warrants and Exigent Circumstances

The time necessary to obtain a traditional warrant is relevant to 

determine whether circumstances are exigent. Warrants 

obtained by telephone or other reliable electronic means 

typically take less time. Courts also consider the amount of time 

necessary to obtain a warrant by telephone or other reliable 

Fourth Amendment 351
electronic means 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 or other 

reliable electronic means, the procedures proscribed in Rule 4.1

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.

Absent a finding of bad faith, evidence obtained from a warrant 

issued under Rule 4.1 is not subject to suppression on the 

ground that issuing the warrant telephonically or by other 

reliable electronic means was unreasonable under the 

circumstances. 

9.16.3 Who Can Issue Telephonic Warrants?

Unlike traditional federal search warrants issued pursuant to 

Rule 41, a state court judge may not issue a telephonic warrant. 

Telephonic search warrants must be issued by federal judges.

9.16.4 Procedural Requirements

Rule 4.1(b) sets out a variety of procedural requirements that 

must be met to obtain and execute a warrant by telephone or 

other reliable electronic means. 

(a) Prepare the “Duplicate Original Warrant”

First, the officer must prepare a “proposed duplicate original 

warrant.” The duplicate original warrant must be in writing, 

although there is no requirement that the affidavit be in writing.

352 Fourth Amendment
(b) Read It or Transmit It

Second, the officer must read or otherwise transmit the contents 

of the document verbatim to the judge. The officer may, if the 

option is available, transmit the duplicate original warrant to the 

magistrate judge by e-mail or facsimile.

(c) Preparation of “Original” Warrant

If the officer reads 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 file the 

modified original and 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.

(d) Issuance of Warrant

Upon determining to issue the warrant, the judge must 

immediately sign the original warrant, enter on its face the exact 

time it is issued, and transmit the warrant by reliable electronic 

means to the officer or direct the officer to sign the judge’s name

and enter the date and time on the duplicate original warrant.

(e) Time of Execution Must Be Entered on the 

 “Duplicate Original Warrant” 

The officer must enter the exact date and time the search 

warrant was executed.

Fourth Amendment 353
9.16.5 Recording and Certification Requirements

In addition to the requirements listed above, recording and 

certification requirements must be met.

(a) Oath or Affirmation

Upon learning that an officer is requesting a warrant by 

telephone or other reliable electronic means, the judge must 

place under oath, and may examine, the officer and any person

on whose testimony the application is based. The oath is 

administered at the inception of the call. 

(b) Creating a Record of the Testimony and Exhibits

If the officer does no more than attest to the contents of a 

written affidavit submitted by reliable electronic means, the 

judge must acknowledge the attestation in writing on the 

affidavit. If the judge considers additional testimony or exhibits, 

the judge must have the testimony recorded verbatim by an 

electronic recording device, by a court reporter, or in writing. 

(c) Certification of the Recording

The 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, along with 

any exhibits, 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.

9.17 Executing Federal 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.

354 Fourth Amendment
9.17.1 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. § 3105 

determines who qualifies as an authorized officer.

A search warrant may in all cases be served by any 

of the officers mentioned in its direction or by an 

officer authorized by law to serve such warrant, but 

by no other person, except in aid of the officer on his 

requiring it, he being present and acting in its 

execution.

It is generally left to the discretion of the executing officers to 

determine the details of how best to proceed with the 

performance of a search authorized by warrant. 

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.

Fourth Amendment 355
9.17.2 When May a Federal Search Warrant Be Executed?

A federal search warrant must command the officer to execute 

the warrant during the daytime, unless the judge for good cause 

expressly authorizes execution at another time. The term 

“daytime” means the hours between 6:00 a.m. and 10:00 p.m. 

according to local time. To “execute” the warrant means to make 

initial entry. After the initial entry, 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. § 879 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 

356 Fourth Amendment
authorized by the warrant within a specified time no longer than 

10 calendar days” from the date the warrant is issued. 

Installation must be performed in the daytime, “unless the judge 

for good cause expressly authorizes installation at another time.” 

Rule 41(e)(2)(C)(i)-(ii).

9.17.3 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.

9.17.4 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.

9.17.5 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 

Fourth Amendment 357
acquired from those telephone calls is not subject to suppression 

on grounds of constitutionally protected privacy concerns.

9.17.6 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.

9.17.7 Detaining Occupants - 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. 

For the Summers Doctrine to apply, the occupant must be in or 

358 Fourth Amendment
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 9.17.3 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. 

Fourth Amendment 359
9.17.8 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.

9.17.9 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.

360 Fourth Amendment
(a) 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.

(b) 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.

(c) 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 

Fourth Amendment 361
to justify a search of the individual’s 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.

9.17.10 Damage or Destruction of Property

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.

9.17.11 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.”

362 Fourth Amendment
9.17.12 Providing a Copy of the Warrant and Inventory 

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.

9.17.13 Warrant Return

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).

9.18 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.

Fourth Amendment 363
9.18.1 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.

9.18.2 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 mobile even though the 

364 Fourth Amendment
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.

9.18.3 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.

9.18.4 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.

Fourth Amendment 365
9.18.5 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 place 

366 Fourth Amendment
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. 

9.19 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 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; 

Fourth Amendment 367
(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.

9.19.1 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:

1. Probable Cause to Arrest. Probable cause must exist to 

arrest the suspect.

2. 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.

3. Immediate or Continuous Pursuit. There must be an 

“immediate or continuous” pursuit of the suspect. This 

does not require that the officers actually observe the 

suspect commit the crime, nor does it require the officers 

to actually see the suspect flee from the scene of the 

crime.

368 Fourth Amendment
4. 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. 

5. 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.

9.19.2 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. 

The federal circuit courts of appeal differ in what they require for 

a lawful warrantless search to prevent destruction of evidence. 

The majority rule, (followed in the Sixth, Eighth, and D.C. 

Circuit Courts of Appeal), holds that a warrantless search 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 

Fourth Amendment 369
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.

9.19.3 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 

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.12 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 

12 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.

370 Fourth Amendment

 
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 rejections of a “‘murder scene 

exception’ to the Warrant Clause of the Fourth Amendment.”

9.20 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 

Fourth Amendment 371
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?”).

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.

9.20.1 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;

• 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 

372 Fourth Amendment
container;

• Whether the individual was in custody at the time the 

consent was given (although custody alone is not enough 

in itself to demonstrate a coerced consent to search);

• 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 or her Miranda 

rights or told that he or she 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);

• 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 

Fourth Amendment 373
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.

9.20.2 Actual or Apparent Authority

The second requirement is that the consent must be given by an 

individual with either actual or apparent authority over the place 

to be searched. Actual authority comes “from the individual 

whose property is searched.” Illinois v. Rodriguez. A third-party 

“who possesses common authority over or other sufficient 

relationship to the ... effects sought to be inspected” has actual 

authority to consent to a search. United States v. Matlock. 

Common authority is not determined solely by who owns the 

property. Rather, it is based on mutual use of the property by 

persons generally having joint access or control. Any of the joint 

users has the authority to consent, and the others have 

assumed the risk that one of them might permit the shared area 

or item to be searched.

The consent of one party who has authority over the place to be 

searched, however, is not valid if another party with authority is 

physically present and expressly refuses to give consent for the 

search. Georgia v. Randolph. 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. The removal of a potential objector must be 

objectively reasonable, such as an occupant who is absent due 

to a lawful detention or arrest. Fernandez v. California. On the 

other hand, officers may not isolate or remove the potentially 

non-consenting party just to avoid a possible objection to the 

374 Fourth Amendment
search. 

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.

9.20.3 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 

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 

Fourth Amendment 375
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.

9.20.4 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.

(a) 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. 

(b) Parent - Child Situations

Consent in parent-child situations can be divided into cases in 

which the child is a minor, and those where the child is eighteen 

years or older.

In cases where the child is a minor, a parent can almost always 

consent to a search of the child’s belongings or living area, such 

as the bedroom.

Circuit courts have addressed the issue of whether a minor child 

may consent to the search of a parent’s home or property. 

Assuming that the child has authority over the area to be 

searched, these circuits hold that the fact that the child is a 

minor does not, per se, bar a finding of actual authority to grant 

third-party consent to search. A child’s minority is simply a 

factor in determining the voluntariness of the consent. Consent 

376 Fourth Amendment
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.

(c) 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.

9.21 Inventory Searches

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 

Fourth Amendment 377
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.

9.21.1 Justifications for Inventory Searches

The Supreme Court has recognized three justifications for 

allowing the inventory of lawfully impounded property without 

first obtaining a warrant. First, law enforcement must protect 

the owner’s property while it remains in 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.

9.21.2 Requirements for Inventory Searches

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.

(a) 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.

378 Fourth Amendment
(b) 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.

9.21.3 Scope of Inventory Searches

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 

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 

Fourth Amendment 379
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.

9.21.4 Location of Inventory Searches

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.

9.22 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 

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.

380 Fourth Amendment
9.22.1 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.

9.22.2 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.

9.22.3 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.

9.22.4 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 

officers set up a checkpoint to discover drugs. The Supreme 

Court determined because the primary purpose of the 

checkpoint was to advance “the general interest in crime 

Fourth Amendment 381
control,” the checkpoint was unlawful. Individualized suspicion 

is required when police employ a checkpoint primarily for the 

ordinary enterprise of investigating crimes.

9.22.5 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.

Special rules apply when the administrative inspection is 

conducted on the premises of what the law terms a closelyregulated 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 

382 Fourth Amendment
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.

9.22.6 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. 

(a) Searches at Security Checkpoints

Security screening searches at facilities such as airports, 

military bases, courthouses, and other sensitive government 

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 

Fourth Amendment 383
a regulatory scheme. 

(b) 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. 

(c) 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 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 

384 Fourth Amendment
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.

9.22.7 Border Searches – In General

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.

(a) 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.

Fourth Amendment 385
9.22.8 Routine Border Search

(a) 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.

(b) 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.

9.22.9 Non-routine Border Search

(a) Scope

The scope of a non-routine border search is also determined at 

least in part, by the traveler’s own expectations. Some 

inspections are a customary part of crossing an international 

border. Others are very intrusive and therefore non-routine. A

full strip search, an X-ray examination of the body, a demand to 

remove an artificial leg and a body cavity search are examples of 

non-routine border searches. Certain detailed searches of 

vehicles and other belongings may also be non-routine. Detailed 

disassembly and partial destruction of personal effects and 

drilling holes in car bodies are non-routine border searches. 

Finally, lengthy detentions of persons – those lasting hours 

386 Fourth Amendment
rather than minutes -- often are considered non-routine seizures 

of the individual.

(b) 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.

9.22.10 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 about the border. But mere entry of a 

person or object into the United States does not mean that that 

authority to conduct a border search persists no matter where 

and when that person or object is discovered by law 

enforcement.

(a) 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

Fourth Amendment 387
borders.

(b) 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:

(c) 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

• The officer stops and/or searches at the first practical 

detention point after the nexus has formed.

388 Fourth Amendment
9.22.11 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.

9.22.12 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.

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 

Fourth Amendment 389
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

• 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.

9.23 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.

9.23.1 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 

390 Fourth Amendment
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.

9.23.2 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 

Fourth Amendment 391
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. 

9.23.3 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. 

392 Fourth Amendment
Chapter Ten

Government Workplace Searches

10.1 Government Workplace Searches - Introduction .394

10.2 Defining the “Workplace” ....................................394

10.3 Is It a “Search” Under the Fourth Amendment? ..395

10.3.1 Does REP Exist? ..................................................396

(a) Prior Notice to the Employee ...............................397

(b) Common Practices and Procedures .....................398

(c) Openness and Accessibility .................................399

(d) The Position of the Employee ..............................401

(e) Waiver of Rights / Consent .................................401

10.4 If REP Does Exist, Is an Intrusion Reasonable?....402

10.4.1 Searches for Work-Related Purposes ....................403

(a) Non-Investigatory Purpose ..................................403

(b) Work-Related Misconduct Investigations..............404

(c) Reasonable intrusions.........................................404

(d) Justified at the Inception ....................................405

(e) Permissible In Scope ...........................................405

(f) Plain View Seizures..............................................405

10.4.2 Searches for Evidence of Criminal Violations........406

10.4.3 Dual-Purpose Searches........................................407

Government Workplace Searches 393
10.1 Government Workplace Searches - 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.

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. Ortega1, 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 two-part 

analysis to simplify the process. First, determine whether the 

employee has REP in the area or item to be searched. Second, 

if REP does exist, 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.”

10.2 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 

1 This case is briefed in the companion book, Legal Division Reference Book.

394 Government Workplace Searches

 
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 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 work-related materials. 

... These items were part of the ‘workplace,’ not part of 

Gossmeyer’s personal domain.”

 

10.3 Is It a “Search” Under the Fourth Amendment?

There are two tests applied to determine whether a Fourth 

Amendment “search” has occurred. They are derived from two 

Supreme Court cases, Katz v. United States and United States 

v. Jones.2 

The Jones, Supreme Court held that a physical intrusion by the 

government into a constitutionally protected area for the 

purpose of gathering information constitutes a “search” under 

the Fourth Amendment. This is sometimes described as the 

2 These cases are briefed in the companion book, Legal Division Reference 

Book.

Government Workplace Searches 395

 
common law trespass test. Unfortunately, there is a lack of

case law on how this test might be applied to government 

workplaces. Therefore, an analysis of government workplace 

searches requires a more detailed understanding of the other 

test for a Fourth Amendment “search.”

The more common test applied to government workplace 

searches is the reasonable expectation of privacy test from Katz 

v. United States. In Katz, the Supreme Court held that a 

Fourth Amendment “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.

10.3.1 Does REP Exist?

As with all Fourth Amendment analysis, the first step is to 

determine whether the government employee has REP in that 

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 States. 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 

396 Government Workplace Searches
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-by-case 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 desk or

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:

(a) Prior Notice to the Employee (Legitimate Regulation) 

Prior notice, such as signs, personnel policies, and computer 

banners, advising government employees that their employer 

has retained rights to access or inspection, can eliminate REP 

in the workplace. Conversely, the absence of such notice is a 

factor supporting REP. In the Fourth Circuit Court of Appeals 

case of United States v. Simons, Simons worked for the Foreign 

Bureau of Information Services (FBIS), a division of the Central 

Intelligence Agency. FBIS had an Internet usage policy that (1) 

specifically prohibited accessing unlawful material, (2) 

prohibited use of the Internet for anything other than official 

business, and (3) noted that FBIS would “periodically audit, 

inspect, and/or monitor the user’s Internet access as deemed 

appropriate.” When a keyword search indicated that Simons 

had been visiting numerous illicit web sites from his 

government computer, multiple searches of his hard drive were 

conducted from a remote location, 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 

Government Workplace Searches 397
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 

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 any time, day or 

night” can defeat a claim of REP in a government vehicle. 

(b) 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 

398 Government Workplace Searches
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.

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. 

(c) 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 

Government Workplace Searches 399
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 

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 

400 Government Workplace Searches
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.”

(d) 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 police officers which the 

Fourth Amendment would not otherwise tolerate. 

(e) 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 

Government Workplace Searches 401
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).

10.4 If REP Does Exist, Is an Intrusion Reasonable? 

Even though there is a strong preference that searches be 

performed pursuant to warrants, courts have recognized that in 

certain special situations the requirement to obtain a warrant is 

impractical. Such is the case with public employers who find 

themselves in a somewhat unique position. On the one hand is 

the obligation to follow the mandates of the Fourth Amendment; 

on the other is the responsibility for ensuring the efficient and 

proper operation of the department or agency. In cases 

involving searches conducted by a government supervisor, 

courts balance the invasion of the employees’ REP against the 

government’s need for supervision, control, and the efficient 

operation of the workplace. As noted by the Supreme Court in 

O’Connor:

Employers and supervisors are focused primarily 

on the need to complete the government agency’s 

work in a prompt and efficient manner. An 

employer may have need for correspondence, or a 

file or report available only in an employee’s office 

while the employee is away from the office. Or ... 

employers may need to safeguard or identify state 

property or records in an office in connection with a 

pending investigation into suspected employee 

misfeasance. In our view, requiring an employer to 

obtain a warrant whenever the employer wished to 

402 Government Workplace Searches
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 non-investigatory 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 workrelated, 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.

10.4.1 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. 

(a) Non-Investigatory Purpose

A warrantless search of a government employee’s workplace 

may be conducted for a work-related, non-investigatory 

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 

Government Workplace Searches 403
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 work-related, noninvestigatory reasons.

(b) 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 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.

(c) 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 

404 Government Workplace Searches
by the Supreme Court in Terry v. Ohio.3

(d) 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.

(e) Permissible In Scope

A search is “permissible in scope” when the measures used are 

reasonably related to the objectives of the search and not 

excessively intrusive in light of the nature of the misconduct. 

This means that the search is limited to only those areas where 

the item sought is reasonably expected to be located. For 

example, it is reasonable to look in a desk drawer for a 

highlighter. It is not “permissible in scope” to boot up the 

computer when looking for a highlighter.

(f) 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 

3 This case is briefed in the companion book, Legal Division Reference Book.

Government Workplace Searches 405

 
view seizure so long as the search meets the criteria discussed 

above.

10.4.2 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 

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.

406 Government Workplace Searches
10.4.3 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 

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.

Government Workplace Searches 407
NOTES

408 Government Workplace Searches
Chapter Eleven

Legal Issues of Identification Procedures

11.1 Fifth Amendment Due Process Clause....................409

11.2 Admissibility of Identification Evidence ................409

11.3 Types of Identification Procedures.........................411

11.3.1 Line-Ups..............................................................411

11.3.2 Photo Displays / Arrays .......................................412

11.3.3 Show-Ups ............................................................413

__________________________________________________________

11.1 Fifth Amendment Due Process Clause

Eyewitness identification evidence is an important component 

in the investigation and prosecution of criminal offenses. 

Generally, there are three types of procedures used by law 

enforcement officers to determine if an eyewitness or victim can 

identify the perpetrator of a crime: line-ups, photo arrays and 

show-ups. These identification procedures are governed by the 

Due Process Clause of the Fifth Amendment. A court will 

determine whether the pretrial identification procedure used by 

the law enforcement officers was so “unnecessarily suggestive 

and conducive to irreparable mistaken identification” that the 

defendant was denied due process of law. 1

11.2 Admissibility of Identification Evidence

When the defendant objects to identification testimony to be 

given by a witness who has identified him prior to trial, the 

court will use a two-step analysis to determine whether the 

prior identification or the in-court identification of the 

defendant is admissible. 

First, the court decides whether the pre-trial identification 

procedure unduly and unnecessarily suggested to the witness

that the defendant was the perpetrator. If the procedure was

not suggestive, the identification evidence will be admissible. 

1 Stovall v. Denno, 388 U.S. 293, 302 (1967).

Identification Procedures 409

 
Like all other evidence, the jury will then determine if the 

identification evidence is credible. However, if the court finds 

the identification procedure was both unduly suggestive and 

unnecessary, the court must determine, whether, under the 

totality of the circumstances, the identification procedure was 

independently reliable. In other words, even though the 

identification procedure might be suggestive, as long as the 

identification procedure did not create a substantial likelihood 

of misidentification, the identification evidence will be 

admissible.2 

In Neil v Biggers,3 a sexual assault victim identified Biggers as 

her assailant at a police station show-up seven months after the 

assault. The show-up consisted of two police officers walking 

Biggers past the victim. At the victim’s request, the officers to 

direct Biggers to say, “Shut up or I’ll kill you.” The victim 

identified Biggers as her assailant and testified at trial that she 

had “No doubt” about her identification. Even though the 

identification procedure may have been unduly suggestive, the 

Supreme Court “found no substantial likelihood of 

misidentification;” therefore, the victim’s identification of 

Biggers was admissible. The court noted the victim spend up to 

thirty minutes with her assailant, the victim was with her 

assailant under adequate light in her house and under a full 

moon outdoors, and victim faced her assailant directly and 

intimately during this time. In addition, the witness’ 

description of her assailant to the police, which included his 

approximate age, height, weight, complexion, skin texture, build 

and voice was thorough. 

Consequently, a court will consider the following factors when 

evaluating a witness’ ability to make an accurate independent 

identification.4

• The opportunity for the witness to view the criminal at the 

time of the crime;

2 Manson v. Brathwaite, 432 U.S. 98 109-114 (1977). 3 Neil v. Biggers, 409 U.S. 188 (1972). 4 Id. At 199-200.

410 Identification Procedures

 
• The witness’ degree of attention;

• The accuracy of the witness’ prior description of the 

criminal;

• The level of certainty demonstrated by the witness at the 

confrontation; and

• The length of time between the crime and the 

confrontation.

11.3 Types of Identification Procedures

11.3.1 Line-Ups

When utilizing a line-up, the eyewitness views a number of 

actual potential suspects in an attempt to identify the 

perpetrator of a crime. A suspect cannot invoke his Fifth 

Amendment privilege against self-incrimination to refuse to

participate, as line-ups are non-testimonial in nature. However, 

the Due Process Clause guarantees the defendant the 

procedures used in conducting a line-up will be fair. A line-up 

can be impermissibly or unduly suggestive to the degree it 

creates a substantial likelihood of misidentification if the 

defendant matches a witness’ description and the other line-up 

participants obviously do not.5 In addition, line-ups in which 

suspects are the only participants wearing distinctive clothing 

or otherwise matching important elements of the description 

provided by the witness have been severely criticized as 

substantially increasing the dangers of misidentification.6

In Foster v. California7, a robbery suspect, who was six feet in 

height, was placed in a line-up with two other men who were six 

to seven inches shorter. In addition, Foster was the only one 

who was wearing a jacket similar to one worn by the robber. 

After viewing the line-up, the witness could not positively 

identify Foster as the robber. Immediately afterward, the 

5 Raheem v. Kelly, 257 F.3d 132 (2nd Cir. 2001). 6 Israel v Odom, 521 F2d 1370 (7th Cir. 1975). 7 Foster v. California, 394 U.S. 440 (1969).

Identification Procedures 411

 
witness asked to speak to Foster. Police officers then brought 

Foster into an office by himself, and allowed the witness to 

speak to Foster. Even after this one on one confrontation, the 

witness could not identify Foster as the robber. Finally, 

approximately ten days later, police officers arranged for the 

witness to view a second line-up. Foster was the only person in 

the second line-up who had appeared in the first line-up. The 

witness identified Foster as the robber. The witness later 

testified to his identification of Foster in the police line-ups and 

identified Foster in court as the robber. 

Citing Stovall v Denno, the court held the suggestive elements 

in the identification procedures made it all be inevitable the 

witness would identify Foster as the robber, whether he was or 

not. As a result, the court concluded these procedures so 

undermined the reliability of the witness’ identification as to 

violate due process.8

11.3.2 Photo Displays / Arrays

To determine whether a photo display is so unnecessarily 

suggestive so as to give rise to a substantial likelihood of 

misidentification in violation of 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.9

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.10 The lower the number of 

photographs used in a photo array, the closer the array must be 

scrutinized for suggestive irregularities. Generally, using six 

8 Id. at 443.

9 United States v. Wiseman, 172 F.3d 1196 (10th Cir 1999). 

10 United States v. Sanchez, 24 F.3d 1259 (10th Cir 1994). 

412 Identification Procedures

 
photographs in an array has been upheld by the courts.

Improper presentation of photographs may sometimes cause 

witnesses to mistakenly identify a suspect.11 Examples of 

presentations that may increase the risk of misidentification 

include:

• Repetitive showing of suspect’s photo;

• Emphasizing a photo;

• Displaying photos of several individuals, but where the 

suspect’s image keeps repeating or is in some way 

emphasized;

• Indicating to a witness that police have other evidence 

that one of the persons pictured committed the crime;

• Telling a witness to assume the suspect is in the array;

• Using a suspect’s photo that is a different color than the 

others in the array;

• The attention-drawing or suggestive details of the 

photographs themselves;

• Where the suspect’s photograph does not look like the 

men depicted in the other photographs shown to the 

witness.

11.3.3 Show-Ups

A show-up occurs when the witness, in a direct one-on-one 

showing of an actual person, attempts to identify the 

perpetrator of a crime. The practice of showing a suspect 

directly to a witness for the purpose of identification, and not as 

11 United States v. Barber, 132 Fed. App’x 233 (11th Cir. 2005); Gregory-Bey 

v. Hanks, 332 F.3d 1036 (7th Cir. 2003); United States v. Cozier, 259 F.3d 

503 (6th Cir. 2001); U.S. v. Smith, 156 F.3d 1046 (10th Cir. 1998). 

Identification Procedures 413

 
part of a line-up, has been widely condemned. Nevertheless, 

show-ups can be proper and not impermissibly 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.

414 Identification Procedures
Chapter Twelve

Legal Issues in Interrogations and Interviews

12.1 Introduction..........................................................416

12.2 Voluntary Statements............................................416

12.2.1 The Test for Voluntariness ...................................416

12.3 Right Against Self-Incrimination - Applied.............420

12.3.1 Who is a “Person”.................................................421

12.3.2 The Potential for Prosecution ...............................421

12.3.3 Testimonial Evidence ...........................................425

12.3.4 Self-Incrimination................................................426

12.4 Miranda and the Definition of “Compelled”............427

12.4.1 Coercion Defined Generally..................................427

12.4.2 Coercion and Miranda..........................................428

12.4.3 Miranda Warnings – When Required ....................429

12.5 Miranda Waivers ....................................................432

12.5.1 Valid Miranda Waivers .........................................432

12.5.2 Affirmative and Implied Waivers of Miranda .........434

12.5.3 Form of the Waiver of Miranda Rights ..................434

12.5.4 Staleness .............................................................434

12.5.5 Correcting Miranda Violations..............................435

12.5.6 Public Safety Exception to Miranda......................436

12.6 Invocation of Miranda Rights.................................437

12.6.1 Invocations ..........................................................437

12.6.2 Not Offense Specific .............................................439

12.6.3 Ambiguous Invocations........................................439

12.7 Miranda Violations ................................................440

12.7.1 Where It Occurs...................................................440

12.7.2 Suppression of Statements ..................................440

12.7.3 Fruits ..................................................................440

12.7.4 Coerced Statements .............................................441

12.8 The Sixth Amendment Right to Counsel ................441

12.8.1 Purpose ...............................................................441

12.8.2 Attachment..........................................................442

12.8.3 Critical Stages .....................................................442

12.8.4 Offense Specific ...................................................444

12.8.5 Waiver and Invocation..........................................445

12.8.6 Violations ............................................................446

12.8.7 The McDade Amendment.....................................446

Interrogations and Interviews 415
12.1 Introduction

Law enforcement officers oftentimes obtain exceptionally 

valuable information from criminal suspects. These statements 

can provide crucial evidence in bringing a case to a successful 

prosecution. To use these statements at trial, the government 

must abide by the constitutional requirements relating to 

statements and interrogations found in the self-incrimination 

clause and the due process clause of the Fifth Amendment and 

the right to counsel clause in the Sixth Amendment.

Courts will evaluate any statements of a suspect to determine if 

they are worthy of consideration by the trial court. Several 

factors can come into play to induce a court to determine that 

statements are not to be admitted into evidence. For instance, 

a court could determine that the statements were not 

voluntarily made (in violation of the Fifth Amendment’s due 

process clause), or were compelled by the government (in 

violation of the Fifth Amendment’s self-incrimination clause), or 

were obtained without legal counsel’s presence (in violation of 

the Sixth Amendment’s assistance of counsel clause). This 

chapter is designed to instruct the law enforcement officer on 

how to avoid these legal obstacles while conducting effective 

interviews of suspects and others.

12.2 Voluntary Statements 

12.2.1 The Test for Voluntariness

In order for any statement to be admissible against a suspect in 

a criminal trial, the statement must have been made 

voluntarily. This is of primary importance to any reviewing 

court. Courts determine whether a statement is voluntary by 

deciding whether a statement was the product of free choice or 

whether the individual’s will was overborne by government 

conduct. 

The courts look at the totality of the facts and circumstances 

surrounding the interrogation when determining whether a 

suspect’s will was overborne. This includes information about 

416 Interrogations and Interviews
the suspect, the circumstances under which the statement was 

made, and the officer’s conduct. There is a danger that a 

suspect’s will was overborne when the circumstances are such 

that an innocent person might confess in the same situation. 

Areas that courts consider include:

(a) Suspect Characteristics

The courts will consider the following factors when assessing 

the voluntariness of a suspect’s statement: the suspect’s age, 

level of education and/or intelligence, known psychological 

problems, the suspect’s current physical condition, the 

suspect’s level of drug and/or alcohol impairment, and the 

suspect’s familiarity with the criminal justice system. For 

example, a suspect who has considerable experience with the 

criminal justice system is less likely to be intimidated when 

confronted with government questioning than someone who has 

little to no experience in that type of situation.

(b) Circumstances Surrounding the Statement

When determining whether the suspect’s will was overborne, 

the courts will also consider the circumstances under which the 

statement was made. The court will consider where the 

statement was taken, for how long the suspect was questioned, 

whether breaks were taken, and whether the suspect was in 

custody or free to leave. 

A suspect’s statement can be voluntarily provided even if made 

while a suspect is at the police station or under arrest. For 

example, a suspect may choose to go to the police station to 

make a voluntary statement instead of staying at home because 

he does not want others to see him talking to the government. 

Even when a suspect is under arrest and being detained at a 

police station, his statement may still be voluntary if other 

precautions are taken, such as the advisement of Miranda

warnings. (Miranda warnings are discussed later in this 

chapter).

Interrogations and Interviews 417
(c) Officer’s Conduct

An officer’s conduct also influences the court’s decision 

regarding whether a statement is voluntary. Certain 

interrogation techniques are considered to be coercive, and, if 

used to obtain a statement, will usually result in the court 

finding that statement to be involuntary. Not surprisingly, 

violence or threats of violence are considered coercive. Long 

interrogations without reasonable breaks can be coercive. 

Threats of unlawful action, such as threats to falsely arrest 

family members, are coercive. Similarly, threats to take away 

the suspect’s children if the suspect does not confess are 

coercive.

Even seemingly positive government conduct, such as promises 

of immunity or leniency, may be coercive. For example, if an 

individual is falsely accused of committing a crime, she faces a 

potential jail sentence and loss of her job if convicted. If an 

officer tells her that if she cooperates and confesses he will 

make sure that she does not go to jail, the officer’s promise can 

be coercive. In this situation, a reasonable, innocent person 

might falsely confess because doing so eliminates the possibility 

of jail time and minimizes the likelihood that she will lose her 

job.

While promising a suspect immunity or leniency may be 

coercive, promising a suspect that her cooperation will be 

brought to the attention of the prosecutor is acceptable. 

Officers should not state that prosecutors or judges will, in fact, 

be more lenient, but can tell a suspect that her cooperation will 

be shared with those that can influence her fate.

Other acceptable, non-coercive interrogation techniques include 

confronting a suspect with evidence of his guilt, encouraging 

him to tell the truth through emotional appeals, and informing 

him of the potential jail time he faces if convicted. Even trickery 

and deception may be used during an interrogation as long as a 

suspect’s will is not overborne by such tactics. For example, 

telling the suspect his prints are on the murder weapon, even 

when they are not, is usually acceptable. Similarly, telling a 

418 Interrogations and Interviews
suspect that his accomplice has confessed, when in fact he has 

not, is also permissible, and, by itself, will not make the 

statement involuntary.

It is important to remember that these deceptive interrogation 

techniques are considered as part of the totality of the 

circumstances along with the suspect’s characteristics and the 

circumstances of the interrogation. For example, if a suspect’s 

mental capacity is below normal levels, these otherwise 

acceptable deceptive techniques may be considered coercive as 

the suspect may be more easily influenced by the government

than someone whose mental capacity is at normal levels. 

Furthermore, permissible interrogation techniques may become 

coercive when too many are used together on the same suspect. 

Consider the case of Spano v. New York, 360 U.S. 315 (1959). 

In this case, a foreign-born man, age 25, with no previous 

criminal history or experience with official interrogation was 

suspected of murder. He had only six months of high school 

education and a history of emotional instability. The suspect 

was questioned by officials overnight for nearly eight straight 

hours before he confessed. He repeatedly refused to answer 

questions. During the interrogation, the officers brought in a 

“childhood friend” of the suspect who had become a law 

enforcement officer. This friend/officer told the suspect that the 

situation had gotten him in trouble and that his job was in 

jeopardy. He also played up the terrible effect this would have 

on his family.

The Supreme Court held that the confession was involuntary 

based on the totality of the circumstances. It had been obtained 

in violation of the suspect’s rights because his will was 

overborne by official pressure, fatigue, and sympathy created 

through deception.

In situations where coercive influences are present, there are 

steps that an officer can take to minimize those influences. For 

example, if a suspect is highly impaired, the officer might 

consider delaying the interview. If the suspect is a juvenile or 

has a detectable mental impairment, officers should explain the 

Interrogations and Interviews 419
Miranda warnings using simple language and should avoid 

leading the suspect who may be more easily influenced than 

others. When an interrogation becomes lengthy but must 

continue, such as when the officers are questioning a suspect 

about the location of a missing and endangered child, the 

officers should take significant breaks and provide food and 

drinks.

12.3 Right Against Self-Incrimination - Applied

The Fifth Amendment1 self-incrimination clause states that “No 

person...shall be compelled in any criminal case to be a witness

against himself...” This clause can be broken into five separate 

elements:

• No person;

• Compelled;

• Criminal Case;

• To be a Witness;

• Against Himself.

All five of these conditions must exist to trigger the protections 

of the self-incrimination clause. 

If any one of these conditions does not exist, then the suspect 

cannot assert a valid Fifth Amendment right against selfincrimination, and her statements will be admissible against 

her in court so long as there are no other violations that result 

in their suppression. If these five conditions are met, then a 

person may assert the Fifth Amendment privilege against selfincrimination in any proceeding, whether civil, criminal, 

administrative, investigatory or adjudicatory. As the element 

“Compelled” is the most comprehensive and, perhaps, difficult 

1 The Fifth Amendment, as all other elements of the Constitution, only 

applies to governmental actions.

420 Interrogations and Interviews

 
to apply, it will be explored lastly.

12.3.1 Who is a “Person”

Unlike the Fourth Amendment, the Fifth Amendment selfincrimination clause only protects natural individuals (“No 

person...shall be compelled in any criminal case to be a witness 

against himself...”), not corporations. Consequently, a 

corporation cannot refuse to answer questions or provide 

documents on the grounds that it has a Fifth Amendment 

privilege against self-incrimination. Braswell v. United States, 

487 U.S. 99 (1988). 

 

12.3.2 The Potential for Prosecution

The potential for criminal prosecution (“No person...shall be 

compelled in any criminal case to be a witness against 

himself...”) is a condition that must be met for the right against 

self-incrimination to be triggered. 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 testimony is removed, even 

compelled testimony, then the Fifth Amendment selfincrimination clause does not apply. 

The potential for prosecution means exactly that; it must be 

possible for the suspect to be prosecuted. Prosecution does not 

have to be imminent or even likely. It is possible that a person 

could be prosecuted for a crime even if she is not a suspect at 

the time the officers are interviewing her. If the witness could 

make statements that could incriminate her, and there are no 

bars to prosecuting her, then she has a Fifth Amendment right 

against self-incrimination. 

There are a number of situations where there is no possibility 

for the government to use the statements in a prosecution. If 

the statements cannot be used in a criminal prosecution, the 

self-incrimination clause is not applicable.

Interrogations and Interviews 421
(a) The Statute of Limitations

If the statute of limitations has run for a given crime, it means 

that too much time has passed since the commission of the 

crime or since the government became aware of the crime, and 

the government can no longer prosecute that crime. If a 

suspect can no longer be prosecuted for a given crime, then 

there is no potential for prosecution and she no longer has a 

right against self-incrimination with regard to that crime.

(b) Double Jeopardy

The Double Jeopardy clause of the Fifth Amendment prohibits 

the same government (state or federal) from prosecuting an 

individual more than once for the same offense. This means 

that once a person has been tried and acquitted or has been 

tried and convicted (and the period for filing an appeal has 

passed), that person cannot be prosecuted again for that same 

crime by the same government.

For example, if a man is tried for murder by the state of Georgia 

and a jury finds him not guilty, then the state of Georgia cannot 

try him again for that same murder. Provided that the federal 

government cannot try him for the same murder, then the

defendant no longer has a Fifth Amendment right against selfincrimination. If his statements were needed to help convict a 

co-criminal, for example, law enforcement officers would be able 

to compel his testimony using a subpoena. Note that this is a 

simplified discussion of double jeopardy; a more involved 

discussion of the double jeopardy clause can be found in the 

Constitutional Law chapter of this book.

(c) Immunity

When a witness is granted immunity, he receives a form of 

protection from the government. The granting of immunity 

allows the government to compel the witness to testify about 

matters that would otherwise be protected by the Fifth 

Amendment. Typically, only attorneys for the government have 

the authority to offer immunity. Law enforcement officers are 

422 Interrogations and Interviews
rarely permitted to offer immunity on behalf of the government. 

Immunity can exist is several forms.

1. Use Immunity

If a witness is granted use immunity, the government cannot 

use the obtained statements, or any evidence discovered based 

on those statements, against him in a criminal case. For this 

reason, “use immunity” is also often called “use and fruits 

immunity.” The government cannot use the “fruits” discovered 

based on the suspects statement either. Importantly, the 

government can still prosecute the suspect for the very crime 

for which he was given immunity. In order to do so, however, 

the government must obtain its evidence against him from an 

independent source.

2. Transactional Immunity

If a witness is granted transactional immunity, it precludes the 

government from prosecuted the witness for the offense for 

which he is given immunity. This is true no matter where the 

government obtains its evidence. Transactional immunity offers 

the witness considerably more protection than use immunity, 

but is rarely granted.

3. Act of Production Immunity

“Act of Production Immunity” is a form of use immunity. Many 

documents – even those that are incriminating – are not 

protected by the privilege against self-incrimination. However, 

while a document may not be privileged, the act of producing a 

document may be. When a person turns over a document to 

investigators, it reasonably appears that she knows the 

incriminating document exists, is controlled by her, and is 

authentic. It also shows that she believes that the 

incriminating document is the one that is being requested. 

Consequently, the act of turning over the documents is 

equivalent to a gesture or statement by the person who turns 

them over that can be both “testimonial” and “incriminating.” 

So, when the act of producing documents has these 

Interrogations and Interviews 423
implications, the privilege applies and a person may refuse to 

turn over a document unless “act of production immunity” is 

granted. In that instance, the incriminating document may be 

used against the person in court, but not the fact that she 

turned it over.

4. Kalkines Warnings

Kalkines warnings are used when the government wishes to 

obtain voluntary statements from a government employee about 

criminal conduct. If the government suspects one of its 

employees of misconduct that is also criminal, it will be difficult 

for the government to investigate that misconduct because the 

employee has a Fifth Amendment right against selfincrimination and can refuse to make statements about the 

misconduct on the grounds that those statements may 

incriminate her. If the government were to threaten to fire the 

employee if she did not cooperate with the investigation, it could 

violate her Fifth Amendment rights because her statements 

could also be used against her in a criminal trial. The 

government employee cannot be lawfully fired for exercising her 

Fifth Amendment right. Garrity v. New Jersey.

Kalkines warnings provide a form of use immunity. The 

government can require the government employee to answer 

questions specifically, directly, and narrowly related to the 

performance of her official duties if the employer adequately 

informs the employee: (1) that she can be fired for not 

answering; and (2) that her answers and their fruits cannot be 

used against her in a criminal case. Kalkines v. United States. 

The warnings remove the potential for the statements’ use in a 

prosecution and thus eliminate the Fifth Amendment privilege.

5. Perjury

Note that immunity does not protect a witness from being 

charged with perjury. When a witness is granted immunity, 

that witness cannot commit perjury in the course of her 

testimony. If the witness commits perjury, she can be 

prosecuted for it.

424 Interrogations and Interviews
6. Civil and Foreign Proceedings

The Fifth Amendment right against self-incrimination does not 

protect a suspect if her statement cannot be used against her in 

a criminal trial, even if it can be used against her in a civil 

proceeding such as a deportation or removal proceeding. 

However, if a person could demonstrate that any testimony she 

might give in a deportation investigation could be used in a 

domestic criminal proceeding, she would be entitled to invoke 

the privilege. Similarly, the privilege typically cannot be invoked 

simply because the witness faces potential foreign prosecution. 

12.3.3 Testimonial Evidence

The self-incrimination clause (“No person...shall be compelled in 

any criminal case to be a witness against himself...”) protects 

persons from providing testimonial evidence. Testimonial 

evidence is words or gestures that communicate a suspect’s 

thoughts or reasoning. For example, if a suspect is asked, 

“Where are your narcotics,” and he replies, “In my backpack,” 

the witness has provided testimonial evidence. It 

communicates his thoughts on where the narcotics are located. 

Similarly, if the suspect is asked, “Where are your narcotics,” he 

then points at his backpack, that would also be considered 

testimonial. In that instance, his gesture communicates his 

thoughts. The same would be true if the suspect responded by 

writing an affidavit in which he stated that the narcotics were in 

his backpack. In all three examples, the suspect is using words 

(spoken or written) or gestures to communicate his thoughts.

Non-testimonial evidence is not protected by the Fifth 

Amendment right against self-incrimination. Non-testimonial 

evidence includes real or physical evidence including 

fingerprints, voice samples and hand-writing samples. Even 

though a suspect’s words are required for a voice or 

handwriting sample, the words used are not communicating his 

thoughts. They are used to compare either the sound of his 

voice or the style of his handwriting respectively. With voice 

and handwriting samples, also called exemplars, the content of 

the words is unimportant as it is already known; it is the audio 

Interrogations and Interviews 425
or physical characteristics of the voice or handwriting that 

forms the value of the evidence. 

Consider a situation where a man is suspected of robbing a 

bank while wearing a mask by passing a handwritten note to 

the teller that reads: “Give me all of the money or I will shoot 

you.” The purpose of a handwriting sample is not to know what 

the suspect is thinking or even what he is believed to have 

written, that is already known from the note provided to the 

officers by the teller witness. The purpose of the handwriting 

sample is to compare the characteristics of the suspect’s 

handwriting to those of the handwriting in the note. The 

sample does not convey information about the suspect’s 

thoughts; it is only used for identification purposes. 

Consequently, it is not testimonial.

Requiring a suspect to stand in a line-up is another example of 

non-testimonial evidence. The evidence sought by that 

investigative technique is the suspect’s physical appearance, 

not her thoughts.

12.3.4 Self-Incrimination

If the answer to a question would not incriminate the speaker, 

then the privilege against self-incrimination does not apply. 

The Fifth Amendment privilege against self-incrimination is 

personal (“No person...shall be compelled in any criminal case 

to be a witness against himself...”). One person cannot assert a 

privilege against self-incrimination in order to protect someone 

else.

A mere witness to a crime who has no criminal liability can be 

compelled by the government to make statements even if those 

statements might incriminate someone else. Similarly, there is 

no 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 attaches to the person, not necessarily to

information that may incriminate him. Therefore, the 

accountant cannot assert a Fifth Amendment privilege to refuse 

426 Interrogations and Interviews
production of client documents that might incriminate his 

client. 

When a witness is needed to appear at trial, Grand Jury, or 

other proceeding, he may be issued a subpoena. 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.

12.4 Miranda and the Definition of “Compelled”

12.4.1 Coercion Defined Generally

Whereas several components of the self-incrimination clause 

(“No person...shall be compelled in any criminal case to be a 

witness against himself...”) are easily defined, the word 

“compelled” is more complex. Importantly, the Supreme Court 

has stated that “coercive government activity” must be present 

in order to find that a confession is involuntary. Without some 

coercion by the government, there is no constitutional issue.

Similarly, a mental illness that overbears the suspect’s will such 

that he is not exercising his free will when he makes statements 

to the government does not violate the Fifth Amendment. This 

was the case in Colorado v. Connelly, 479 U.S. 157 (1986), 

when a suspect who told law enforcement officers that he had 

murdered a little girl and then took them to her body was later 

found to have been suffering an episode of mental illness at the 

time he confessed to the government. A psychological 

evaluation determined that the suspect was coerced by his 

mental illness and the imaginary voices that he was hearing, 

and was not able to exercise his free will at the time that he 

confessed. Nonetheless, the Court ruled that his confession 

was admissible because it was not the product of government 

coercion, stating: “The sole concern of the Fifth Amendment... is 

government coercion (citation omitted, emphasis added).”

Interrogations and Interviews 427
12.4.2 Coercion and Miranda

The Miranda decision is based on the premise that the 

government can overcome a person’s will (through compulsion) 

by more means than the use or threatened use of violence. The 

Miranda warnings are an additional tool that is used to ensure 

that suspect statements are voluntary when the suspect is 

interrogated in a government-dominated atmosphere. In 

Miranda v. Arizona the Supreme Court ruled that statements 

from the custodial interrogation of a suspect cannot be used at 

trial unless law enforcement officers advise him of specific 

rights and obtain a 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 interrogation, the suspect must be advised of the 

following:

• He has the right to remain silent;

• That any statement he makes 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.

Sometimes, in addition to the above, officers will advise a 

suspect that he has the right to stop questioning at any time. 

While this is correct, it is not required by the Miranda decision. 

Also, the officers are not required to tell a suspect what the 

topics of the interrogation will be.

The Supreme Court’s overarching concern was that police 

custodial interrogation is inherently coercive and might lead to 

involuntary statements. In a custodial interrogation, the 

officers have the capacity to dominate the scene to such an 

extent that the risk of intimidation is higher than in other 

contexts.

428 Interrogations and Interviews
12.4.3 Miranda Warnings – When Required

Law enforcement officers are required to advise a suspect of the 

Miranda warnings when:

• A known law enforcement officer;

• has a suspect in custody; and

• conducts an interrogation.

The combination of these three things creates the governmentdominated atmosphere that concerned the Supreme Court. If 

any one of these factors is absent, Miranda warnings are not 

required.

(a) Known Law Enforcement Officer

Miranda warnings are only required when the interrogating 

officer is known by the suspect to be a law enforcement officer. 

This is true whether the officer is in uniform or not. Questions 

by undercover officers do not require Miranda warnings. For 

example, an undercover officer posing as an inmate is not 

required to give Miranda warnings to an incarcerated suspect 

before asking questions that could elicit an incriminating 

answer. Without the presence of a known law enforcement

officer, there is little risk of the coercive “government-dominated 

atmosphere” that concerned the Supreme Court.

(b) Custody

A suspect is considered to be in custody for purposes of 

Miranda when he is under arrest or detained to the degree 

associated with a formal arrest. Imagine that law enforcement 

officers enter a suspect’s home at 4:00 a.m. and begin 

questioning him while he is still in bed. The suspect might 

reasonably believe that he is being arrested. Consequently, 

even though no formal arrest is made, the suspect will likely be 

found to be in custody, which would prompt the need for 

Miranda warnings.

Interrogations and Interviews 429
Note that custody for purposes of Miranda differs from a Fourth 

Amendment seizure. A Fourth Amendment seizure occurs 

whenever a reasonable person would not feel free to leave. 

Miranda custody occurs only when the detention is comparable 

to that of an arrest. A person who is temporarily detained 

during a Terry stop, for example, is seized pursuant to the 

Fourth Amendment, but is not in custody for purposes of 

Miranda. This is the reason that law enforcement officers can 

typically question motorists during a traffic stops without 

reading them Miranda rights. A reasonable person detained 

during a traffic stop knows that she will be free to go once the 

officer returns her license and registration. If, however, a 

situation would appear arrest-like to a reasonable person, it is 

likely that a reviewing court will consider the person in custody 

for Miranda purposes.

In situations that verge on being custodial, courts are less likely 

to require Miranda procedures if the suspect was informed that 

he is not under arrest, is free to leave at any time, and there 

was no physical restraint that would cause a reasonable person 

to perceive that he was under arrest. An officer’s unexpressed 

or unarticulated intent to arrest by itself does not create 

Miranda custody. The relevant inquiry is whether a reasonable 

person in the suspect’s position would have felt as though he 

was under arrest.

1. Juveniles

If the government wishes to question a juvenile about a crime 

then it 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 questioned about a break-in by 

officers 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.

430 Interrogations and Interviews
2. Search Warrants

Like individuals temporarily detained during a Terry stop, 

courts have held that individuals detained temporarily during 

the execution of a search warrant and individuals who 

voluntarily participate in questioning at a police station, are not 

usually in custody for Miranda purposes. If, however, officers 

were to closely guard and/or handcuff a person during the 

execution of a search warrant, that level of restraint might 

approximate a formal arrest, requiring Miranda warnings prior 

to questioning. 

3. Prisoners

Individuals who are serving prison sentences pose a unique 

circumstance. They are not necessarily in “custody” for 

Miranda purposes because prison custody has become their 

norm. Some type of additional restraint must be imposed on an 

inmate to transform questioning into a “custodial interrogation.” 

For example, if an inmate is removed from the general 

population and placed in an interrogation room to be 

questioned by investigators, he has been taken into custody for 

purposes of Miranda. Once he has been released back to the 

general population, he is no longer in custody.

(c) Interrogation

Interrogation involves making statements or asking investigative 

types of questions that could elicit an incriminating response 

from a suspect. Consequently, asking for consent is not 

considered to be interrogation because such a request seeks 

permission, not incriminating statements. Interrogation 

includes not only actual questions, but also statements that are 

the “functional equivalent of questioning.” The “functional 

equivalent of questioning” is defined as words or actions by law 

enforcement that an officer should know are likely to elicit an 

incriminating response from the suspect. 

A well-known example of the functional equivalent of 

questioning is the “Christian burial speech” from the Supreme 

Interrogations and Interviews 431
Court case of Nix v. Williams. In that case, a law enforcement 

officer instructed an arrested suspect not to say anything then 

engaged in a lengthy and emotionally charged monologue about 

the whereabouts of the body of a missing child, prompting the 

suspect to disclose the location of the body. Despite the fact 

that the detective did not expressly question the suspect, the 

Court held that the monologue was the “functional equivalent of 

questioning” as the detective should have known that it was 

likely to elicit an incriminating response from the suspect.

Spontaneous or volunteered statements are not considered the 

product of “interrogation” for Miranda purposes. For example, 

if an arrested suspect blurts out, “I stabbed her” while being 

transported to the police station and with no prompting by the 

officer, his statement is not the product of interrogation. 

Absent interrogation, Miranda warnings are not required.

Also, “routine booking questions” are not interrogation as they 

are not designed to result in an incriminating statement. This 

includes questioning to secure biographical data necessary to 

complete booking or pretrial services. Such questions may 

relate to physical appearance (e.g., actual hair color), personal 

history, and place of residence.

12.5 Miranda Waivers

Law enforcement officers’ ability to interrogate those in custody 

remains a critical feature of the standard criminal investigation. 

This technique may still be deployed, provided that the officer is 

in compliance with the Miranda decision. The officer must 

provide Miranda warnings to the suspect and attempt to secure 

a valid waiver of those protections.

12.5.1 Valid Miranda Waivers

After Miranda warnings are given, an individual may waive his 

rights and agree to answer questions or make a statement. 

There are two distinct requirements for a valid waiver. It must 

be (1) voluntary, and (2) knowing and intelligent. If an 

individual’s waiver is voluntary, knowing and intelligent, then 

432 Interrogations and Interviews
his statement may be used against him in a criminal case. The 

government must prove a valid waiver by a preponderance of 

the evidence.

(a) Voluntary

For a waiver to be valid, it must be voluntary. A voluntary 

waiver is one that is the product of free and deliberate choice 

without any intimidation, coercion, or deception by the 

government. 

(b) Knowing and Intelligent

The waiver must also be knowing and intelligent. A knowing 

and intelligent waiver is one made with a full awareness of both 

the rights being waived and the consequences of waiving them. 

For the waiver to be considered knowing and intelligent, a 

suspect should be given the complete Miranda warnings. It is 

not sufficient to give incomplete warnings to a suspect even 

when the suspect insists that he know his rights.

When deciding if a waiver is knowing and intelligent, the courts 

will consider the suspect’s education, understanding, age, 

familiarity with the criminal justice system, physical and mental 

condition, drug or alcohol impairment and language barriers.

In determining whether a suspect has understood his Miranda

rights, courts will consider whether he received a written copy; 

whether he read the warnings or any portion of them out loud 

(showing both that he can read and that he understands 

English); whether he was given time to read the warnings to 

himself; whether they were read aloud to him; and any other 

statements that were made at the time that the warnings were 

given.

Trickery and deception should never be used when advising a 

suspect of the Miranda warnings or when obtaining a Miranda

waiver. If a suspect is threatened, tricked, or pushed into a 

waiver, the waiver will not be voluntary, intelligent, and 

knowing. Reasonable deception can still be employed, however, 

Interrogations and Interviews 433
after a valid waiver, as a tactic for obtaining statements.

12.5.2 Affirmative and Implied Waivers of Miranda

A valid Miranda waiver can be express or implied. An express 

waiver occurs when the suspect agrees to waive his rights by 

saying “Yes,” signing a waiver form, or nodding his head.

Officers do not have to obtain an express waiver prior to 

questioning, provided that the officers get an implied waiver 

during the course of the interrogation. An implied waiver 

occurs when a suspect initially remains silent during 

interrogation by law enforcement officers but eventually makes 

an un-coerced statement. With an implied waiver, the 

government must still prove the suspect understood the rights 

that he waived, and that his statements were made voluntarily. 

As long as the suspect received and understood the Miranda

warnings, his un-coerced statement is an implied waiver of his 

rights.

12.5.3 Form of the Waiver of Miranda Rights

Waivers can be made orally, in writing or by gesture (e.g. 

nodding). If a suspect waives the Miranda rights orally, but 

refuses to sign the waiver form, it is still a valid waiver. 

Similarly, if a suspect agrees to give only an oral statement, but 

not a written statement, his waiver is still valid. A suspect can

even waive his protections to certain questions, but retain them 

for others.

12.5.4 Staleness

Once a suspect has been advised of his Miranda rights and 

indicated that he has understood them, there is no need to readvise him of those rights. The passage of time alone does not 

invalidate a Miranda warning. Some factors courts will 

consider, however, in determining whether a suspect should be 

re-advised of his Miranda rights include: 

434 Interrogations and Interviews
• The amount of time between the last Miranda warnings 

and the suspect’s statement;

• Interruptions in the continuity of the interrogation;

• 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;

• Whether the same officer who gave the warnings also 

conducted the interrogation resulting in the suspect’s 

statement;

• Whether the statement from a later interrogation differed 

significantly from other statements which had been made 

directly after Miranda warnings.

A concern based on the above factors that the rights advisement 

may be stale can be addressed by re-advising the suspect of his 

right and seeking a new valid waiver.

12.5.5 Correcting Miranda Violations

(a) Intentional Violations

The Supreme Court has held that when officers intentionally 

question a suspect without Miranda warnings as a tactic to gain 

a confession, then read the suspect Miranda warnings, and 

obtain a second confession, both statements will be 

inadmissible. Missouri v. Seibert.

(b) Unintentional Violations

The Supreme Court has also held it is possible to correct an 

unintentional Miranda violation so as to obtain a statement that 

will be admissible in a criminal case. If an officer mistakenly 

fails to advise a suspect of her Miranda rights when required to 

do so, any statements that she makes while in custody and in 

Interrogations and Interviews 435
response to government interrogation will be inadmissible. 

However, provided that the initial statements were otherwise 

voluntary, the government may obtain a second statement that 

will be admissible if they first advise her of her Miranda rights 

and obtain a valid waiver. The following tend to show that a 

Miranda violation was unintentional and to “cleanse” the 

second statement:

• Advising the suspect that the initial statement cannot be 

used against her;

• Having a new officer conduct the second interrogation;

• Changing locations; and

• Waiting for some time to pass before taking the second 

statement.

12.5.6 Public Safety Exception to Miranda

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 is true even if the question is likely to elicit an 

incriminating response.

For example, if an officer pursues, apprehends, and arrests a 

robbery suspect who is believed to have a gun in a grocery 

store, but finds only an empty holster, the officer can ask the 

suspect where the gun is without advising him of the Miranda

warnings. If the suspect tells the officer where the gun is 

located, and the officer secures the gun, then the threat posed 

by the gun to public safety is gone. The officer must then read 

the suspect his Miranda rights prior to asking any additional 

questions about the gun. New York v. Quarles.

The “public safety” exception has been extended to cover 

questions necessary to secure the safety of the public, an 

officer, or the safety of the suspect. A pre-Miranda question, 

“Do you have any guns or sharp objects on you?” is permissible 

436 Interrogations and Interviews
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.

12.6 Invocation of Miranda Rights 

12.6.1 Invocations

There are two separate rights under Miranda that a suspect can 

invoke when subjected to custodial interrogation. A suspect 

can invoke the right to remain silent by affirming that he does 

not want to communicate with the government, or a suspect 

can invoke the right to counsel by expressing that he wants an 

attorney. 

If a suspect invokes either right, questioning must stop unless 

an exception applies. However, Miranda does not require the

government to inform a suspect that an attorney is trying to 

contact him, nor does it require the government to allow him 

access to an attorney while they are seeking a waiver.

A suspect cannot successfully invoke his Miranda rights before 

he faces custodial interrogation. Unless the interrogation is 

imminent or occurring, an invocation is premature. Consider a 

situation where an officer arrests a suspect and places him in a 

police car to transport him. The officer says nothing, but the 

suspect states that he does not want to speak to the officer and 

that he wants a lawyer. The suspect’s attempted invocation will 

not prevent the officers from lawfully advising him of his 

Miranda rights and attempting to get a valid waiver. 

When a suspect properly invokes his Miranda rights, the 

procedure to follow differs in some respects depending on the 

right invoked. If the suspect invokes both rights, the 

government must follow the procedure regarding the right to 

counsel.

Interrogations and Interviews 437
(a) Right to Silence

If a suspect asserts the right to silence, interrogation must 

immediately stop, but officers may later attempt to re-approach 

the suspect after a reasonable “cooling off” period. The 

Supreme Court found that two hours is a reasonable cooling off 

period. Michigan v. Mosley. If officers re-approach a suspect 

who has previously invoked his right to silence, the officers 

must re-advise the suspect of his Miranda warnings and get a 

valid waiver.

A suspect can re-initiate contact with the government whenever 

he chooses. If a suspect reinitiates contact with the government

about the case, then officers must re-advise him of his Miranda

rights and seek a valid waiver. For example, if after asserting 

his right to silence, a suspect later asks an officer, “[w]hat is 

going to happen to me now?” he is reinitiating contact about the 

case. If, however, a suspect re-initiates contact with an officer 

about non-case related topics, such as his cell conditions or the 

quality of the food at the jail, he is not reinitiating contact about 

the case, and the officer must follow the normal procedure 

following the invocation.

(b) Right to Counsel

When a suspect invokes his right to counsel, interrogation must 

immediately stop and he cannot be subjected to further 

custodial interrogation unless he re-initiates the contact about 

the case, or his counsel is actually present. There is no cooling 

off period for an invocation of the right to counsel. The 

government may not try to approach and question the suspect 

again without his attorney being present. 

The government may not re-approach a suspect who has 

invoked his Miranda right to counsel for as long as he remains 

in custody. If he is released from custody, the government may 

re-approach him because Miranda no longer applies as he is no 

longer in a government-dominated atmosphere. However, an 

invocation of the right to counsel will attach to the suspect for a 

period of 14 days. If he is taken back into custody within 14 

438 Interrogations and Interviews
days, then the government must honor his prior invocation, and 

they cannot attempt to get a waiver and question him. If he is 

taken back into custody after 14 days, officers may attempt to 

seek a waiver and question him without violating his Miranda

rights. Law enforcement officers are responsible for 

determining whether a suspect who is in custody previously 

invoked his Miranda right to counsel within the past 14 days. 

See Maryland v. Shatzer, 559 U.S. 98 (2010).

12.6.2 Not Offense Specific

When a suspect invokes his Miranda right to counsel or silence, 

interrogation by all government officials about all crimes must 

cease. If officers are initially questioning a suspect about a 

robbery when he invokes his protections, they must not only 

stop questioning him about the robbery, but they cannot 

question him about any other crimes. The Fifth Amendment

right against self-incrimination, which Miranda protects, 

applies beyond the crime for which the suspect is being held. 

This means that the suspect’s invocation of the right to counsel 

or silence applies to any and all crimes and to questions by any 

known law enforcement officers. Prior to interrogating any 

suspect in custody, an officer must determine whether any 

other officers have attempted to question the suspect and, if so, 

whether the suspect invoked his rights.

12.6.3 Ambiguous Invocations

A valid invocation of a Miranda right must be clear and 

unambiguous. If a suspect makes a statement concerning his 

right to counsel that is unclear or ambiguous, officers are not 

required to stop or avoid questioning. Likewise, officers are not 

required to clarify whether a suspect is invoking his Miranda

rights. For example, if a suspect says, “maybe I should talk to a 

lawyer,” his invocation is ambiguous and not an actual request 

for an attorney, so the government may continue the 

interrogation.

Interrogations and Interviews 439
12.7 Miranda Violations

12.7.1 Where It Occurs

Unlike the Fourth Amendment which is violated when the 

government conducts an unreasonable search or seizure, 

Miranda and the Fifth Amendment right against selfincrimination are not violated when the government fails to 

advise a suspect of the Miranda warnings before obtaining a 

statement. A violation occurs only if the unwarned statements 

are used in a criminal trial. This is because the Fifth 

Amendment self-incrimination clause, which Miranda is 

designed to protect, is a prohibition against compelling a 

suspect to testify against himself in a criminal trial. It does not 

protect suspects from making otherwise voluntary statements. 

The Fifth Amendment protects suspects from having those 

statements used against them in a criminal prosecution. 

12.7.2 Suppression of Statements

The Supreme Court has held that the self-incrimination clause 

has its own built in exclusionary rule. By its own words, it 

protects suspects from the use of their involuntary statements 

against them in a criminal case. When Miranda warnings are 

required but not given, the unwarned statements will be 

excluded from use in a criminal prosecution. 

12.7.3 Fruits

Unlike with Fourth Amendment violations, the fruits of an 

unwarned statement will not be excluded from use in a criminal 

trial. The self-incrimination clause protects people against the 

use of compelled testimonial evidence, or statements, at trial. It 

does not protect against the use of real or physical evidence at 

trial. Consider an example where an officer arrests a suspect 

and does not advise him of his Miranda rights, but asks him 

where in his house he keeps an illegally possessed gun. If the 

suspect shows the officer where the gun is and admits to 

owning it, then the suspects’ statements will be inadmissible in 

the criminal case against him, but the fruit of his statements, 

440 Interrogations and Interviews
the gun, will be admissible.

12.7.4 Coerced Statements

Coerced statements are treated differently from statements that 

are otherwise voluntary but obtained without required Miranda

warnings. If a statement is involuntary or coerced, not only will 

the statement be excluded, but any fruits of that statement will 

also be excluded.

For example, if an officer threatens to arrest a suspect’s family 

member unless she tells him where evidence of a crime is 

hidden, then both the suspect’s coerced statement and the 

evidence of the crime, the fruits of her coerced statement, will 

be suppressed. If an officer arrests a suspect, fails to give her 

the Miranda warnings, and simply asks her to show him where 

evidence of a crime is hidden, then her voluntary but unwarned 

statement will be excluded but the physical evidence of the 

crime will still be admissible.

12.8 The Sixth Amendment Right to Counsel 

(Not all programs are responsible for the material in this 

section. Students should check their course syllabus.)

12.8.1 Purpose

The Sixth Amendment right to counsel provides defendants with 

the assistance of an attorney once the government has 

commenced a criminal prosecution. It serves to equalize any 

imbalance stemming from the full weight of the government’s 

resources brought to bear against a single individual.

The Sixth Amendment right to counsel is different from the 

right to counsel established in the Miranda decision. The 

Miranda right to counsel is designed to protect suspects in a 

government-dominated atmosphere from making incriminating 

statements that could be used against them at trial. The 

protections of the Sixth Amendment right to counsel are 

different (in both a narrower and broader sense). For example, 

Interrogations and Interviews 441
the Sixth Amendment right to counsel protects defendants even 

when they are not in government custody. At the same time, 

the Sixth Amendment right to counsel only applies to the crime 

or crimes for which the defendant is being prosecuted, whereas 

the Miranda right to counsel protects a suspect against being 

compelled to make statements about any crime.

The Sixth Amendment right to counsel is a right enjoyed at 

trial. That is, it begins (or attaches) when the government has 

formally accused a person of committing a crime, thereby 

initiating the adversarial process. Once the government 

formally accuses a suspect, it marks the transition from an 

investigation to a prosecution, and the suspect, now the 

defendant, is given the assistance of an attorney at all “critical 

stages” of the prosecution.

12.8.2 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 events:

• Indictment returned by a federal grand jury;

• Information filed by a federal prosecutor; or

• Initial Appearance of the defendant after arrest.

Whenever the earliest of these events occurs in a case, the 

adversarial process has begun, and the defendant’s right to 

have counsel present at all critical stages has then attached. 

12.8.3 Critical Stages

Once the Sixth Amendment right to counsel has attached, the 

defendant has a right to have counsel present during every 

“critical stage” of the criminal proceedings. 

442 Interrogations and Interviews
(a) Court Proceedings

Critical stages include all court proceedings. Court proceedings 

include, bail hearings, suppression hearings, as well as the trial 

itself.

(b) Government Questioning

Any interrogation is considered a critical stage. All attempts by 

law enforcement to elicit information from the defendant about 

the charged crime are to be included in this critical stage.

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. Unlike 

Miranda, which is concerned with a government-dominated 

atmosphere, the Sixth Amendment right to counsel seeks to 

address the potential imbalance between a charged defendant 

and the government. Once the criminal charge has been 

brought, the defendant is entitled to the assistance of counsel 

for all government questioning. 

However, undercover officers who only listen to the defendant, 

without eliciting any information, do not violate the Sixth 

Amendment right to counsel. The undercover officer must be 

careful not to discuss the charged crime with the accused. 

Even if the officer does not ask any questions, the conversation 

might be seen as an attempt to elicit information.

(c) Line-ups

Live identification procedures require a defendant to interact 

with the government in person. Consequently, the courts 

consider line-ups to be a critical stage in the proceedings at 

which he is entitled to have counsel present.

The defendant may waive his right to have counsel present at a 

line-up, and the validity of any waiver will be determined by the 

totality of the circumstances under which it was made. 

Interrogations and Interviews 443
Violations of this right can result in the exclusion of any 

identification and may even prevent later in-court identification 

by the witness.

Identification through an array that includes a photo of the 

defendant does not involve a confrontation, and therefore is not 

considered a critical stage of the adversarial proceedings. The 

defendant has no Sixth Amendment right to the presence of 

counsel when photo arrays are used.

12.8.4 Offense Specific

As previously noted, the Sixth Amendment right to counsel is 

offense specific while the Miranda rights are not. Miranda

rights are applicable for any crime, regardless of the offense for 

which the suspect is in custody. By contrast, the Sixth 

Amendment right to counsel applies only when adversarial 

proceedings have been initiated and applies only to the charged 

offense(s).

Even when officers are barred from questioning a defendant 

about a charged crime, they may question him about other, 

uncharged offenses, since the right has not attached 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 released on bond when he was arrested again, 

this time for the murders. The Court held that the Sixth 

Amendment right to counsel did not bar the government from 

interrogating the defendant about the murders, despite the fact 

that they arose from the same incident. Thus, 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.

444 Interrogations and Interviews
12.8.5 Waiver and Invocation

(a) Waiver of Sixth Amendment Right to Counsel

Once the Sixth Amendment right to counsel has attached, the 

government must advise the defendant of his right to have 

counsel, and then obtain a voluntary, knowing, and intelligent 

waiver prior to questioning. This is true whether or not the 

defendant is actually represented by counsel at the time the 

government seeks to question him. 

Although Sixth Amendment rights differ from the Fifth 

Amendment Miranda rights, the same Miranda warnings are 

used to obtain a waiver of the Sixth Amendment rights. Officers

are not required to tell the defendant that he has been charged, 

or for what offense with which he has been charged. 

NOTE: A suspect’s waiver of the Miranda right to counsel in a 

Miranda situation (police custodial interrogation) is not 

necessarily also a waiver of his Sixth Amendment right to 

counsel. If a suspect in custody who has not yet been charged 

(that is, no Sixth Amendment right has attached) waives his 

Miranda right to counsel, the government may still need to seek 

a Sixth Amendment waiver prior to future interrogation after 

the suspect has been formally charged.

(b) Invocation of Sixth Amendment Right to Counsel

If a defendant chooses to invoke his Sixth Amendment right to 

counsel, the government may not question him about the crime 

charged without an attorney present. If the defendant is in 

custody, the Miranda rules will also apply.

As noted in the portion of this chapter on 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 (but see Maryland v. 

Shatzer). Since the Sixth Amendment right to counsel attaches 

Interrogations and Interviews 445
when the defendant is charged (the defendant’s custodial status 

is immaterial for Sixth Amendment purposes), this right would 

continue to apply to an officer’s attempt to question the 

defendant who is not in custody.

Unlike the Miranda rule however, a defendant’s prior request for 

an attorney will not automatically prevent the government 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 officers 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.)], they 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, 

officers cannot question the defendant without counsel being 

present. 

Re-approaching the defendant may be acceptable so long as it 

does not rise to a level of badgering that calls into question the 

voluntariness of any waiver or statement obtained thereafter. If 

the invoking defendant initiates the contact with the 

government, a valid waiver will permit questioning about the 

pending charged offenses without counsel being present. (But 

see the McDade Amendment below for possible ethical issues 

involved in contacting persons known to be represented by an 

attorney.)

12.8.6 Violations

Violations of the Sixth Amendment right to counsel may result 

in the exclusion of statements and evidence at trial.

12.8.7 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 

446 Interrogations and Interviews
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. There are 

circumstances, often pre-indictment or pre-filing when officers

may contact a represented party without the presence of his 

lawyer. However, 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.

Interrogations and Interviews 447
NOTES

448 Interrogations and Interviews
Chapter Thirteen

Officer Liability

13.1 Introduction ..........................................................450

13.1.1 Civil Rights ..........................................................450

13.1.2 Civil Liability........................................................450

13.2 Federal Criminal Remedies ....................................452

13.2.1 Title 18 U.S.C. § 241............................................452

13.2.2 Title 18 U.S.C. § 242............................................454

13.3 Federal Civil Remedies - Constitutional Torts ........456

13.3.1 Title 42 U.S.C. § 1983...........................................456

13.3.2 Bivens v. Six Unknown Named Agents .................457

13.4 Civil Liability / Bivens and Qualified Immunity .....458

13.4.1 Unlawful Arrests / Searches Without PC..............458

13.4.2 Submitting False/Misleading Affidavits ................459

13.4.3 Fourth Amendment Excessive Force Claims .........460

13.4.4 Failure to Intervene / Excessive Force..................461

13.4.5 Immunity for Constitutional Violations ................462

13.5 Civil Liability Under State Tort Principles..............464

13.5.1 Negligent Torts.....................................................465

13.5.2 Intentional Torts ..................................................468

13.6 The Federal Tort Claims Act (FTCA) .......................469

13.6.1 Negligent Torts.....................................................470

13.6.2 Intentional Torts ..................................................470

13.6.3 Scope of Employment...........................................471

13.6.4 Initiating a Civil Lawsuit under the FTCA.............473

13.6.5 Defenses to Negligent and Intentional Torts..........474

Officer Liability 449
13.1 Introduction

Law enforcement work is dangerous. Contact with the public is 

constant, often confrontational and charged with emotion. 

Within this context, law enforcement officers 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.

Officers must perform their duties in accordance with the 

Constitution and federal law. They may be both civilly and 

criminally liable for violations of civil rights if duties are 

discharged unreasonably, recklessly, or indiscriminately, or 

exceed the scope of employment and authority.

13.1.1 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 selfincrimination; and the Eighth Amendment’s protection against 

cruel and unusual punishment. Federal statutes add to the list 

of civil rights, including rights established in the areas of 

education, employment, voting, and access to public facilities 

and accommodations.

13.1.2 Civil Liability

(a) 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 

450 Officer Liability
injunction. An injunction is an order from a court that 

prohibits someone from doing something.

(b) 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 

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 

Officer Liability 451
torts, the remedies are not mutually exclusive. The same act or 

conduct can be the subject of both criminal prosecution and 

civil suit.

13.2 Federal Criminal Remedies

Congress passed criminal statutes designed to punish those 

who violate the civil rights of others.

13.2.1 Title 18 U.S.C. § 241, 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

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.

(a) Elements of Crime One

The elements of the first crime are:

• A conspiracy;

452 Officer Liability
• 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.

(b) 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;

• 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.

Officer Liability 453
13.2.2 Title 18 U.S.C. § 242, 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.

(a) 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.

(b) “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 

454 Officer Liability
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 

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.

(c) “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.

Officer Liability 455
“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. 

13.3 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.

13.3.1 Title 42 U.S.C. § 1983 (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.

456 Officer Liability
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.

“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.

13.3.2 Bivens v. Six Unknown Named Agents of The

 Federal Bureau of Narcotics

Until the 1971 Supreme Court decision, Bivens v. Six Unknown 

Named Agents of the Federal Bureau of Narcotics,1 a person 

whose civil rights were violated by a federal officer or agent was 

unable to sue a federal agent in federal court. Title 42 U.S.C. § 

1983 was not available as by its language, it applied only to civil 

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

companion book, Legal Division Reference Book.

Officer Liability 457

 
rights violations committed by state and local officials. 

In the Bivens case, 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. 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 

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.” 

13.4 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.

13.4.1 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 

458 Officer Liability
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 

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.

13.4.2 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 

Officer Liability 459
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. 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.

13.4.3 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 

460 Officer Liability
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 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.

13.4.4 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: 

• That excessive force is being used; or 

• That a citizen has been unjustifiably arrested; or 

Officer Liability 461
• That any constitutional violation has been 

committed by a law enforcement official. 

Therefore, 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. However, 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.”

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.

13.4.5 Immunity for Constitutional Violations

(a) 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.

462 Officer Liability
(b) 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.

(c) Qualified Immunity

Qualified immunity is immunity from civil suit and entitles a

law enforcement officer to avoid standing trial or facing the 

burdens associated with civil litigation. When a law 

enforcement officer is sued for a constitutional tort, the officer 

may be entitled to qualified immunity. Qualified immunity is an 

affirmative defense that can protect the officer from individual 

civil liability and is raised by the defendant (officer). Qualified 

immunity shields government officials from personal liability for 

civil damages provided: (1) they act reasonably; 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 

Officer Liability 463
there a Constitutional violation? The Supreme Court held that 

police violate the Fourth Amendment rights of homeowners by 

bringing members of the media or other third parties into 

homes during the execution of a warrant, when the presence of 

the third parties in the home is not in aid of the warrant’s 

execution. In other words, these federal agents had committed 

a Constitutional tort.

Second, if a violation was shown, were the agents entitled to 

qualified immunity? In assessing whether a law enforcement 

officer is protected by qualified immunity, the test to be applied 

is one of “objective reasonableness.” The Supreme Court held 

that the agents acted reasonably when they relied 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.

13.5 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 

464 Officer Liability
torts (such as battery, assault, and false imprisonment).

13.5.1 Negligent Torts

For federal law enforcement officers, negligence is the most 

frequently occurring of the state law torts due to the operation 

of government motor vehicles. The elements of an action for 

negligence are: Duty; Breach of Duty; Causation; and Damages.

(a) Duty

Generally, there is no affirmative duty to act. That is, the law 

does not usually require that people intercede, even in 

situations in which they could prevent property damage, injury, 

or loss of life at no risk to themselves. Failure to intercede will 

not create civil liability for death or injury or property damage. 

There are, however, exceptions to this general rule. For 

example, there is an affirmative duty to act when the plaintiff’s 

peril results from the defendant’s own negligence. In this case, 

the defendant is expected to intercede to aid the plaintiff.

In the law enforcement context, the general rule is that there is 

no right to basic public services and no affirmative duty on law 

enforcement to act when 

members of the general public 

are imperiled. There are, 

however, exceptions to this 

general rule. Special 

relationships can exist between 

a person and law enforcement 

creating an affirmative duty to 

act, such as when the police 

promise to protect the target of 

a threat (i.e., the Witness 

Protection Program), or when they assure a caller that they are 

responding to their request for assistance. Failure to do so can 

result in civil liability when reliance on those specific promises 

of protection causes the person to forego steps to protect 

themselves.

Elements of a 

Negligent Tort

• Duty

• Breach Of Duty

• Causation

• Damages

Officer Liability 465
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 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.

(b) 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?”

466 Officer Liability
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 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.

(c) Causation

The defendant’s act that breached the duty of care must be the 

cause of plaintiff’s damages.

(d) 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 

Officer Liability 467
torts, it may also include punitive damages designed to punish 

the wrongdoer and deter future similar conduct.

13.5.2 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:

(a) Intentional Torts to Persons

• 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.

468 Officer Liability
(b) Intentional Torts to Property

• Trespass to Land: Damage to real property.

• Trespass to Chattels: Damage to personal 

property.

• Conversion: Personal property, theft.

13.6 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.

Officer Liability 469
13.6.1 Negligent Torts

The FTCA covers lawsuits for negligent or wrongful acts or 

omissions of federal employees within the scope of their 

employment that cause loss of property, personal injury or 

death. This remedy against the United States is exclusive of any 

other civil action or proceeding for money damages by reason of 

the same subject matter against the employee whose act or

omission gave rise to the claim. In those cases where the federal 

government has waived its sovereign immunity from torts, a tort 

action against the United States is the sole remedy available to 

a plaintiff. A suit against the individual federal employee

personally is precluded.

In effect, the United States has partially waived sovereign 

immunity. The United States has consented to be liable in the 

same manner and to the same extent as a private individual 

under like circumstances while reserving the right to any other 

defense to which it is entitled.

13.6.2 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.

470 Officer Liability
13.6.3 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 

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.

(a) 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 

Officer Liability 471
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, 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.

(b) 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 

472 Officer Liability
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.”

(c) Certification That Employee Was Acting Within the 

 Scope of Employment

When presented with a claim, the agency makes the initial 

decision on scope of employment. If the agency refuses to 

certify that the employee was acting within the scope of 

employment, the employee may request the Attorney General to 

so certify. Upon certification by the Attorney General that the 

defendant employee was acting within the scope of employment 

at the time of the incident on which the claim is based, the 

United States will be substituted as the party defendant. If the 

Attorney General refuses to certify scope of employment, the 

employee may petition the U.S. District Court to find and certify 

that the employee was acting within the scope of employment.

13.6.4 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 

Officer Liability 473
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.

13.6.5 Defenses to Negligent and Intentional Torts

There are several common defenses available to every defendant

to the extent that the defenses are recognized in the state where 

the tort occurred.

(a) 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.

(b) To Intentional Torts

• Consent: Knowing and voluntary consent by 

plaintiff will bar recovery against defendant. 

However, defendant’s actions much stay within 

the bounds, or scope of the consent.

474 Officer Liability
• 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. 

• 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.

Officer Liability 475
NOTES

476 Officer Liability
Chapter Fourteen

Searching and Seizing Computers 

and other Electronic Devices

14.1 Introduction..........................................................478

14.2 Private Searches....................................................478

14.3 Reasonable Expectation of Privacy in Computers...479

14.3.1 Generally .............................................................479

14.3.2 Losing REP in a Computer ...................................480

14.4 Exceptions to the Warrant Requirement ................481

14.4.1 Consent...............................................................481

14.4.2 Exigent Circumstances ........................................485

14.4.3 Plain View............................................................486

14.4.4 Search Incident to Arrest .....................................489

14.4.5 Inventory Searches ..............................................489

14.5 Preparing Warrants to Search ................................490

14.5.1 The Need for Pre-Search Information....................491

14.5.2 The Particularity Requirement .............................492

14.5.3 Justifying Off-Site Searches .................................493

14.5.4 Identifying the Need for Multiple ..........................496

14.6 Executing Warrants to Search................................497

14.6.1 Technical Assistance............................................497

14.6.2 Knock and Announce...........................................498

14.6.3 Time Frames........................................................499

14.6.4 Authentication.....................................................500

Searching / Seizing Computers and other Electronic Devices 477
14.1 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, the officer must take reasonable steps to confine the

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 the officer observes evidence 

that is immediately apparent as evidence of another crime, the 

officer may seize it under the 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.

14.2 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, the officer must limit the investigative search to the 

precise scope of the private search. Even though it was 

478 Searching / Seizing Compters and other Electronic Devices
obtained without a warrant, the evidence within that scope may 

be properly used by the government to obtain a warrant for a 

further search of that computer. Moreover, the government may 

temporarily seize that computer while it is actively seeking a 

search warrant. Of course, the officer could also conduct a 

warrantless search of that computer if a valid exception to the 

warrant requirement applies.

14.3 Reasonable Expectation of Privacy in Computers

14.3.1 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 

the officer 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 the 

government from accessing and viewing information stored in a 

computer without a warrant if, in the same situation, an officer

would be prohibited from opening a closed container and 

examining the contents. That stated, 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.

Searching / Seizing Computers and other Electronic Devices 479
14.3.2 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.

(a) 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-topeer software.

(b) 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.

(c) 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.

480 Searching / Seizing Compters and other Electronic Devices

 
14.4 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.

14.4.1 Consent

If a person gives valid consent to search, a warrant is not 

required.

(a) 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.

(b) 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 the officer 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?

The scope of a consent search is defined by the terms and plain 

meaning of the consent given. An individual may limit the 

Searching / Seizing Computers and other Electronic Devices 481
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, the officer

must immediately stop searching unless another Fourth 

Amendment exception applies. Of course, any incriminating 

evidence that the officer 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 the officer then 

wants 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, the officer 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 the 

government wants to search them.

(c) 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, the government 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 

482 Searching / Seizing Compters and other Electronic Devices
might also permit law enforcement to search this “common 

area” as well. A private third party may consent to a search of 

property under the third party’s joint access or control. This 

rule often requires the officer 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

(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 non-consenting 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, the 

officer 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).

Searching / Seizing Computers and other Electronic Devices 483

 
(d) 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.

484 Searching / Seizing Compters and other Electronic Devices
14.4.2 Exigent Circumstances

Under the “exigent circumstances” exception to the warrant 

requirement, the officer 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 the 

government 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 the government 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, the officer must quickly 

move to obtain a warrant unless valid consent to search is 

obtained.

Searching / Seizing Computers and other Electronic Devices 485
14.4.3 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, the officer 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 the officer to engage in 

a search for which he or she did not have independent 

authority, such as consent or a search warrant. Rather, while 

the government is engaged in an otherwise lawful search, plain 

view allows the officer to seize evidence of another crime when 

the incriminating nature of that evidence is immediately 

apparent.

In computer cases, this means that the government 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 an officer observed a computer in a 

public place and saw data on a suspect’s computer monitor that 

constitutes probable cause evidence of a crime, he or she may 

immediately seize that computer to prevent the destruction of 

the data. Thereafter, if the officer wished to conduct a further 

search of that computer, he or she will need a warrant or 

consent to do so. However, what the officer observed 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 

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.

486 Searching / Seizing Compters and other Electronic Devices

 
admissible because the agent was lawfully searching 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 

Searching / Seizing Computers and other Electronic Devices 487
follow the Ninth Circuit’s decision in the CDT case. The Mann

court approved the government’s use of software to 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 an officer finds

evidence of a crime that is arguably outside the scope of the 

warrant, the officer may seize it under the plain view authority. 

If the officer has not yet concluded the search reasonably 

permitted by the search warrant, the officer may continue that 

search. If, however, the officer’s intent is in any way to expand 

the search to include evidence of the criminal activity beyond 

the scope of the search warrant, the officer must obtain a 

separate search warrant. In doing so, the officer may 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 the originally-authorized search, and 

488 Searching / Seizing Compters and other Electronic Devices
then re-commence searching once the government has obtained 

the additional search authority.

14.4.4 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.

In June 2014, the Supreme Court resolved the split in the 

circuits regarding the SIA of a cell phone. Recognizing that 

modern cellphones have the capability to store and access huge 

amounts of private data, Chief Justice Roberts noted:

"Modern cell phones are not just another technological 

convenience. With all they contain and all they may reveal, they 

hold for many Americans “the privacies of life". The fact that 

technology now allows an individual to carry such information 

in his hand does not make the information any less worthy of 

the protection for which the Founders fought."5

Accordingly, the court held that a warrant is required to search 

a mobile phone.

14.4.5 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 

5 Riley v. California, 573 U. S.____, (slip op., at 28) (2014).

Searching / Seizing Computers and other Electronic Devices 489

 
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.

14.5 Preparing Warrants to Search and/or Seize Computers

Searches that target computers and data are potentially 

somewhat different from traditional searches. In most 

searches, the government is looking for a particular physical 

item in a 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, 

the government 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. 

490 Searching / Seizing Compters and other Electronic Devices
Court cases recognize that computer records are extremely 

susceptible to tampering, concealment, and destruction.

14.5.1 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 a search warrant, the officer should attempt to 

determine:

• What types of computers and operating systems is the

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?

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.

Searching / Seizing Computers and other Electronic Devices 491
14.5.2 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.

(a) The “Independent Component Doctrine”

The officer 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 the government wants 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, the government may wish to seize 

a keyboard, monitor, cables or other devices during the search. 

If so, each item must be independently listed and its seizure 

justified.

Other items to search for would include computer manuals so 

officers and forensic examiners know how to circumvent 

encryption and/or passwords; original software and manuals; 

and notes and journals that might contain passwords, 

encryption keys, e-mail addresses, Internet URLs (addresses), 

and indexes of storage media.

492 Searching / Seizing Compters and other Electronic Devices
(b) 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, the government must 

articulate probable cause that the data exists, and describe 

what that data is. The officer 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, the 

government 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, the officer 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 

manipulate data. In such a case, not only is seizing of the 

computer important, but searching the data is as well.

14.5.3 Justifying Off-Site Searches

In many, if not most, computer searches, the government will 

want to remove the computer from the location listed in the 

Searching / Seizing Computers and other Electronic Devices 493
search warrant and conduct the search and forensic analysis of 

its contents at a different location. If so, the government must 

ask for and justify an off-site search in the search warrant 

affidavit and ensure that the 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 the officer

considers such factors and include sufficient information in the

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, 

the officer must articulate in the 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: The 

government 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.

• 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.

494 Searching / Seizing Compters and other Electronic Devices
• Labeling, intentional mislabeling, and hiding data: Even 

if the government knows specific information about the 

files sought, 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 self-destruct 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.

• Safety of the Officers and Preserving Law Enforcement 

Techniques and Methods: A lengthy search in the target’s 

home or business may unnecessarily expose officers 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, the government should seize the items and 

not search them until a new search warrant has been obtained 

justifying the removal of the items.

Searching / Seizing Computers and other Electronic Devices 495
14.5.4 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) 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, the officer

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 email. 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.

496 Searching / Seizing Compters and other Electronic Devices
Is a Multiple-Jurisdiction Warrant Required?

Stored Electronic Communications 

(e-mails) in the hands of Internet 

Service Providers

Data

• Any judge in any district who 

has jurisdiction over the 

offense.

• Such a warrant is valid in any 

district where the stored emails 

are kept.

• From a judge in the 

district where the 

data is located.

• A separate warrant is 

required for each 

district.

14.6 Executing Warrants to Search and/or Seize Computers

14.6.1 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, the officer 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 nonlaw enforcement officers to aid in the execution of a warrant. 

That statute provides:

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 the 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 

Searching / Seizing Computers and other Electronic Devices 497
but the simplest cases, consult a forensics expert in planning 

the search, obtaining the warrant, and executing the search.

14.6.2 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 

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 

498 Searching / Seizing Compters and other Electronic Devices
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 the officer acquire as much 

information as possible in advance of the search about the

criminal suspect and the computer hardware and software that 

will be the subject of the search. When the officer has reason 

to believe that knocking and announcing the government’s 

presence would result in the destruction of any evidence being 

sought, would be dangerous, or would be futile, the officer 

should request a no-knock warrant from the magistrate judge. 

Even if a no-knock warrant is not obtained, the knock-andannounce statute does not prevent the officer from conducting a 

no-knock search, if, upon arrival at the search location, the 

officer develops 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, the 

officer may exercise independent judgment and decide to 

conduct a no-knock search when executing the search, even if 

he or she does not have a no-knock warrant.

For example, while approaching a residence with a warrant to 

search for data, an officer develops reasonable suspicion that 

his 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 the officer 

dispenses with the knock and announce requirements, he or 

she must be prepared to articulate the basis for this decision to 

a judge.

14.6.3 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 

Searching / Seizing Computers and other Electronic Devices 499
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, the 

government 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.

14.6.4 Authentication of Information Contained on 

 Computers

This material is covered in Chapter 4, Section 4.13 in this 

Handbook.

500 Searching / Seizing Compters and other Electronic Devices
Chapter Fifteen

Use of Force - Legal Aspects

15.1 Introduction..........................................................503

15.1.1 Graham v. Connor ...............................................503

15.1.2 The Facts in Graham ...........................................503

15.1.3 The Objective Test and the Reasonable Officer .....505

15.1.4 The No “20/20” Hindsight Rule............................508

15.1.5 No Perfect Answers ..............................................508

15.1.6 The Graham Factors ............................................509

15.1.7 Other Factors ......................................................511

15.2 Deadly Force .........................................................512

15.2.1 Tennessee v. Garner ............................................512

15.2.2 Other Shooting Cases ..........................................513

15.2.3 Use of Force Reports – Facts vs. Conclusions .......516

15.2.4 Scott v. Harris......................................................518

15.3 Intermediate Weapons ...........................................520

15.3.1 The Nature of the Intrusion..................................521

15.3.2 Batons.................................................................521

15.3.3 Oleoresin Capsicum Spray ...................................521

15.3.4 Electronic Control Devices ...................................521

15.3.5 ECDs – Battling Expert Witnesses........................522

15.3.6 ECDs – Weapons Confusion.................................523

15.3.7 The Governmental Interest...................................524

15.3.8 Intermediate Weapons When Suspect is 

 Under Control......................................................524

15.3.9 Active Resistance .................................................525

15.3.10 Threat................................................................526

15.3.11 Multiple Electro-Shocks .....................................529

15.3.12 Flight.................................................................530

15.3.13 Control vs. Compliance ......................................531

15.4 Myths vs. Reality...................................................532

15.4.1 I thought I had to “fear for my life.” ......................532

15.4.2 I thought I had to see the gun..............................533

15.4.3 Deadly Force and Felonies ...................................533

15.4.4 Warnings .............................................................533

15.4.5 Shooting Someone More Than One Time ..............533

15.4.6 Agency Policy and the Law ...................................534

15.4.7 Using a Minimal Amount of Force ........................534

Use of Force 501
15.5 Qualified Immunity ...............................................534

15.5.1 The Rationale.......................................................534

15.5.2 Getting Qualified Immunity..................................535

15.5.3 Qualified Immunity Under Either Element ...........537

15.5.4 Qualified Immunity: Denied ................................538

15.6 After the Fight.......................................................539

502 Use of Force
15.1 Introduction

“How will I be judged by a court of law if someone sues me for 

using excessive force?” That is a fair question from someone 

studying to be a law enforcement officer. This chapter focuses 

on the legal aspects for using force in the course of effecting an 

arrest, investigatory stop, or other seizure of a free citizen. 

15.1.1 Graham v. Connor

The leading case on use of force is the 1989 Supreme Court 

decision in Graham v. Connor.1 The Court held, “...that all 

claims that law enforcement officers have used excessive force –

deadly or not – in the course of an arrest, investigatory stop, or 

other seizure of a free citizen should be analyzed under the 

Fourth Amendment and its objective reasonableness 

standard...”

A seizure occurs when a law enforcement officer terminates a 

free citizen’s movement by a means intentionally applied. 

Traffic stops, investigative detentions, and arrests are all 

seizures under the Fourth Amendment. To seize someone, an 

officer may yell, “Stop!” The officer may use handcuffs, a baton, 

or firearm to make him stop. Every aspect of a seizure must be 

objectively reasonable – including its inception, the degree of 

force used, and its duration. This chapter focuses on the 

degree of force an officer may use to seize someone. The Fourth 

Amendment chapter discusses when, and for how long someone 

can be seized; but they are all related and go to the overall 

question – was the seizure objectively reasonable?

15.1.2 The Facts in Graham

Mr. Graham was a diabetic. After feeling the onset of an insulin 

reaction, he called his friend Berry and asked for a ride to a 

convenience store. Graham hoped to buy some orange juice. 

He thought that the sugar in the juice would counteract the 

reaction.

1Graham v. Connor, 490 U.S. 386 (1989); See the Legal Division Reference 

Book.

Use of Force 503

 
Graham and Berry arrived at the store. Graham got out of the 

car and “hastily” went inside. Unfortunately, the check-out line 

was too long for Graham so he “hastily” returned to the car, got 

in, and told Berry to drive to another friend’s house. Maybe this 

friend would have some juice.

Waiting outside the store was Officer Connor. Connor had 

watched Graham hastily enter and leave the store. He

suspected something was amiss. Connor followed the two men 

for a block or so before activating his overhead lights. Berry 

pulled over.

Berry tried to explain that his friend was just having a “sugar 

reaction” but Connor was not convinced. Connor told the two 

men to wait at their car while another officer returned to the 

store to determine what happened. Things got worse from that 

point. 

Graham got out of the car. He ran around the car two times, 

sat down on the curb, and momentarily passed out. Back-up 

officers arrived. According to Mr. Graham, he was violently 

picked up, pushed against a police car, handcuffed, and placed

into the backseat of one of the cruisers. 

All this time, Berry, and Graham after he regained 

consciousness, tried to explain that that Graham was just 

having an insulin reaction. But their pleas had no effect. One 

officer commented that he had seen a lot of people with diabetes 

before and that none of them had acted like Graham. In the 

officer’s opinion, Graham was just drunk. 

Connor finally received the report from the officer who returned 

to the store. The officer confirmed what Berry and Graham had 

been saying – nothing was amiss. But in the meantime, Mr. 

Graham had suffered cuts on his wrist, a bruised forehead, a 

broken bone in his foot, an injured shoulder, and persistent 

ringing in his ears.

Graham sued the police officers. On appeal, the Supreme Court 

stated that the officers should be judged based on the Fourth 

504 Use of Force
Amendment’s objective reasonableness test.

15.1.3 The Objective Test and the Reasonable Officer

The Court stated, “The reasonableness of a particular use of 

force must be judged from the perspective of a reasonable 

officer on the scene, rather than with the 20/20 vision of 

hindsight.” The objective test requires the court to envision a 

reasonable officer and ask this question: Based on the totality of 

the facts and circumstances, could such an officer believe that 

the force was reasonable?

Since the objective test judges the officer through the lens of a 

reasonable officer, the subjective beliefs of the actual officer,

whether they are good or bad, are not relevant. Officer Connor

may have honestly believed that Graham was a shoplifter; 

however, the objective test asks whether a reasonable officer 

could believe that, based on the facts. 

In short, facts make force reasonable. The objective test 

requires officers to rely on their senses, or what they saw, 

heard, smelled, tasted, or touched, and then articulate a factual 

basis for what they did. Was it reasonable to stop and use force 

on Mr. Graham? The Supreme Court said this was the relevant 

question. What follows are some facts and circumstances that 

could cause a court to find that the force was reasonable. Some 

of these facts are for illustrative purposes, only, and are not in 

the Graham decision.

For example, Officer Connor might write in his use of force 

report:

“I saw Mr. Graham run into the store. Less than 

15-seconds later, I saw him run back out and get 

into Berry’s car. I heard the tires screech as the car 

drove away at a high rate of speed.”2

Based on those facts, what could a reasonable officer say? The 

2 This is a hypothetical use of force report that is intended for instructional 

purposes only. It is not Officer Connor’s report.

Use of Force 505

 
Supreme Court’s decision in Terry v. Ohio states that an officer 

may conduct an investigative detention based on articulable 

facts that give reasonable suspicion that criminal activity is 

afoot.3

An officer’s training and experience is relevant. Connor might 

add: 

“Based on what I saw, and my department having 

received no less than four complaints of shoplifting 

from this store within the past two weeks, I 

activated my overhead lights and Berry pulled to 

the side of the road.” 

Connor would be admitting to effecting a Fourth Amendment 

seizure; but a seizure is reasonable if Connor can point to 

specific, articulable facts indicating that criminal activity is 

afoot.

It should be obvious by now that the officer must help the court 

visualize what happened. Using good action verbs in a written 

report makes that visualization possible. Connor might write: 

After Berry stopped, I walked to his car. I saw 

Berry behind the wheel. I saw Graham seated on 

the passenger side. I told both of the men to wait 

at the car. I ordered another officer to go back to 

the convenience store and find out what happened. 

Then Graham got out of the car. Graham opened 

the passenger door. He ran around the car two 

times. Then he sat down on the curb and fell over 

as if he had passed out.

Personal beliefs (or conclusions) are generally appropriate, if 

they are supported by facts. Connor might state: 

I believed that Graham was under the influence of 

alcohol based on my experience with intoxicated

people. They are generally irrational. Graham was 

3 Terry v. Ohio, 392 U.S. 1 (1968); See the Legal Division Reference Book.

506 Use of Force

 
irrational; he ran around the car two times after I (a 

police officer) told him to wait at the car. Then he 

sat on the curb and fell over - as if he passed out.

Connor might add:

“Graham’s eyes were glassy. His speech was 

slurred. His breath smelled sweet, like alcohol.” 

Referring back to his training and experience, 

Connor could explain why intoxication is relevant. 

“I know that many assaults on police officers are 

committed by people under the influence of alcohol 

or narcotics.”4

But mere conclusions like “Graham appeared drunk” or “He 

posed a threat to me” are not relevant. Note the differences:

Facts: “I ordered Mr. Graham to stay in the car. Instead, Mr. 

Graham got out of the car.”

Conclusion: “Mr. Graham was non-compliant.”

Officers should avoid statements like, “The suspect indicated 

[that he would not do as I ordered]” or “He suggested [that he 

had a weapon]” or “He implied [that he would fight me].” For 

the court, trying to visualize what happened, those statements 

raise too many questions. How? Cop talk creates the same

confusion. Note the differences:

Facts: “I ordered the suspect to keep his hands on the steering 

wheel of the car. Instead, he reached under the seat with his 

right hand.

Cop talk: “The suspect made a furtive movement.”

Facts: “The suspect put one foot in front of the other like a 

boxer and clenched his fists.”

4 Darrell L. Ross, “Assessing Patterns of Citizen Resistance During Arrest,” 

FBI Law Enforcement Bulletin 1999.

Use of Force 507

 
Cop talk: The suspect showed pre-assault indicators. 

Stating conclusions is easy; good fact articulation is not. To 

make matters more difficult, officers often experience tunnel 

vision, auditory exclusion, and memory loss in stressful 

situations. But officers should still “paint the picture” with the 

sights and sounds they remember. While it may be impossible 

to recall exactly what the suspect said, the officer may still 

remember that the suspect screamed at me; that his face was 

beet red; and that he clenched his fists, like a boxer. 

15.1.4 The No “20/20” Hindsight Rule

Officers are judged based on the facts that are reasonably 

known to them at the time they used the force. If that is the 

question, what officers learn later (after-the-fact) is not relevant 

under the objective test. What was not available to the officers 

when Graham was initially stopped, handcuffed, and put in the 

cruiser was the report from the officer who returned to the 

store. Nothing was amiss. But again, using that report would 

be judging the officers based on 20/20 hindsight. 

The no “20/20” hindsight rule probably worked to Officer 

Connor’s advantage, in this case. But what if Connor had 

learned the next day that Graham had previously assaulted a 

police officer? In that case, the rule would work to Connor’s 

disadvantage. Why? He did not know that fact when he used 

the force on Graham. Again, what were the facts reasonably 

known to the officer at the time? 

 

15.1.5 No Perfect Answers

“The test for reasonableness under the Fourth Amendment is 

not capable of precise definition or mechanical application,” the 

Court stated. Allowance must be made for the fact that 

“...police officers are often forced to make split-second 

judgments – in circumstances that are tense, uncertain and 

rapidly evolving – about the amount of force that is necessary in 

a particular situation.” Obviously, there may be more than one 

way to effect a seizure in a tense, uncertain, and rapidly 

508 Use of Force
evolving event - and while hindsight may prove one option 

better than another - what matters is whether the one chosen at 

the time fell within the range of reasonableness. 

15.1.6 The Graham Factors – When is Force Reasonable?

The Court stated that determining whether the force used is 

reasonable requires a careful balancing of the nature of the 

intrusion on the suspect’s liberty against the countervailing 

governmental interest at stake. While this may sound 

complicated, it is actually a simple task. What did the officer do 

to the suspect (or what was the nature of the intrusion on the 

suspect’s liberty) and why did the officer do it (or what was the 

governmental interest at stake that justified the intrusion)?

Applying the Graham factors to the facts of a case can help 

determine the governmental interest for using force. These 

factors are like a checklist of possible justifications for using 

force. Not all of the factors apply in every case. The Graham

factors are: 

1. The Severity of the Crime

The “severity of the crime” generally refers to the reason for 

seizing or making someone submit to governmental control in 

the first place. Officer Connor may have been acting under a 

reasonable suspicion that Graham stole something from the 

store. Arrests and investigative detentions are traditional, 

governmental reasons for seizing people. Generally, the more 

serious the crime at issue, the more intrusive the force may be.

There may be a governmental interest for seizing someone who 

is not suspected of any wrongdoing. Reasonable force may be 

used to control the movements of innocent passengers during a 

traffic stop.5 During a search for contraband, reasonable force 

may be used to detain people on the premises.6 The operative 

5 Pennsylvania v. Mimms, 434 U.S. 106 (1977); Maryland v. Wilson, 519 

U.S. 408 (1997); See the Legal Division Reference Book. 6 Michigan v. Summers, 452 U.S. 693 (1981); See the Legal Division 

Reference Book.

Use of Force 509

 
word under the Fourth Amendment is reasonableness. 

2. The Immediacy of the Threat 

Whether the suspect is an immediate threat to the safety of the 

officer or others is generally considered the most important 

governmental interest for using force. The greater the threat, 

the greater the force that is reasonable. 

3. Actively Resisting Arrest 

Resisting an arrest or other lawful seizure affects several 

governmental interests. It may prevent the officer from effecting 

an arrest, investigating a crime, controlling a traffic stop, or 

executing a search warrant. In addition, the nature of the 

suspect’s resistance might also pose a threat to the safety of the 

officer or others.

4. Attempting to Evade Arrest by Flight

Attempting to evade an arrest or other lawful seizure by flight 

frustrates some of the same governmental interests as 

resistance. Suspects who attempt to evade arrest or other 

lawful seizure by flight, might, under certain circumstances, 

also pose a threat to the safety of the officer or others.

With the facts, the court can apply the Graham factors to 

determine if an officer’s use of force was objectively reasonable. 

In Graham, for example, the offense at issue was possible 

shoplifting; and the initial intrusion Graham’s liberty was 

sitting in a car beside the road while a back-up officer returned 

to the convenience store. Granted, the intrusion on his liberty 

became much greater, but so did the governmental interest at 

stake. Recall that Officer Connor told Berry and Graham to 

wait at the car. Graham resisted that order. He got out of the 

car. Add that to evidence of Graham’s possible intoxication and 

a reasonable officer might believe that Graham posed an 

immediate threat to Officer Connor; to other motorists on the 

adjoining road; and to Graham, himself. So what would a 

reasonable officer say? Was it objectively reasonable to at least 

510 Use of Force
handcuff Mr. Graham and put him in the back of the patrol 

car?

15.1.7 Other Factors

The Graham factors are not a complete list. While the lower 

courts have listed other factors, most are a subset of what is 

generally considered the most important factor: the immediate 

threat to the officer or others. For example, the number of 

suspects verses the number of officers may affect the degree of 

threat. Initially, it was Officer Connor against two suspects. 

Also affecting the degree of threat is the size, age, and condition 

of the suspect confronting the officer. Is the suspect 75 years 

old and frail, or 25, 6’2” and about 250 pounds? The duration 

of the action is important. How many times does an officer 

have to tell a suspect to get out of a car before using force to 

make him? And any officer would want to know a suspect’s 

criminal or psychiatric history, if possible.

Time is also a factor, as is the need for the force in light of the 

Court’s statement that “The calculus for reasonableness must 

embody allowance for the fact that police officers are often 

forced to make split-second judgments - - in situations that are 

tense, uncertain, and rapidly evolving - - about the amount of 

force that is necessary in a particular situation.” A robbery 

suspect who reaches into his waistband creates some splitsecond decision making for the officer; more deference should

be given to the officer’s decision. But not every encounter 

requires split-second decision making. The more time the 

officer has, the more options the officer can consider. In a case 

where protestors are simply refusing to get up and leave, 

spraying them with oleoresin capsicum (OC) spray is probably 

not necessary to make them. There is time to consider less 

intrusive options.7

7 Headwaters Forest Defense v. The County of Humboldt, 276 F.3d 1125, 

1130 (9th Cir. 2002). (It is the need for force which is at the heart of the 

Graham factors.)

Use of Force 511

 
15.2 Deadly Force

Shooting a suspect is “deadly force.” This is the highest level of 

intrusion on someone’s liberty, so it must be justified by a very 

high governmental interest. 

15.2.1 Tennessee v. Garner8 – Force highly likely to have 

 deadly effects.

The Supreme Court’s decision in Tennessee v. Garner started

with a complaint about a prowler inside a house. Two police 

officers responded and one of them saw Garner run out of the 

house. The officer saw no sign that Garner was carrying a 

weapon and was “reasonably sure” he was not armed. The 

officer yelled “police, halt!” but Garner kept running. When 

Garner began to climb over a fence, the officer had two options. 

He could let Garner escape, or shoot him. Relying on a 

Tennessee statute that allowed police officers to use all 

necessary force to effect the arrest of any fleeing felon, the 

officer did what he deemed was necessary. He shot Garner in 

the back of the head. 

The Court held that the Tennessee statute was unconstitutional 

in so far as it authorized the use of deadly force to stop any

fleeing felon. The court decided Garner before Graham; 

however, applying the facts in Garner to the Graham factors 

illustrates why the force was unreasonable. The “seriousness of 

the crime” was burglary and Garner “attempted to evade arrest 

by flight.” That was all. The governmental interest was not 

strong enough to justify what the officer did. “It is not better 

that all felony suspects die than that they escape” the Court 

stated. “We conclude that such force may not be used unless it 

is necessary to prevent the escape and the officer had probable 

cause to believe that the suspect posed a significant threat of 

death or serious physical injury to the officer or others.”

8 Tennessee v. Garner, 471 U.S. 1 (1985); See the Legal Division Reference 

Book.

512 Use of Force

 
15.2.2 Other Shooting Cases

In light of Garner, shooting a suspect with a firearm is not 

unconstitutional when a reasonable officer would have probable 

cause to believe the suspect posed a significant threat of death 

or serious physical injury to the officer or others. Probable

cause is a common-sense, all things considered standard for 

assessing probabilities in a particular factual context. A

warning also adds to the reasonableness of a force option, but

is not always feasible.

(a) Could a reasonable officer believe the suspect posed a 

 threat of serious bodily harm? 

Consider Ayala v. Wolfe.9 Late one night, Officer Wolfe 

responded to a report that three men had robbed a restaurant 

and then fled on foot. Wolfe saw Ayala just a few blocks away.10

Wolfe stopped his cruiser, ordered Ayala to put his hands on 

the hood, and began to frisk Ayala. Wolfe felt a gun in Ayala’s 

waistband. Upon feeling the gun, Wolfe backed away, moved 

behind the cruiser, and drew a pistol. Without a word of 

explanation, Ayala took his hand off the hood (where he had 

been ordered to keep it) and removed the gun from his 

waistband. Wolfe shot Ayala several times. Wolfe’s first bullet 

knocked Ayala’s gun out of his hand. But the muzzle flash and 

darkness prevented Officer Wolfe from seeing Ayala’s gun fall. 

Wolfe fired until Ayala hit the ground.

Ayala claimed that Officer Wolfe used excessive force by 

shooting him initially, and by continuing to shoot after he 

dropped the gun. The United States Court of Appeals for the 

Fourth Circuit viewed the facts through the lens of a reasonable 

officer.

9 Ayala v. Wolfe, 546 Fed. Appx. 197 (4th Cir. 2013). 10 Ayala, at 200. (The Court did not consider whether Officer Wolfe had 

reasonable suspicion to stop Ayala because Ayala failed to properly raise this 

issue.) 

Use of Force 513

 
(b) Does the officer have to wait until the suspect points 

 the gun at the officer?

Wolfe ordered a robbery suspect to put his hands on the car 

and felt a gun during the frisk. Another crucial fact was that 

Ayala took his hands off the car and removed the gun from his 

waistband, without any explanation. “But I never pointed the 

gun at Wolfe,” Ayala claimed. Still, a reasonable officer would 

have cause to fear serious physical harm.

(c) What facts will the court consider? 

Ayala’s next argument was that the threat was gone after he 

dropped the gun. He made a valid point: Force justified at the 

beginning of an encounter is not justified later if there is no 

longer a significant threat. But officers are judged based on the 

facts reasonably known to them at the time. The darkness and 

the muzzle flash prevented Wolfe from seeing Ayala’s gun fall. A

reasonable officer could believe that Ayala still held the gun,

and that continuing to shoot was reasonable.

The bottom line: Facts make force reasonable. 

“No citizen can fairly expect to draw a gun on police without 

risking tragic consequences,” the Fourth Circuit stated. The 

Court would also caution officers not to rely too heavily on

generalized statements. Facts make force reasonable. They did 

not in Cooper v. Sheehan.11

After receiving a 911 call, officers drove to Mr. Cooper’s house. 

It was late at night. According to Mr. Cooper, the officers came 

on his property and walked to his house without announcing 

themselves. From inside, Cooper called, “Who’s out there?” 

When no one answered, Cooper walked out on the porch with 

his shotgun. Cooper said that he held the butt of the shotgun 

with his right hand and that the muzzle was pointed at the 

ground. Without warning, Cooper claimed that the officers 

immediately fired and that he was hit multiple times. Those

facts failed to support the proposition that a reasonable officer 

11 Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013).

514 Use of Force

 
would have cause to feel threatened by Cooper’s actions. 

Simply walking out on one’s porch with a firearm to investigate 

is nothing more than any free citizen might do.

(d) Change the facts, change the answer (about whether 

 force is reasonable).

Just holding a firearm is not enough to justify deadly, or any 

force. But what if the officers had identified themselves to 

Cooper as police and their commands to drop the gun went 

unheeded? In Montoute v. Carr,12 a man fired an illegal sawedoff shotgun in a crowd of people during a near-riot situation. 

Still holding the gun, he ran past an officer who repeatedly 

ordered him to drop it. While he never turned to face the officer 

again, or pointed the gun at anyone, the Eleventh Circuit

recognized “There was nothing to prevent him from doing either, 

or both, in a split-second.” At least where orders to drop the 

weapon have gone unheeded, an officer is not required to wait 

until an armed and dangerous suspect has drawn a bead on the 

officer before shooting him first.

A suspect may also turn very violent, very quickly. When he 

does, more deference is made for split-second decisions. 

Consider the Eighth Circuit’s decision in Morgan v. Cook.13 

Two officers were dispatched separately to the Morgan residence 

about a domestic dispute. Officer Cook arrived first, got out of 

his car, and walked towards the house. Cook saw Mr. Morgan 

on the porch. Morgan walked towards some chairs, stumbled 

over one, and fell into a recliner. Based on past dealings with 

Morgan and the way he was walking, Cook believed Morgan was 

intoxicated. 

Officer Cook stopped about six to twelve feet from the front 

porch. Then Morgan’s girlfriend came out. “He’s got a knife,” 

she said. Cook looked and saw Morgan try to conceal a 

kitchen-type knife in his right hand. Cook drew his pistol, told 

the girlfriend to go back inside, and twice ordered Morgan to 

drop the knife. Instead, Morgan got out of the recliner. Now

12 Montoute v. Carr, 114 F.3d 181 (11th Cir. 1997). 13 Morgan v. Cook, 686 F.3d 494 (4th Cir. 2012).

Use of Force 515

 
standing, and with the knife still in his hand, Morgan raised his 

right leg - as if to take a step in Cook’s direction. Officer Cook 

fired one shot, killing Morgan. The Court found that a 

reasonable officer could believe that Morgan posed an 

immediate threat of serious bodily harm to the officer.

Morgan’s Estate tried to argue that the step forward did not 

create an immediate threat. But there was more than just that. 

Cook had ordered Morgan to drop the knife; the knife was in 

Morgan’s hand; Morgan was less than twelve feet from the 

officer; and he appeared to be coming forward.

(e) The law requires objectively reasonable force, not the 

 minimal force. 

Morgan’s Estate also argued that Cook had non-lethal 

alternatives available. It argued that Officer Cook should have

warned Morgan that he would fire; that Cook should have used

an intermediate weapon instead of a firearm; and, that he

should have retreated and waited for backup. But the law only 

requires that the seizure be objectively reasonable, not that the 

officer pursue the most prudent course of conduct as judged by 

20/20 hindsight. You should have... and I would have... often 

mark the beginning of subjective opinions that are based on 

just that – hindsight. And while a warning should be given if 

feasible, Morgan got one: A gun pointed at him and a command 

to drop the knife. Officer Cook did not have time to be more 

specific.

15.2.3 Use of Force Reports – Facts vs. Conclusions 

An officer involved shooting will likely require the officer to put

“pen to paper” and write a use of force report about what 

happened. What follows is a report that is based on an actual 

case before the Eighth Circuit.14 The objective test demands 

that the officer state the facts, and not make mere conclusions. 

(See if you can distinguish facts from mere conclusions in this 

report.) 

14 Krueger v. Fuhr, 991 F.2d 435 (8th Cir. 1993).

516 Use of Force

 
I am Officer Fuhr, a Springfield, Missouri police 

officer. On June 6, 1989, I received a be-on-thelookout (BOLO) for Leon Krueger. Dispatch 

described Krueger as a white/male, wearing blue 

jeans, and a black shirt with the number 12 on it. 

Dispatch stated that Krueger escaped from a halfway house and was later involved in an assault at 

the Tri-State Laundry. Another radio transmission 

stated that Krueger was high on drugs and that he 

had a knife. A third stated that Krueger was 

spotted on East Walnut. I drove to East Walnut. A

man matching Krueger’s description was on East 

Walnut. I stopped my cruiser. I got out of the car 

and I drew my pistol. The man got up and began 

running. I chased him for about 200 feet and 

yelled, “Freeze!” When I was within about 3 to 4 

yards of the man, he threatened me with a knife. 

Before he could turn around, I shot him three times 

in the back.

See the conclusions? Mere conclusions make the reasonable 

officer ask, “How?” In the report, how did the person on East 

Walnut match Krueger’s description? The officer should state

what he saw: “He was a white male wearing a black shirt and 

blue jeans. He was lying on his stomach between two cars

parked on East Walnut, as if he was hiding.”

And how did Krueger threaten the officer with a knife? This is 

what the officer saw: “When I was within about 3 to 4 yards of 

the man, I saw him reach to his right hip and grab a knife. The 

man gripped the knife in a fist. Before he could turn around, I 

shot him three times in the back.” 

“Paint the picture,” states the reasonable officer. With the facts, 

the reasonable officer (who is really the judge) can visualize 

what happened and make an objective decision about whether 

the force fell within the range of reasonableness. It did in 

Krueger v. Fuhr.

 

Use of Force 517
15.2.4 Scott v. Harris15 - How to Interpret Garner and Graham.

For several years, the lower courts believed that the Garner 

decision set rigid, preconditions as to when deadly force was 

authorized. The fact that Graham’s objective reasonableness 

test is the standard for judging all force was not made clear 

until the Supreme Court’s decision in Scott v. Harris.

Mr. Harris was speeding. When an officer signaled for Harris to 

stop, Harris fled, and a car chase ensued. Enter Officer Scott. 

Officer Scott terminated the pursuit by applying the pushbumper of his cruiser to the rear of Harris’ car, pushing Harris

off the road. Harris claimed Scott’s push was unconstitutional 

“deadly force” because Scott had not satisfied any of the Garner

conditions for using it. In case of flight, the Garner Court had 

stated:

“If...there is probable cause to believe that [the 

suspect] has committed a crime involving the 

infliction or threatened infliction of serious physical 

harm, deadly force may be used if necessary to 

prevent escape, and if, where feasible, some 

warning has been given.” 

The Garner Court was probably envisioning someone like 

Timothy McVeigh16 who would pose a significant threat to 

society merely by being at large if allowed to escape arrest. 

Harris argued that he did not pose such a threat, merely by 

being at large, and therefore, deadly force was unconstitutional

to stop him.

The Supreme Court disagreed with Harris’ argument. The 

Court stated, “Garner did not establish a magical on/off switch 

that triggers rigid preconditions whenever an officer’s actions 

constitute ‘deadly force.’” Garner merely held it was 

unreasonable to shoot a fleeing burglary suspect in the back of 

the head when the suspect posed no articulable threat. Garner

15 Scott v. Harris, 550 U.S. 372 (2007). 16 Timothy McVeigh killed 168 people on April 19, 1995 when he detonated a 

bomb in front of the Alfred P. Murrah Building in Oklahoma City. 

518 Use of Force

 
was simply an application of the objective test, described in 

more detail later in Graham. The heart of the Graham decision 

is to weigh the nature of the intrusion on the suspect’s liberty 

(what the officer did) against the countervailing governmental 

interest at stake (why the officer did it.)

The Supreme Court applied Graham’s objective reasonableness 

test. 

So, what did Officer Scott do? Scott pushed Harris’ car off the 

road with his cruiser while Harris was traveling over 80 miles 

per hour. Scott’s actions posed a high likelihood of serious 

injury or even death to Harris. 

And why did Officer Scott push Harris’ car off the road? Harris

fled when an officer activated his cruiser’s overhead lights. A

high-speed pursuit ensued. Officer Scott joined the chase and

saw Harris racing down narrow, two-lane roads in the dead of 

the night, and at speeds in excess of 85 miles per hour. Harris 

swerved around more than a dozen other cars, crossed the 

double yellow line, and forced other cars off the road to avoid 

being hit. Harris ran multiple red lights and traveled for 

considerable periods of time in the occasional center left-turnlane. Harris did all that while being chased by numerous police 

cars. Harris even rammed one of the cruisers chasing him. Six 

minutes, and nearly 10 miles after the chase began, Officer 

Scott terminated the pursuit by applying the push-bumper on 

his cruiser to the rear of Harris’ car. Harris lost control of his 

car, crashed, and his injuries left him a paraplegic.

The Court then applied the facts listed above to the Graham

factors. Granted, the underlying reason for stopping Harris was 

a minor traffic violation. But Harris fled. And his flight (by 

means of a speeding vehicle) posed the significant threat of 

serious physical harm to others, and created the strong 

governmental interest that justified what Scott did as within the 

range of reasonableness.17

17 There is not a Fourth Amendment prohibition against vehicle pursuits of 

fleeing misdemeanants. Harris argued that the public would have been 

protected, and the tragedy avoided, if the police simply ceased their pursuit. 

Use of Force 519

 
Scott v. Harris established the relationship between Garner and 

Graham. Graham established the test for judging police officers 

accused of using excessive force. The test is objective 

reasonableness. Garner provided examples as to when deadly

force, particularly shooting someone, is objectively reasonable. 

If force is highly likely to have deadly effects, the reasonable 

officer will require a very strong governmental interest for using 

it. Shooting a suspect is not unreasonable when a reasonable 

officer could believe that the suspect poses a significant threat 

of serious bodily harm to the officer or others. 

Unfortunately, there is no precise definition of what “deadly 

force” is or when it can be used. Shooting Garner in the head 

was certainly deadly. Pushing Harris off the road - - maybe not

so much, but it was still likely to cause serious injuries. And 

what about road blocks, choke holds, and baton strikes? They 

too may cause serious injuries – though maybe not the near 

certainty of serious injury posed by, say, pushing Harris’ 

speeding car off the road. Each case requires the reasonable 

officer to weigh the nature of the intrusion against the 

countervailing governmental interest at stake. 

That leads to intermediate weapons. The good news is that the 

legal standard for using them is the same.

 

15.3 Intermediate Weapons

Batons, electronic control devices (ECDs), and oleoresin 

capsicum (OC) spray have been called intermediate weapons

because they are a force option between a firearm and going 

“hands-on.” Suspects often claim that the officer should have 

gone hands-on, or done even less. Objective reasonableness is 

the test. 

However, the Court stated, “...we are loath to lay down a [constitutional] 

rule requiring the police to allow fleeing suspects to get away whenever they 

drive so recklessly that they put other people’s lives at danger.” Still, state

law and agency policy may place heightened restrictions on pursuits due to 

the extreme risks they pose to the officers and the public. See Day v. State 

of Utah, 980 P.2d 1171, 1179 (Utah 1999). 

520 Use of Force

 
15.3.1 The Nature of the Intrusion

What can an officer do with an intermediate weapon? That

obviously depends on the weapon and how it is used.

 

15.3.2 Batons

A baton can be held at port arms to gently push a protestor 

back to the sidewalk. It can also be used to strike his attacking 

limbs. A baton is capable of causing deep bruising, blood clots 

capable of precipitating a stroke, and even death. The greater 

the intrusion, the greater that the governmental interest must 

be to justify it. 

15.3.3 Oleoresin Capsicum Spray

Oleoresin Capsicum (OC) spray comes from the oily extract of 

the cayenne pepper plant. Exposure to OC creates a deep 

burning sensation and difficulty breathing. It may cause a 

suspect to stop struggling. But OC hurts, and unless the 

suspect is decontaminated, it will continue to hurt after he is 

under control. There is no governmental interest in allowing

the suspect to continue to suffer. Failing to decontaminate him 

is excessive force.18 

15.3.4 Electronic Control Devices

Electronic control devices (ECDs) come in two modes – dart and 

drive-stun. In the dart mode, the ECD uses compressed 

nitrogen to propel a pair of “probes,” or aluminum darts, tipped 

with stainless steel barbs, towards the suspect. The darts 

travel at about 160 feet per second and are connected to the 

ECD with insulated wires. When the darts strike the suspect, 

the ECD delivers a 1200 volt, low ampere electrical charge 

through the wires and probes and into the suspect’s muscles. 

The impact is as powerful as it is swift. The electrical impulse 

momentarily overrides the central nervous system and the 

suspect falls, momentarily incapacitated. That provides an

opportunity for the officer to move in with handcuffs.

18 Lalonde v. Co. of Riverside, 204 F.3d 947 (9th Cir. 2000).

Use of Force 521

 
In the drive-stun mode, the officer removes the dart cartridge 

and pushes two electric contacts located on the front of the 

ECD directly against the suspect. In drive-stun, the ECD

delivers an electronic shock. The drive-stun does not override 

the central nervous system like the dart-mode, but it is painful

and will most likely cause a struggling suspect to release his 

grip on something.

ECDs and OC have been credited with decreasing injuries 

among officers and suspects, alike. They may reduce the need 

for more serious force options, and unlike baton blows, the pain 

is generally temporary. But the reasonable officer gauges the 

nature of the intrusion, based on the facts. A dart-mode ECD 

may seriously injure a suspect standing in a tree,19 climbing 

over a fence,20 saturated with flammable liquids,21 or over 

water. Spinal injuries or death may result from falls. People 

over water may drown. People have been seriously burned after 

the ECD ignited flammable liquids. Absent a strong

governmental interest, such as when the suspect poses a 

significant threat, the ECD is excessive when any reasonable 

officer would know it is likely to cause that type of harm.

15.3.5 ECDs – Battling Expert Witnesses

More controversial is the issue about whether the ECD, alone,

causes serious injuries. Experts have testified that ECDs can 

cause ventricular fibrillation if shot into the chest of human 

beings. They argue that this may cause abnormal heart beat 

leading to stoppage and death. On the other hand, a National 

Institute of Justice panel determined that there is no conclusive 

evidence that indicates a high risk of serious injury to humans 

from short-term ECD exposure in healthy, non-stressed, nonintoxicated persons. So what is the reasonable officer to 

believe? 

ECDs rarely cause serious injuries. Statistically, they carry a 

19 Harper v. Dixon, 2014 U.S. App. LEXIS 13364 (11th Cir. 2014).

20 Snauer v. City of Springfield, 2010 U.S. Dist. LEXIS 124770 (D. Or. 2010). 21 Brown v. Burghart, 2012 U.S. Dist. LEXIS 73543 (E.D. Penn. 2012).

522 Use of Force

 
significantly lower risk of injury than physical force.22 Still, 

attention to the following manufacturer’s warnings can help 

officers stay firmly within the range of reasonableness.23

Some people may be more susceptible to the effects of ECDs. 

They include the elderly, those with heart conditions, and 

people suffering from excited delirium, severe exhaustion, drug 

intoxication or chronic drug abuse. 

Cardiac arrest may be more likely in a child or thin adult who is 

hit by a dart in the chest because the dart is closer to the heart. 

In any case, officers should use the shortest duration of ECD 

exposure objectively reasonable, and reassess the suspect’s 

behavior, reaction, and resistance before each additional 

exposure. 

Multiple exposures (using two or more ECDs at the same time) 

may increase the chance of injury. If the ECD is ineffective, 

officers should consider alternative control measures in 

conjunction with or separate from the ECD.

Officers should avoid prolonged exposures (those more than 15 

seconds) and handcuff the suspect as soon as it is safe. 

When practicable, officers should avoid shooting the suspect in 

sensitive areas. For back shots, the preferred target areas are 

below the neck. For front shots, the lower center mass (below 

the chest) is preferred. This is sometimes called “splitting the 

belt-line.”

15.3.6 ECDs – Weapons Confusion 

Finally, officers have mistaken their pistol for an ECD. The

mistake is not unconstitutional per se; instead, the reasonable 

officer decides whether the mistake was reasonable. In Henry v.

22 John H. Laub, Director, National Institute of Justice, Study of Deaths 

Following Electro Muscular Disruption 31 (2011). 23 The following warning are based on “Taser International, Inc. (Taser) 

Conducted Electrical Weapons Warnings, Instructions and Information: Law 

Enforcement.”

Use of Force 523

 
Purnell,24 for example, the officer mistook his Glock pistol for 

an ECD and shot a fleeing, nonthreatening misdemeanant in 

the elbow. The Fourth Circuit refused to dismiss the case 

against the officer because there were several facts that would 

have alerted a reasonable officer that he was holding the Glock. 

First, the officer knew he carried the ECD in a holster directly 

below the pistol. Second, the officer could feel the weight 

differences. The Glock was about twice that of the ECD. Third, 

the officer knew the ECD had a thumb safety, unlike the Glock. 

15.3.7 The Governmental Interest

The nature of the intrusion (what the officer did) is weighed 

against the counterveiling governmental interest at stake (why 

the officer did it). The issue: Could a reasonable officer believe 

that the intermediate weapon was reasonable to control the 

suspect’s active resistance, stop his flight, or deter an

immediate threat? 

15.3.8 Intermediate Weapons (IWs) are not reasonable when 

 the suspect is under control. 

Consider the facts in Lewis v. Downs.25 The suspect tried to 

stop two officers from arresting his mother and confronted them

with a rake. One of the officers drew a pistol and ordered the 

suspect to drop it. The suspect did, and while handcuffing and 

arresting him was not unconstitutional, a baton blow to the 

mouth, after he was handcuffed and being led away, was. 

The Tenth Circuit reached a similar result in Dixon v. Richer.26

Officers stopped and proceeded to frisk the suspect for 

weapons, but he purportedly did as he was told. He placed 

both hands on the hood of the car. The officers struck him

anyway. As he fell, another hit him in the stomach with a 

flashlight. Reasonable? The Court thought not.

24 Henry v. Purnell, 652 F.3d 524 (4th Cir. 2011). 25 Lewis v. Downs, 774 F.2d 711 (6th Cir. 1985). 26 Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991).

524 Use of Force

 
15.3.9 Active Resistance?

 

Like Mr. Graham, Mr. Clement was a diabetic.27 He felt the 

onset of a diabetic reaction one day and stopped his car in a 

company parking lot. When an employee told Clement to move, 

he responded in gibberish. Someone called 911 and police were 

dispatched to investigate an “intoxicated man.” They found Mr. 

Clement slouched over in the front seat of his car – apparently 

passed out. They shook and tried to revive him and told him to 

get out of the car. Clement only responded in an angry tone. 

One of the officers described Clement as unkempt; that his eyes 

were bloodshot; and that the interior of the car smelled like 

stale beer. 

When the officers opened the car door and began to pull Mr. 

Clement out, he flailed his arms. An officer managed to 

handcuff one arm. Clement would not give-up the other and 

the officer struck his free arm with a baton, which was

eventually secured with the other handcuff. Next, Clement

began to kick and try to get up. One of the officers struck 

Clement’s kicking legs three times with a baton. Another

sprayed mace in his face in the process of moving him from the 

car to the ground because Clement was swinging his arms as if 

he were trying to strike the officers. 

A paramedic arrived. By this time Clement was laying on his 

side. (The officers apparently understood the danger of 

positional asphyxia. See “After the Fight,” below.) Clement’s

blood sugar was low, and suspecting that something was

seriously wrong, he was taken to the hospital. There, one of the 

officers looked in Clement’s wallet for the first time and found 

his diabetic card. Clement’s grandmother later found his 

diabetic kit when she retrieved the car. 

Mr. Clement died two weeks later of natural causes and his

Estate sued. The Estate first alleged that the officers did not 

have probable cause to arrest him. Even if they did, the Estate 

argued that the force was excessive. The Seventh Circuit 

disagreed.

27 Padula v. Leimback, 656 F.3d 595 (7th Cir. 2011).

Use of Force 525

 
(a) What were the facts reasonably known at the time? 

There was ample evidence that Clement was driving under the 

influence of alcohol. On the other hand, the officers did not see 

the diabetic card until later. Moreover, Clement was not 

wearing a diabetic necklace or bracelet to alert the officers that 

something else was wrong. And finally, the diabetic kit on the 

car seat could have also been overlooked in the heat of the 

moment.

The force was not excessive, either. Clement did not get out of 

the car. He had to be pulled out, and then flailed his arms and 

kicked. A witness also described the baton blows as stern, but 

not severe. A reasonable officer could believe that the mace and 

measured blows were necessary to control Clement and effect 

the arrest. 

15.3.10 Threat?

In baton training, the Physical Techniques Division of the 

Federal Law Enforcement Training Centers teaches officers to 

target the suspect’s large muscle groups. But fights are 

dynamic encounters and less than precision strikes may still 

fall within the range of reasonableness. For example, in Cotton 

v. Busic28 officers responded to a call that Bobby Cotton was 

causing a disturbance. Cotton was a schizophrenic and off his 

medication. He met the officers with hunks of concrete in each 

hand and refused to put them down. A scuffle ensued. Cotton

got one of the officers in a “bear hug.” One of the officers

described him as “strong as hell.” The officers struck Cotton 

with nightsticks and flashlights, and when the fight was over, 

Cotton was missing one eye. The district court stated, “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...”

The seriousness of the offense may also alert the officer to a 

threat. In Kellough v. Bertrand,29 officers had facts to believe 

28 Cotton v. Busic, 793 F.Supp. 191 (S.D. Ind. 1992). 29 Kellough v. Bertrand, 22 F.Supp 2d 602 (S.D.Tx 1998).

526 Use of Force

 
Mr. Kellough was an armed robber. Officers stopped and

ordered him out of his car. He got out in a non-threatening 

manner. But Kellough did not immediately lie face down on the 

ground as the officers ordered. “What did I do?” he asked. That 

caused an officer to kick his legs out from under him. As he 

fell, another struck him on the arm with a flashlight. Even 

accepting Kellough’s argument that he exited the car in a nonthreatening manner, his refusal to follow the officer’s orders and 

to lie face down on the ground could cause a reasonable officer 

to employ some force to make him. While the court described 

the blow with the flashlight as “troubling,” it was not

unreasonable because it occurred before Kellough was under 

control.

(a) Change the Facts, Change the Answer 

But what if the crime at issue in Kellough was possession of 

child pornography, not armed robbery? The same urgency and 

force to get him on the ground might not fall within the range of 

reasonableness. 

Still, the seriousness of the offense is only one factor that might 

alert an officer to a threat. In Draper v. Reynolds,30 an officer 

stopped Mr. Draper because the light was out over his license 

plate. The officer asked Draper for documentation five times. 

Instead of retrieving it, Draper accused the officer of 

harassment. Draper paced beside the road, yelled, and cursed, 

“How about you just go ahead and take me to f---ing jail...” and 

“I don’t have to kiss your damn ass because you’re a police 

officer.” (Driving without the light and failing to provide the 

documents were arrestable offenses and the officer decided to 

effect one.) After the fifth request for documents, the officer 

promptly shot Draper with an ECD in the dart-mode. Draper 

fell, was quickly handcuffed, and taken into custody.

Draper argued, “There was no need to use any force. I would 

have gladly complied with the officer’s arrest commands.” On 

the other hand, the officer believed that arrest commands would 

have only escalated the matter. Based on the facts, the court 

30 Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).

Use of Force 527

 
concluded a reasonable officer could have believed that a verbal 

arrest command, accompanied by attempts to handcuff Draper, 

would have escalated an already tense and difficult situation 

into a more serious physical struggle and could have caused

either the officer or the suspect to be seriously injured.

Distinguish the facts in Draper from those in Bryan v. 

MacPherson. 

The facts made it reasonable to believe that a threat existed in 

Draper. In Bryan v. MacPherson,31 the facts fell short. Mr. 

Bryan drove onto Coronado Island one morning and stopped at 

an intersection. A police officer noticed that he was not wearing 

his seat-belt and directed Bryan to pull to the side of the road. 

Bryan did so, but he began to pound the steering wheel and to

curse (... apparently upset about the pending traffic ticket). 

Then he got out of the car. Wearing only boxer shorts and 

tennis shoes, he must have looked strange. Adding to his 

bizarre behavior, the slightly clad young man began to yell 

gibberish, expletives (though apparently not at the officer) and 

to hit his thighs. The officer was about twenty to twenty-five 

feet away from Bryan when, without warning, the officer shot 

Bryan with an ECD in the dart-mode. Bryan fell to the 

pavement, shattering his front teeth. 

The Ninth Circuit distinguished the facts in Bryan from those in 

Draper. The only similarities between the two cases were that 

both men were stopped for a traffic violation; they were loud;

and, they were shot by an ECD. In Draper, a reasonable officer 

could believe that a threat existed and that the ECD was 

necessary to effect the arrest. Draper was close to the officer, 

belligerent, and argumentative with the officer. Bryan was 

further away and appeared to be angrier with himself.

31 Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2009).

528 Use of Force

 
15.3.11 Multiple Electro-Shocks 

Each application of the ECD must be objectively reasonable. 

Not all of them were in Beaver v. City of Federal Way.32 Mr.

Beaver was a burglary suspect. He fled from the responding 

officer and a dart-mode ECD brought him to an abrupt halt. 

Besides just flight from a serious offense, other factors added to 

the reasonableness of the ECD. Beaver was about the same 

size as the officer. The facts also suggested he was under the 

influence. He was sweating, his veins were bulging, and the 

officer said he had that far-off look. 

Once down, the officer ordered Beaver in a loud voice to roll 

over on his stomach. Instead, Beaver tried to get up - and 

sixteen seconds after the first application, he was shocked a 

second time. Again, the officer commanded Beaver to roll over 

on his stomach and to extend his arms. Beaver did not 

immediately comply, and two seconds after the second 

application, he was shocked a third time.

Then a back-up officer arrived. But conflicting commands – one 

for Beaver to lie on his stomach and another to lie on his back –

were given by the two officers. Beaver apparently did not know 

what to do, and ten seconds after the third, he was shocked a 

fourth time. 

Now two officers now stood over Beaver. Beaver remained on 

the ground with his arms curled underneath his chest. No 

conflicting commands were given this time. Both officers 

ordered him to show his hand, but Beaver kept them under his 

chest, and twenty-two seconds after the fourth, he was shocked 

for a fifth and final time. Beaver finally extended his arms for 

handcuffs.

The court had no trouble with the first ECD application, but 

expressed some concern over the second and third. After

Beaver was knocked down, a witness testified that Beaver said

“I can’t” in response to the officer’s commands. So did he have

the ability comply? An expert witness also testified that 

32 Beaver v. City of Federal Way, 507 F.Supp. 2d 1137 (W.D. Wash. 2007).

Use of Force 529

 
Beavers’ actions (trying to get up) may have been as much a 

reaction to being shocked as an intentional effort to resist 

arrest. And finally, the period between the second and third 

shock was only two seconds, making it difficult to see how 

Beaver even had the opportunity to comply. Still, the court held 

that the first three shocks fell with the range of reasonableness. 

The officer was alone and had to make split second decisions. 

But the analysis changed when backup arrived. With a backup

officer, the threat diminished. Now it was two against one. And

obviously, the conflicting commands by the two officers did not 

weigh in their favor. The officers tried to argue that Beaver 

could have been holding a weapon under his chest. Still, the 

officers had no facts to believe that. They had watched him role 

around on the ground and had not seen any bulges or other 

signs of a weapon. The court held that reasonable, less 

intrusive options were available. Instead of shocking Beaver, 

one officer could hold the ECD in the ready, while another went 

in with handcuffs.

15.3.12 Flight?

Stopping a burglary suspect’s flight with an ECD was 

reasonable in Beaver. In Cockrell v. City of Cincinnati, the 

officer used an ECD to stop a fleeing jaywalker.33 The jaywalker 

fled when the officer tried to stop him, and without any 

warning, the officer shot him with a dart-mode ECD. The case 

against the officer was ultimately dismissed because the law did 

not clearly put the officer on notice that using an ECD was 

unconstitutional. It fell within that grey area between,

constitutional and excessive. 

Still, causing neuromuscular incapacitation to stop a fleeing

jaywalker...? Professional law enforcement would require a 

stronger governmental interest than that. 

 

33 Cockrell v. City of Cincinnati, 468 Fed. Appx. 491 (6th Cir. 2012)(not 

recommended for full text publication).

530 Use of Force

 
15.3.13 Control vs. Compliance

Intermediate weapons are sometimes called control tools. They 

are used to control a suspect’s active resistance, deter a threat, 

or stop his flight. They are not compliance tools. This problem 

is sometimes called passive resistance. Applying the facts to 

the Graham factors, the crime at issue is minor. The suspect is

not attempting to flee and there is no articulable threat. The 

problem? The suspect simply refuses to obey the officer’s arrest

commands. 

OC was used like a compliance tool in Headwaters Forest 

Defense v. Co. of Humboldt.34 This case concerned three 

nonviolent protests against the logging of ancient redwood trees 

in the Headwaters Forest. The protestors linked themselves 

together with self-releasing lock-down devices and sat-down. 

The officers warned them that OC would be used if they did not 

leave. When they refused the officers used it. The officers

sprayed them and applied the OC directly to their eyes with Qtips. 

These types of protests were not new to the officers. Previously, 

the officers had used electric grinders to safely remove the lockdown devices - and the protestors - in a matter of minutes. And 

the officers had done so, previously, without causing pain or 

injury to anyone. Without apparent explanation, OC was used 

here. The Ninth Circuit found that the OC was excessive. 

But in Crowell v. Kirkpatrick,35 the Second Circuit held that a

stun-drive ECD was reasonable – and did so under 

circumstances similar to those in Headwaters. Several 

protestors chained themselves to heavy barrel drums. Like the 

protestors in Headwaters, they could have released themselves 

anytime they wished. When they refused to leave, they were

warned that the officer intended to use a stun-drive ECD to 

make them. They were told that the ECD was painful and they 

were given another opportunity to release themselves before the 

ECD was used. They were shocked when they did not leave. 

34 Headwaters v. Co. of Humboldt, 276 F.3d 1125 (9th Cir. 2002). 35 Crowell v. Kirkpatrick, 400 Fed. Appx. 592 (2nd Cir. 2010).

Use of Force 531

 
And before more shocks, they were warned again. 

So how does the reasonable officer distinguish Headwaters and 

Crowell? One explanation may be that the Ninth Circuit’s 

opinion about what a reasonable officer would do is different 

than the Second’s. But the better explanation may be in the 

facts.

For one, a stun-drive ECD is arguably less intrusive than OC,

particularly when the OC is applied directly to the eyes with Qtips. The court also stated that a sense of urgency arose when 

one of the protestors asked an acquaintance at the scene to a 

call other members of their group to return to the property. 

And still another difference was that the officers in Headwaters 

had previously removed the lock-down devices in minutes. In

Crowell, the Court believed that the chains could not be 

removed by a more conventional means. 

Still, would a conventional means not include a set of boltcutters in a police car, or even back at headquarters? The 

Second Circuit did not say. Perhaps the real difference is that 

the Court was satisfied that the officers used their available 

time to find a force option that fell within the range of 

reasonableness. The more time, the more reasonable options 

the officer has to consider.

 

15.4 Myths vs. Reality

No subject is plagued with more myths than use of force. What 

follows are some of those myths about using force, and the law.

15.4.1 I thought I had to “fear for my life.”

One common myth is that an officer must fear for her life before 

shooting a suspect with a firearm. “I feared for my life” is like 

saying, “I did it for officer safety.” Absent the facts, it is merely 

the officer’s subjective opinion. The objective test asks whether 

the facts could lead a reasonable officer to believe that the 

suspect posed a significant threat. 

532 Use of Force
15.4.2 I thought I had to see the gun. 

More myths are that the officer must see the suspect’s gun, and 

if it turns out that the suspect does not have one, the force is 

unreasonable. Along those same lines it has been said that an 

officer cannot shoot someone in the back, or until the suspect 

actually points the gun in the officer’s direction. The law, 

however, does not require a confirmed threat. It requires facts

to believe that one exists. Waiting to see if the threat is real, or 

for the suspect to turn and point the gun, may be fatal for the 

officer. 

15.4.3 I thought “deadly force” was only reasonable when 

 responding to a felony.

The seriousness of the offense is only one factor in determining 

the governmental interest for using force. The nature of a

suspect’s resistance or flight, from even a minor offense, may 

still pose an immediate threat of serious bodily harm to the 

officer or others. (See Scott v. Harris.) 

15.4.4 I thought you always had to give a warning.

A warning adds to the objective reasonableness of a force 

option; but, the reasonable officer understands that warnings 

are not always feasible in a tense, uncertain, and rapidly 

evolving situation. Shouting, “Stop or I’ll shoot!” at an armed 

robber may simply cause the robber to turn and shoot the 

officer. 

 

15.4.5 Isn’t shooting someone more than once excessive?

Shooting a suspect is reasonable until the threat is over. The 

Supreme Court stated in Plumhoff v. Rickard, “It stands to 

reason that, if police officers are justified in firing at a suspect 

in order to end a severe threat to public safety, the officers need 

not stop shooting until the threat has ended.36 

36 Plumhoff v. Rickard, 134 S. Ct. 2012 (2014); See the Legal Division 

Reference Book.

Use of Force 533

 
15.4.6 Isn’t agency policy the law?

The Supreme Court established the law in Graham v. Connor. 

Agency policies may establish restrictions on using force more 

restrictive that what the law requires. Common policy 

restrictions include prohibitions against warning shots, 

shooting at moving vehicles, carrying back-up weapons, or 

engaging in high-speed vehicle pursuits. Following agency 

policy is certainly important. Failing to do so may result in 

administrative sanctions. Still, if an officer uses a back-up 

weapon in violation of policy, the court will only decide whether 

the force was objectively reasonable. 

15.4.7 I thought that you had to use minimal force.

Like the perfect answer, determining the minimal amount of 

force necessary to effect a seizure can only be found by 

hindsight. Officers are judged by the facts known to them at 

the time. They are responsible for selecting reasonable force 

options, not perfect ones. 

15.5 Qualified Immunity

Law suits go along with a democracy that balances law 

enforcement with individual freedoms. These are civil actions. 

The plaintiff is generally the defending officer’s former suspect.

Now the plaintiff (or former suspect) is claiming that the officer 

violated his Fourth Amendment right to be free from an 

unreasonable seizure. 

Suspects may sue; that much is true. But the officer does not 

always have to stand trial. The officer can request qualified 

immunity. 

15.5.1 The Rationale

Qualified immunity is a defense to standing trial in a civil case 

for a constitutional tort. It is raised by the officer well in 

advance of trial. The rationale behind qualified immunity is 

two-fold. First, it permits officers to perform their duties 

534 Use of Force
without fear of constantly defending themselves against 

insubstantial claims for damages. On the other hand, it allows 

the plaintiff to recover damages when any reasonable officer 

would know that the officer violated the plaintiff’s constitutional 

rights. 

15.5.2 Getting Qualified Immunity

Qualified immunity is raised by the officer. It protects the 

officer in an individual capacity, not the governmental entity 

employing her. Qualified has two elements. The officer may 

receive qualified immunity under either one. 

1. Did a Constitutional Violation Occur?

This element focuses on the facts. Based on the plaintiff’s 

version of what happened, could a reasonable officer believe 

that the force was reasonable? If no constitutional violation 

occurred, there is obviously no basis for the lawsuit, and the 

suit is dismissed. In Scott v. Harris, the nature of Mr. Harris’

flight (by means of a speeding vehicle) posed a significant 

threat of serious physical harm to others and made what Scott 

did (pushing Harris off the road) fall within the range of 

reasonableness. The facts made the force reasonable. 

2. Was the Law Clearly Established?

Th second element focuses on the law. Even if the force was 

unconstitutional, the officer may still receive qualified immunity

if the law was not clearly established at the time. The law was 

not clearly established when the officer shot Garner. Recall 

that the officer in Tennessee v. Garner relied on a state statute 

that authorized all necessary force to stop any fleeing felon. 

The Supreme Court later declared the statute unconstitutional

in so much as it allowed deadly force to seize any fleeing felon. 

But the officer had no way of knowing that. The force was 

unconstitutional, but the law was not clearly established at the 

time, and he received qualified immunity.37

37 Garner v. City of Memphis, 600 F.2d 52 (6th Cir. 1979).

Use of Force 535

 
Plumhoff v. Rickard is a rare case where the Court considered,

and granted, officers qualified immunity under both elements. 

First the Supreme Court held that the force was constitutional, 

but went on to explain that even if it was not, the law would not 

have clearly put the officers on notice that what they did was 

unconstitutional. 

Scott v. Harris left open whether shooting a fleeing motorist was

reasonable. Plumhoff allowed the Court to make that decision. 

It waded through the facts. Like Mr. Harris, Mr. Rickard 

started a high-speed pursuit when he fled from a minor traffic 

offense. Unlike Harris, he had a passenger in the car. The 

chase exceeded 100 miles per hour and lasted over five 

minutes. Rickard passed more than two dozen vehicles, several 

of which were forced to alter course. He eventually collided with 

a police car and came to a temporary standstill. But that did 

not end the chase. With his front bumper flush against a police 

car, Rickard hit the accelerator causing the car’s tires to spin. 

Officer Plumhoff fired the first three shots into the car. Rickard 

then threw the car into reverse and started to flee down the 

street. Officers then fired 12 more shots into the car. Richard 

crashed and he and his passenger died of some combination of 

gunshot wounds and injuries from the crash.

The Court applied the facts to the Graham factors. Rickard’s 

flight posed a grave threat to others. Here, as in Scott, the 

force used to stop the speeding vehicle fell within the range of 

reasonableness. All 15 shots were were fired to end that threat. 

But should the passenger make a difference? Not in Rickard’s 

case; the issue in Rickard’s case was whether the officers

violated Rickard’s Fourth Amendment rights, not the 

passenger’s.38 It was Rickard, after all, who put the passenger 

in danger. It would be perverse if his disregard for her safety 

worked to his benefit. 

The Supreme Court went on to explain that even if the officers 

38 There is some disagreement among the lower courts as to whether a 

passenger in this situation can recover under a Fourth Amendment theory. 

See Plumhoff v. Rickard, 134 S. Ct. 2012, fn. 4 (2014).

536 Use of Force

 
had violated the constitution, they would still be entitled to 

qualified immunity because the law was not clearly established. 

This additional explanation was necessary due to the lower 

courts incorrect decision to deny the officers qualified immunity 

under the premise that “the devil is in the details.” The lower 

court pointed to insignificant differences between this case and

Scott. The lower court stated that Harris, unlike Rickard, was 

fleeing at a high rate of speed when force was used; that Harris

did not have a passenger; and, that Harris was pushed off the 

road, rather than shot. Those details did not make any 

difference. And even if they had, the Court stated that the law 

at the time did not clearly establish the unconstitutionality of 

shooting a driver to end a high-speed car chase. “Clearly 

established” means that the law must be sufficiently definite so 

that any reasonable officer would have understood that he was 

violating it. In other words, the law at the time must place the 

situation confronted by the officer beyond debate.

15.5.3 Qualified Immunity Under Either Element

An officer may receive qualified immunity either because the 

force was constitutional or the law was not clearly established. 

The courts are not required to go in any particular order, either. 

The court may find, “We don’t know if the officer violated the 

constitution; however, we have reviewed the Supreme Court and 

circuit decisions and find that the law did not clearly put the 

officer on notice that the force was excessive.” In short, the 

court may opt to answer the easier of the two questions, saving 

the harder one for another day. 

The court made such a decision in Cockrell v. City of Cincinnati

where an officer shot a fleeing jaywalker with a dart-mode ECD 

without any warning. The court expressed no opinion on 

whether the force was constitutional; however, the court held 

the law was not clearly established. The court saved the harder 

question for another day. As a result, the officer was granted 

qualified immunity. 

Use of Force 537
15.5.4 Qualified Immunity: Denied

To deny the officer qualified immunity, the court must find that 

the plaintiff’s version of the facts supports both of these 

elements: (1) a constitutional violation that (2) was clearly 

established. If the officer is denied qualified immunity, the case 

goes to trial. Questions:

(a) Why Send the Case to Trial? 

In other words, why not simply find against the officer? The 

answer is simple. Denying the officer qualified immunity does 

not mean that the officer is liable for a constitutional tort. It 

means that there is a triable issue for the jury. During the 

qualified immunity analysis, the court is generally required to 

accept the plaintiff’s version of the facts as being true. If there 

is a material dispute between the plaintiff and the officer about 

what happened, the judge sends the case to trial to resolve the 

dispute. 

This seemingly unfair requirement (to accept the plaintiff’s 

story) is because qualified immunity dismisses the case. It

denies the plaintiff his day in court. The court says, “Mr. 

Plaintiff, we have looked at your version of the facts. No 

reasonable jury could find for you.” Before the court can say 

that, however, it must accept the plaintiff’s version of what 

happened as being true. The Fourth Circuit followed that rule 

in Cooper v. Sheehan. Recall that Cooper claimed that he 

merely walked out on his front porch with a shotgun to 

investigate a noise and that the officers immediately fired on 

him. The officers had a dramatically different story, but the 

Court had to accept Cooper’s. The case goes to trial.

(b) So What Happens at Trial?

At trial, the burden of proof shifts back to the plaintiff. The 

plaintiff has the burden of proving that a constitutional 

violation actually occurred. Credibility is an important issue at 

trial. Who is telling the truth, the plaintiff or the officer? Force 

science experts may also testify and breathe life into the words, 

538 Use of Force
“...tense, uncertain, and rapidly evolving...” 

• Tense: When someone’s life is threatened, the body’s

natural defense mechanisms are triggered. Hearing may 

diminish. Gunshots may sound like blanks. The sense of 

sight may be more acute, but become tunneled on the 

threat. Tunnel vision reduces peripheral vision. Blood 

may rush to the large muscle groups for the “fight or 

flight” response, which reduces fine motor skills. The 

officer may feel like she is wearing heavy gloves while 

holding her pistol. Blood pressure skyrockets and the 

body may shake.

• Uncertain: “Is that silver object the suspect is pointing at 

me a gun or cell phone?” That decision may have to be 

made on a street corner at night. 

• Rapidly evolving: That same decision may have to be 

made in a split-second. “Should I wait – to see if it’s 

actually a gun?” Waiting might be fatal. 

The bottom line: Denying an officer qualified immunity does not 

mean that the officer is liable for excessive force. It just means 

that there has to be a trial to decide. 

15.6 After the Fight

Taking a suspect into custody creates the duty to care for him. 

An officer cannot be deliberately indifferent to a suspect’s 

serious medical needs.39

These steps should be followed when a suspect is taken into 

custody:

• As soon as the suspect is handcuffed, get him off his 

stomach, and belt him inside the car in the seated 

position. In-custody deaths may result from positional 

asphyxia – i.e., death as a result of positioning the 

39 Jones v. City of Cincinnati, 507 Fed.Appx. 463 (6th Cir. 2012) citing 

Ewoiski v. City of Brunswick, 287 F.3d 492 (6th Cir. 2012).

Use of Force 539

 
suspect’s body in a way that interferes with his ability to 

breathe. 

• Monitor the suspect carefully and obtain medical 

treatment if needed. Ask the suspect if he has used 

drugs recently or suffers from any other medical 

condition. Do not assume that the suspect is “playing 

possum” and obtain medical care on his request.

• If the suspect is not breathing or there is other evidence 

that he suffers from a serious medical condition, call 

EMS, apply CPR, and provide first aid as necessary.

• Inform the detention facility’s custodians of any medical 

problems. 

540 Use of Force
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