# F EDERAL 

# L AW 

# E NFORCEMENT


# T RAINING 

# C ENTER


# G LYNCO 

# , G EORGIA



# L EGAL 

# D IVISION



# H ANDBOOK

200 8

# FLETC

L EGAL 

# D IVISION



# W EB 

# S ITE

www.fletc.gov/legal

Podcasts
THE INFORMER

Articles Training Programs

Links

Case Law Digests

Practice Exams

### Foreword

200 8

The mission of the Federal Law Enforcement Training Center (FLETC) is to serve as the federal government’s leader for and provider of world

- class law enforcement training. As a

division of the Office of Mission Integration , the L egal Divis ion (LGD) is committed to delivering the highest quality legal training to both basic and advanced law enforcement personnel. In fulfilling this mandate, LGD instructors provide training on all areas of criminal law and procedure, including

Constitutional law, authority and jurisdiction, search and seizure, use of force, self

- incrimination, courtroom evidence, court testimony, electronic law and evidence, criminal statutes, and civil liability. While a large part of the LGD training mission

focuses on newl y hired law enforcement officers, the LGD also provides training for advanced law enforcement officers and attorneys in the Continuing Legal Education Training Program (CLETP) and the Police Legal Advisor Training Program (PLATP). The LGD also provides leg al training for law enforcement instructors in the FLETC Instructor Legal Training Program (FILTP).

In this spirit, we offer our Handbook

. This edition includes materials for basic training, advanced training, and for

field use. The Legal Division Refe rence Book is a companion to

the Handbook for use with chapters 9 and 1 3

. 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 th at the

Handbook can serve law enforcement students and law

enforcement officers alike.

The Handbook includes more than twenty

- five years of diligent legal research and revision by many present and former members of the Legal Division. On average, current LGD instructors have over 17 years of law enforcement experience, either as judges, prosecuting attorneys in federal, state, and military courts, police legal advisors, counsel for lawenforcement agencies, or as federal or state law enforcement

officers. LGD instructors are currently licensed to practice law in the highest courts of 15 states, numerous state, federal, and military courts, and the United States Supreme Court. LGD instructors have published articles in a variety of professional

law enforce ment publications, such as Police Chief Magazine, The FLETC Journal, T he FBI Law Enforcement Bulletin, and one member of the LGD staff has authored a book entitled, “The

Sixth Circuit Criminal Law Handbook.” LGD instructors have made numerous legal presen tations at conferences for organizations such as the International Association of Chiefs of Police, Women in Federal Law Enforcement, National High Tech Crime Investigation Association, the Do J Community Capacity Development Office

, Florida Association of Prosecuting Attorneys

, Northern Michigan University

, National Criminal

Enforcement Association

, and at the DoD Cyber Crime Summit.

While this text provides an exceptional review of important legal concepts, you should not limit yourself to this publicatio n. An additional resource for federal, state and local law enforcement officers and agents is the LGD website:

www.fletc.gov/legal

Located there are a number of resources including articles, podcasts, links, f ederal circuit court and Supreme Court case digests, and The Federal L aw E n f orcemen t

In f ormer. The In f ormer is published monthly and includes articles and federal circuit court and Supreme Court case summaries of import to law enforcement.

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.

Bob Cauthen

Editor Program Manager Advance Legal Programs

r obert. cauthen@dhs.gov_______________ Table of Contents vii 

## Table of Contents

(Click ing on the Chapter will take you directly t o that material)



## Chapter One

– Authority and Jurisdiction of Federal Land
Management Agencies

.... ............................... 

## 1

Chapter Two

– Conspiracy and Partie s

............. 

## 33

Chapter Three

– Constitutional Law

................. 

## 55

Chapter Four

– Courtroom Evidence

................ 

## 93

Ch apter Five

– Courtroom Testimony

............ 

## 127

Chapter Six

– Criminal Law

............................ 

## 1 43

Subpart A

– Assault

.................................... 

## 147

Subpart B

– Bribery

.................................... 

## 151

Subpart C

– Federal Firearms Violations

.... 

## 155

Subpart D

– Federal Drug Offen s es

... ... ...... . 

## 167

Subpart E

– The En trapment Defense

...... .. 

## 1 71

Subpart F

– False Statements

.................... 

## 177

Subpart G

– Theft

...................................... 

## 181
Subpart H

– Obstruction of Justice

........... 

## 189

Subpart I

– Federal Fraud Statutes

............ 

## 201

Chapter Seven

– Electronic Law and Evidence

..................... 

## 217

Chapter Eight

– Federal Court Procedures

.......................... 

## 24 9_______________ Table Of Contents viii 

## Chapter Nine

– Fourth Amendment

............... 

## 301

Chapter Ten

–
Government Workplace Searches...

...... .. ... 

## 411

Chapter Eleven

– Officer Liability......

... . ........ 

## 4 27

Cha pter Twelve

– Searching and Seizing Computers

... . ......... 

## 4 55

Chapter T hirteen

– Fifth and Sixth Amendments.........

....... ..... 

## 477

Chapter Fourteen

– Use of Force

.. ......... . ....... 

## 50 7

Index

Contributors_______________ Authority and Jurisdiction of Federal Land Management Agencies 1 

## Chapter One

Authority and Jurisdiction of

Federal Land Management Agencies

I. I NTRODUCTION

................................ ................................ ..... 2

II. S OURCES OF A UTHORI TY AND J URISDICTION

............................. 2

III. T YPES OF J URISDICTION

................................ ........................ 4

IV. T ERRITORIAL J URISDICTION

................................ ................... 4

A. Jurisdiction Over a Particular Geographic Area

..................... 4

1. Exclusive Jurisdiction

................................ ...................... 5

2. Concurrent Jurisdiction

................................ ................... 5

3. Proprietary Jurisdiction

................................ ................... 5

B. Special Maritime and Territorial Jurisdiction

........................ 6

C. Agency Specific Territorial Jurisdiction

................................ . 8

V. S UBJECT M ATTER J URISDICTION

................................ ........... 10

A. Specific Statutory Subject Ma tter Jurisdiction

.................... 10

1. National Park Service

................................ ..................... 10

2. USDA Forest Service

................................ ...................... 11

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

......................... 11

4. Tennessee Valley Authority (TVA)

................................ ... 11

5. Bureau of Land Management (BL M)

............................... 11

6. National Marine Fisheries

................................ .............. 11

7. United States Park Police

................................ ............... 12

8. DOD Conservation Officers or Rangers

.......................... 12

9. Bureau of Reclamation Law Enforcement Officers

.......... 12

B. Cross Designation of Of ficers

................................ .............. 12

C. Jurisdiction Over State Offenses

................................ ......... 13

D. Assimilative Crimes Act

- 18 U.S.C. § 13

............................. 13

E. State Peace Officer Authority

................................ ............... 13

F. Cross

- Designation as State or Local Officer

......................... 14

G. Citizen ’s Arrest or Detention Authority

................................ 14

VI. T HE C ODE O F F EDERAL R EGULATIONS (CFR)

.......................... 14

A. Enabling Legislation

................................ ............................ 14

B. Examples

................................ ................................ ............ 16

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

................................ ................. 16

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

................................ ... 18

3. 36 C.F.R. 2.3 Fishing

................................ .................... 20_______________ Authority and Jurisdiction of Federal Land Management Agencies 2 4. 36 C.F.R. 2.31 Trespassing, Tampering a nd Vandalism 23

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

............................... 23

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

............................. 24

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

............................... 26

VII. S IGNIFICANT S TATUTORY P ROVISIONS

................................ .... 26

A. Lacey Act

................................ ................................ ............ 26

B. Endangered Species Act

................................ ...................... 27

C. Marine Mammal Protection Act (MMPA) of 1972

.................. 27

D. Archaeological Resources Protection Act of 1979

................. 28

E. Bald Eagle Protection Act of 1940

................................ ....... 28

VIII. A DMINI STRATIVE I NSPECTION A UTHORITY

............................... 29 36 C.F.R. 3.5 Inspections

................................ .............. 29



## *****

I. Introduction

This course examines the sources an d scope of the authority and jurisdiction of federal land management law enforcement agencies. It includes federal regulations and administrative inspection authority and will address both territorial and subject matter jurisdiction. The course also

ex amines jurisdictional issues related to selected offenses that involve Federal Land Management Agencies.

II. Sources of Authority and Jurisdiction

The basic source of all federal law is the United States Constitution. While the Fourth Amendment and many other constitutional provisions affect law enforcement, there are also some less well known provisions that impact the jurisdiction of

federal agencies. The Tenth Amendment reserves the power not expressly given to the federal government in the Constitution to the States or to the people. In section 5 of Article I exclusive federal jurisdiction is established over forts and many other

federal f acilities. 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._______________ Authority and Jurisdiction of Federal Land Management Agencies 3 The primary source of authority and jurisdiction for federal land management agencies is f ederal statutes. The easiest method to find federal statutes is using the U.S. Code citation to the statute. For example, section 3 of Title 16 of the U.S. Code is referred to 16 U.S.C. § 3. If the law passed by Congress changes many individual statutor y provisions, the easiest way to find the full text of the law is the Public Law version. For example, the USA PATRIOT Act amended many federal statutes. It would be a significant task to find each one individually. P.L. 107

- 56 contains the full text of the USA

PATRIOT Act.

Some federal statutes provide authority for the appropriate agency to adopt regulations to implement their statutory authority. This is called “enabling legislation” because it authorizes the agency to adopt regulations for those areas specified in the statute. Without such enabling legislation, the agency would not have authority to adopt regulations. Some of these regulations can be criminal in

nature and enforced as misdemeanors in U.S. courts if the enabling legislation provides such authority.

During the process of adopting regulations, proposed regulations and the final regulation are published in the Federal

R egister.

Regulations that are adopted under the authority of the appropriate enabling legislation are published annually in the Code of Federal Regulations (C.F.R.). Citation to the C.F.R. is similar to the U.S. Code. For example, a regulation governing hitchhiking on any National Park Service property is found at

36 C.F.R. 4.31.

Occasionally, other sources of authority, suc h as treaties, may apply, particularly in relation to Indian lands and jurisdiction over coastal waters._______________ Authority and Jurisdiction of Federal Land Management Agencies 4 III. Types of Jurisdiction

There are two types of jurisdiction that govern the authority of law enfo rcement agencies : T erritorial 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 pa rticular law enforcement agency has authority. Some agencies have general subject matter jurisdiction over all federal criminal offenses, while others have limited subject matter jurisdiction over certain offenses only.

IV. Territorial Jurisdiction

The concept of territorial jurisdiction actually has three

compon ents 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

t hird type of territorial jurisdiction relates to geographic limitations placed upon an agency’s law enforcement officers by the enabling legislation or agency regulations.

A. Jurisdiction Over a Particular Geographic Area

There are three general methods through which the federal government may acquire jurisdiction over a physical area. The state may grant land within the jurisdiction of the state to the federal government. Whether th e state reserves any jurisdiction also within that land is determined by the grant from the state. A second method is for the federal government to assume exclusive jurisdiction over land purchased by the federal government with the consent of the state l egislature. Since 1940, neither exclusive nor concurrent jurisdiction is

automatic ; the federal government has to expressly accept
exclusive or concurrent jurisdiction. The third method is for the federal government to simply buy or condemn land in a sta te for a federal purpose without any involvement of the state._______________ Authority and Jurisdiction of Federal Land Management Agencies 5 The method of acquisition of the property determines the type of federal jurisdiction that applies to that particular parcel of land. The three types of federal jurisdiction are exclusive,

co ncurrent, and proprietary.

1. Exclusive Jurisdiction

In areas of exclusive jurisdiction, only the federal government has law enforcement authority. This occurs when the federal government has received, through one of the

met hods 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

se rve process, such as arrest warrants, resulting from activities that occurred outside the area of exclusive jurisdiction.

2. Concurrent Jurisdiction

Concurrent jurisdiction exists when both the state and federal governm ents 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 pro secute those who violate their respective

laws.

3. Proprietary Jurisdiction

Proprietary jurisdiction is primarily state jurisdiction, with exceptions for federal laws of general application and

federal laws and re gulations 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 authori ty 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_______________ Authority and Jurisdiction of Federal Land Management Agencies 6 state. However, un der the Supremacy and Property Clauses of the United States Constitution, you may also enforce federal statutes or regulations enacted to protect these proprietary

areas.

The application of a specific federal statute in proprietary jurisdiction generally falls into one of two categories :

(a) Statutes of General Application

Many federal statutes are applicable in any location where the United States has jurisdiction. Examples of these types of statutes include, 18 U.S.C. § 3 (Accessory After the Fact); 18 U.S.C. § 201 (Bribery of Public Officials and Witnesses); 18 U.S.C. § 371 (Conspiracy); and 18 U.S.C. § 641 (Embezzlement and Theft of Public Money, Property or Records).

(b) Statutes Applicable to Designated Lands

There are also many federal statutes and C.F.R. provisions whose application is limited to designated lands only. Examples of these statutes include, but are not limited to, 18 U.S.C. § 41 (Hunting, Fishing, Trapping; Disturbance or Injury on Wildlife Refuges); 18 U.S.C. § 1852 (Cutting or Removing or Transporting Timber on Public Lands of United States); 18 U.S.C. § 1853 (Cutting or Injuring Trees on Land

Rese rved or Purchased by the United States or Upon Any Indian Reservation); and 18 U.S.C. § 1854 (Trees Boxed for Pitch or Turpentine on Land Belonging to the United States). Some 36 C.F.R. provisions apply to all lands within a park, regardless of

land owner ship. These violations include 36 C.F.R. 2.31 (Trespassing); 36 C.F.R. 4.31 (Hitchhiking); and 36 C.F.R. 4.23 (Operating a Motor Vehicle Under the Influence of Alcohol or Drugs).

B. Special Maritime and Territorial Jurisdiction

Some federal criminal statutes apply only in the area

known as the “special maritime and territorial jurisdiction” of_______________ Authority and Jurisdiction of Federal Land Management Agencies 7 the United States (SMTJ). 18 U.S.C. § 7 defines these places. Several descriptive categories are included within the definition, the most significant being § 7(3). This section provides:

Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or ot her needful building.

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

the SMTJ is where the United States has either exclusive or concurrent jurisdiction over that area. Other places designated

in the statute include:

**•** High Seas and Other Wate rs: any water not within

the boundaries of a state

**•** Vessels owned in whole or part by the U.S., U.S. citizens, U.S. corporations, or any state, territory, district or possession of the U.S. when the vessel is

in such waters

**•** Includes aircraft owned in whol e or in part by the U.S., U.S. citizens, U.S corporations, or any state, territory, district or possession of the U.S. when the aircraft is flying over these waters

**•** Waters of the Great Lakes and the St. Lawrence

River

**•** Applies to vessels registered, licen sed or enrolled

under U.S. laws

**•** Lands acquired for forts, arsenals & docks_______________ Authority and Jurisdiction of Federal Land Management Agencies 8 **•** Islands, rocks or keys containing guano if designated by the President

**•** Spacecraft while in flight

**•** (And other categories)

If offenses specify that the crime applies to the SMTJ a nd the crime was not committed in the special maritime or territorial jurisdiction of the United States, that offense is not

triable in federal court.

C. Agency Specific Territorial Jurisdiction

The third category of territorial jurisdiction is agency specific territorial jurisdiction. For example:

**•** The National Park Service has jurisdiction over offenses that occur within the National Park sy stem or the arrest of persons fleeing from that system. 16 U.S.C. § 1a

- 6.

**•** The U SDA Forest Service has jurisdiction over

offenses that occur within the National Forest System or which affect the administration of th e National Forest System. 16 U.S.C. §§ 559, 559c,

559d.

**•** The Bureau of Land Management does not have territorial limits, but the offense must relate to the public lands or their resources. 43 U.S.C. § 1733(c)

.

**•** The Bureau of Reclamation has jurisdiction over offenses that occur within a Reclamation project or on Reclamation lands. 43 U.S.C. § 373b

.

**•** The United States Park Police has jurisdiction over offenses that occur on or within roads, parks, parkways, and other federal reservations in the_______________ Authority and Jurisdiction of Federal Land Management Agencies 9 environs of the District of Columbia. P.L. 447, Act of March 17, 1948; District of Columbia Code 5

- 206. The envir ons of the District of Columbia are defined as including Arlington, Fairfax. Loudoun, Prince William, and Stafford Counties and the City of Alexandria in Virginia and Prince George’s, Charles, Anne Arundel, and Montgomery Counties in Maryland. P.L. 447, A ct of March 17, 1948;

District of Columbia Code 5

- 208. The United States Park Police also has jurisdiction in New York City at the Gateway National Recreation Area (GNRA) as well as at the Statue of Liberty/Ellis

Island National Historic Site and in San F rancisco

at the Golden Gate National Recreation Area. Cal. Penal Code § 830.8; NY CLS CPL § 2.15(9).

**•** The Tennessee Valley Authority (TVA) has jurisdiction over offenses that occur on any lands or facilities owned or leased by the corporation or within such adjoining areas in the vicinity of such lands or facilities as may be determined by the TVA

B oard of Directors under statutory guidelines and on other lands or facilities in certain specified situations. 16 U.S.C. § 831c ( 3 ) ( c)

.

**•** The United States Fish and Wildlife Service and

National Marine Fisheries Service do not h ave 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. §§ 472b, 668dd ( g), 3375b

.

**•** Territorial jurisdiction of Department of Defense Land Management Enforcement Officers is determined by DOD directives or other regulations._______________ Authority and Jurisdiction of Federal Land Management Agencies 10 V. Subject Matter Jurisdiction

Subject matter jurisdiction relates to the specific offenses over which the p articular 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.

A. Specific Statutory Subject Ma tter Jurisdiction

Some agencies have full law enforcement power over all offenses, but only within the limited territorial jurisdiction of that agency. For example, the National Park Service has authority over all federal offenses committed in their presence or all federal felonies they have reason to believe were committed, as long as those offenses were committed in the National Park System. Other agencies, however, have specific

st atutory or regulatory authority for certain specified offenses. For example, the National Marine Fisheries Service has approximately 37 different federal laws which it enforces.

1. National Park Service

The a rrest authority for members of the National Park

Service includes any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony, provided such arrests occur within that system or the person to be arrested is fleeing from there to avoid arrest. 16 U.S.C. § 1a

- 6(b )( 1). In addition, the National

Park Service can conduct investigations of offenses against the

United Stat es committed in that system in the absence of investigation thereof by any other Federal law enforcement agency having investigative jurisdiction over the offense committed or with the concurrence of such other agency. 16 U.S.C. § 1a

- 6(b)(3)

._______________ Authority and Jurisdiction of Federal Land Management Agencies 11 2. USDA Forest Service

The arrest authority fo r members of the Forest Service

includes the violation of the laws and regulations relating to national forests and certain specific statutes. 16 U.S.C. § 559

.

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

USFWS agents, refuge officers and wil dlife inspectors have authority to enforce a number of wildlife

- related statutes.

S ee 16 U.S.C. § 668dd(g) for example. The extent of law enforcement authority is dependent upon the specific resource protection statute.

4. Tennessee Valley Authority (TVA)

TVA officers have, within their territorial jurisdiction, authority to make a rrests without warrant for any offense against the United States committed in the officer’s presence, or for any felony cognizable under the laws of the United States if the officer has probable cause to believe that the person to be

arrested has committed or is committing such a felony. 16 U.S.C. § 831c

- 3(b)(2)(A)

. TVA officers normally use state p eace officer authority to make arrests.

5. Bureau of Land Management (BLM)

BLM officers have the authority to enforce federal laws and regulations relating to the public lands or their resources and the power to make arrests with out warrant or process for a misdemeanor with reasonable grounds to believe is being committed in the officer’s presence, or for a felony if with reasonable grounds to believe this person has committed or is committing such felony. 43 U.S.C. §§ 1733(c)(1 ) and (2)

.

6. National Marine Fisheries

The arrest authority for Nat ional Marine Fisheries (NMFS) is dependent upon the specific statute that is being enforced._______________ Authority and Jurisdiction of Federal Land Management Agencies 12 7. United States Park Police

Officers of the United States Park Police have the same

law enforcement authority under 16 U.S.C. § 1a

- 6 as National Park Rangers. Additional arrest authority is provided in specific law related to the Park Police juris diction in the District of Columbia, New York City, and San Francisco. D.C. Code 5

- 201to 5

- 303, California Penal Code 830.8, and New York

Criminal Procedure Law 2.15(9).

8. DOD Conservation Officers or Rangers

The specific arrest authority for DOD land management enforcement officers is dependent upon DOD Directives and other regulations.

9. Bureau of Reclamation Law Enforcement Officers

B ureau of Reclamation law enforcement officers can arrest for any offense against the United States committed in their presence or any federal felony, if the arrest occurs within a Reclamation project or on Reclamation lands or the person to be arrest is fleeing from such lands to avoid arrest. 43 U.S .C. §

373b

.

B. Cross Designation of Officers

In the land management enfo rcement context, because of the overlap of functions among the various agencies, officers will frequently be cross

- sworn

. For example, TVA officers may

also be commissioned USFWS officers or Game Wardens with the Department of the Interior. Title 16 U.S.C. § 559g permits other federal agency personnel to enforce forest service laws and permits forest service personnel to assist other federal agencies pursuant to appropriate agreements._______________ Authority and Jurisdiction of Federal Land Management Agencies 13 C. Jurisdiction Over State Offenses

Another source of authority for l and management officers

is state law , particularly for those officers oper ating primarily in areas of proprietary jurisdiction. Even in areas of exclusive or concurrent federal jurisdiction, state law may be useful where no federal law governs the particular conduct involved.

D. Assimilative Crimes Act

- 18 U.S.C. § 13 1

The Assimilative Crimes Act applies state law to conduct occurring on federal lands. Three criteria must be met:

**•** the United States has exclusive or concurrent jurisdiction

**•** there is no federal law covering the conduct, and

**•** there is an applicable state law.

Under the Act , t he state law is adopted and used to prosecute the defendant in federal court as if it were a federal

offense. The Act does not apply when there is a federal law that covers the conduct. The Act does not apply to areas of proprietary federal jurisdictio n.

E. State Peace Officer Authority

In some states, federal law enforcement officers of specified federal agencies have limited or complete state peace

officer arrest authority. For example, in Iowa, all federal law enforcement officers with federal arrest authority and authorized to carry a firearm also have state arrest authority over indictable state offenses. Iowa Code § 804.7A. In some

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Authority and Jurisdiction of Federal Land Management Agencies 14 states, the offense must be committed in the officer’s presen ce. In others, a state or local agency must request assistance from

the federal office r. Every state is different. You must know the law of the particular state in which you are working to

determine whether you have state peace officer status.

F. Cross

- Designation as State or Local Officer

You may acquire state jurisdiction by being deputized as a deputy sheriff or other state or local officer under t he appropriate state law. A gency policies will govern your ability to be deputized as a state of ficer.

G. Citizen’s Arrest or Detention Authority

The least preferred method of having state jurisdiction to arrest or detain a suspect may come from citizen’s arrest or detention authority within that state. Some states have citizen's arrest authority which allows an arrest by any person for a felony. Some states require the crime to be committed in the person’s presence while other states do not. Some states only permit a limited detention rather than an arrest. State law may limit or prohibit citizen’s arrests for misdemeanors. In addition, offenses are covered may differ widely. Some states may allow a citizen’s arrest for a breach of the peace but may differ great ly on what constitutes a “breach of the peace”. You must know the law of the particular state in which you a re working to determine whether you have citizen’s arrest or detention authority. Arresting under citizen’s arrest powers is a high

- risk procedur e and should be used as a last resort.

VI. The Code of Federal Regulations (CFR)

A. Enabling Legislation

When enabling legislation exists authorizing t he particular federal agency to adopt regulations, most agencies adopt detailed regulations to implement their statutory authority. The enabling statutes often permit considerable_______________ Authority and Jurisdiction of Federal Land Management Agencies 15 flexibility in rule making. Final rules currently in force are published a nnually in the Code of Federal Regulations. M any of the violations enforced by land management law enforcement officers come from the regulations.

For example, the Secretary of the Interior has the following statutory rulemaking authority for public land s:

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 an y such regulation which is lawfully issued pursuant to this Act shall be fined no more than $1,000 or imprisoned no
more than twelve months, or both. 42 U.S.C. § 1733(a)

.

For the National Park Service, the Secretary of Interior has the following statutor y rulemaking authority:

The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the

National Park Service, and any violation of any of the rules and regulations authorized by this section and sections 1, 2, and 4 of this title shall be punished by a fine of not more than $500 or imprisonment for not exceeding six months, or both, and be adjudged to pay a ll costs of the proceeding. 16 U.S.C. § 3.

Applying the broad rule making authority permitted by enabling legislation, the federal regulations frequently expand the authority of these agencies into many areas not specifically addressed in the statutory a uthority. Using rule making_______________ Authority and Jurisdiction of Federal Land Management Agencies 16 authority is another method of applying state law in the federal environment in addition to those laws prosecuted under the Assimilative Crimes Act. Particularly in such areas as motor vehicle laws, hunting and fishing laws, an d vessel operation and safety laws, agencies often adopt as federal regulations those state laws that do not conflict with federal law. The agency’s federal enabling legislation sets the punishment for violation, regardless of the punishment under the sta te law.

B. Examples

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

Resources

(a) Except as otherwise provided in this chapter, the following is prohibited: ( 1) Possessing, destroying, injuring, defacing, removing, digging, or disturbing from its

natural state: (i) Living or dead wildlife or fish, or the parts or products thereof, such as antlers or nests. (ii) Plants or the parts or products thereof. (iii) Non fossilized and fossilized paleontological specimens, cultural or archeological resources, or the parts thereof. (iv) A mineral resource or cave formation or the parts thereof. (2) Introducing wildlife, fish or plants, including their reproductive bodies, i nto a park area ecosystem. (3) Tossing, throwing or rolling rocks or other items inside caves or caverns, into valleys, canyons, or caverns, down hillsides or mountainsides, or into thermal features. (4) Using or possessing wood gathered from within the pa rk area: Provided, however, that the superintendent may designate areas where dead wood on the ground may be_______________ Authority and Jurisdiction of Federal Land Management Agencies 17 collected for use as fuel for campfires within the park area. (5) Walking on, climbing, entering, ascending, descending, or traversing an archeolog ical or cultural resource, monument, or statue, except in designated areas and under conditions established by the superintendent. (6) Possessing, destroying, injuring, defacing, removing, digging, or disturbing a structure or its furnishing or fixtures, o r other cultural or archeological resources. (7) Possessing or using a mineral or metal detector, magnetometer, side scan sonar, other metal detecting device, or subbottom profiler. This paragraph does not apply to: (i) A device broken down and stored or

p acked to prevent its use while in park areas. (ii) Electronic equipment used primarily for the navigation and safe operation of boats

and aircraft. (iii) Mineral or metal detectors, magnetometers, or subbottom profilers used for authorized scientific, mini ng, or administrative activities. (b) The superintendent may restrict hiking or pedestrian use to a designated trail or walkway system pursuant to §§ 1.5 and 1.7. Leaving a trail or walkway to shortcut between portions of the same trail or walkway, or to s hortcut to an adjacent trail or walkway in violation of designated restrictions is prohibited. (c)(1) The superintendent may designate certain fruits, berries, nuts, or unoccupied seashells which may be gathered by hand for personal use or consumption upon a written determination that the gathering or consumption will not adversely affect park_______________ Authority and Jurisdiction of Federal Land Management Agencies 18 wildlife, the reproductive potential of a plant species, or otherwise adversely affect park

resources. (2) The superintendent may: (i) Limit the size and quantity of the natural products that may be gathered or possessed for this purpose; or (ii) Limit the location where natural products may be gathered; or (iii) Restrict the possession and consumption of natural products to the park area. (3) The following are prohibi ted: (i) Gathering or possessing undesignated natural products. (ii) Gathering or possessing natural products in violation of the size or quantity limits designated by the superintendent. (iii) Unauthorized removal of natural products from the park area. ( iv) Gathering natural products outside of designated areas. (v) Sale or commercial use of natural products. (d) This section shall not be construed as authorizing the taking, use or possession of fish, wildlife or plants for ceremonial or religious purpose s, except where specifically authorized by Federal statutory law, treaty rights, or in accordance with § 2.2 or § 2.3.

(These are typical preservation and resource protection rules. These rules give the Park Superintendent

considerable discretion in some areas.)

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

(a) The following are prohibited: ( 1) The taking of wildlife, except by authorized hunting and trapping activities conducted in_______________ Authority and Jurisdiction of Federal Land Management Agencies 19 accordance with paragraph (b) of this section. (2) The feeding, touching, teasing, frightening or intentional disturbing of wildlife nesting, breeding or other act ivities. (3) Possessing unlawfully taken wildlife or portions thereof. (b) Hunting and trapping. (1) Hunting shall be allowed in park areas where such activity is specifically mandated by Federal statutory law. (2) Hunting may be allowed in park areas

wher e such activity is specifically authorized as a discretionary activity under Federal statutory law if the superintendent determines that such activity is consistent with public safety and enjoyment, and sound resource management principles. Such hunting sh all be allowed pursuant to special regulations. (3) Trapping shall be allowed in park areas where such activity is specifically mandated by Federal statutory law. (4) Where hunting or trapping or both are authorized, such activities shall be conducted

in a ccordance with Federal law and the laws

of the State within whose exterior boundaries a park area or a portion thereof is located.

Non

- conflicting State laws are adopted as a part of these regulations. (c) Except in emergencies or in areas under

the exclus ive jurisdiction of the United States, the superintendent shall consult with appropriate State agencies before invoking the authority of § 1.5 for the purpose of restricting hunting and trapping or closing park areas to the taking of wildlife where

such ac tivities are mandated or authorized by Federal statutory law._______________ Authority and Jurisdiction of Federal Land Management Agencies 20 (d) The superintendent may establish conditions and procedures for transporting lawfully taken wildlife through the park area. Violation of these conditions and procedures is prohibited. (e) Th e Superintendent may designate all or portions of a park area as closed to the viewing of wildlife with an artificial light. Use of an artificial light for purposes of viewing wildlife in closed areas is prohibited. (f) Authorized persons may check hunting and trapping licenses and permits; inspect weapons, traps and hunting and trapping gear for compliance with equipment restrictions; and inspect wildlife that has been taken for compliance with species, size and other taking restrictions. (g) The regulatio ns contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United

States.

(This regulation is typical of hunting rules, but also provides authority to the Park Superintendent with discretion in several of the rules. In section (4) it also adopts non

- conflicting state law as federal rules.)

3. 36 C.F.R. 2.3 Fishing

(a) Except in designated areas or as provided in this section, fishing shall be in accordance with the laws and regulations of the State within whose exterior boundaries a park area or portion thereof is locate d. Non

- conflicting State laws are adopted as a part of these regulations. (b) State fishing licenses are not required in Big Bend, Crater Lake, Denali, Glacier, Isle_______________ Authority and Jurisdiction of Federal Land Management Agencies 21 Royale (inland waters only), Mammoth Cave, Mount Rainer, Olympic and Yellowstone

National Parks. (c) Except in emergencies or in areas under the exclusive jurisdiction of the United States, the superintendent shall consult with appropriate State agencies before invoking the authority of § 1.5 for the purpose of restricting or closing park areas to the taking

of fish. (d) The following are prohibited: (1) Fishing in fresh waters in any manner other than by hook and line, with the rod or line being closely attended. (2) Possessing or using as bait for fishing in fresh waters, live or dead minnows or other bait fish, amphibians, non

- preserved fish eggs or fish roe, except in designated waters. Waters which may be so designated shall be

limited to those where non

- native species are already established, scientific data indicate

that the introduction o f additional numbers or types of non

- native species would not impact populations of native species adversely, and park management plans do

not call for elimination of non

- native species. (3) Chumming or placing preserved or fresh fish eggs, fish roe, food, fish parts, chemicals, or other foreign substances in fresh waters for the purpose of feeding or attracting fish in order that they may be taken. (4) Commercial fishing, except where specifically authorized by Federal statutory

law. (5) Fishing by the use of drugs, poisons, explosives, or electricity. (6) Digging for bait, except in privately owned

lands._______________ Authority and Jurisdiction of Federal Land Management Agencies 22 (7) Failing to return carefully and immediately to the water from which it was

taken a fish that does not meet size or species restrictions or that the person chooses not to keep. Fish so released shall not be included in the catch or possession limit: Provided, t hat at the time of catching the person did not possess the legal limit of

fish. (8) Fishing from motor road bridges, from or

within 200 feet of a public raft or float designated for water sports, or within the limits of locations designated as swimming beaches, surfing areas, or public boat docks, except in designated areas. (e) Except as otherwise designated, fishing with a net, spear, or weapon in the salt waters of park areas shall be in accordance

with State law. (f) Authorized persons may check fishing licenses and permits; inspect creels, tackle and fishing gear for compliance with equipment restrictions; and inspect fish that

have been taken for compliance with species, size and other taking restrictions. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United

States

.

(This particular regulation is typical of fishing rules, but also provides an example of two specific type provisions. One is section (c) which gives the Park Superintendent authority to close certain areas after complying with the

conditions in the ru le. The second is (f) which authorizes inspections for compliance with size and creel limits and other restrictions.)_______________ Authority and Jurisdiction of Federal Land Management Agencies 23 4. 36 C.F.R. 2.31 Trespassing, Tampering and Vandalism

(a) The following are prohibited: (1) Trespassing. Trespassing, entering or remaining in or upon property or re al property not open to the public, except with the express invitation or consent of the person having lawful control of the property or real property. (2) Tampering. Tampering or attempting to tamper with property or real property, or moving, manipulating or setting in motion any of the parts thereof, except when such property is under one's lawful control or possession. (3) Vandalism. Destroying, injuring, defacing, or damaging property or real property. (b) The regulations contained in this section apply , regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United

States.

(These are typical regulations related to protection of property.)

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

(a) A person commits disorderly conduct when, with intent to cause public alarm, nuisance, j eopardy or violence, or knowingly or recklessly creating a risk thereof, such person commits any of the following prohibited acts: (1) Engages in fighting or threatening, or in

violent behavior. (2) Uses language, an utterance, or gesture, or engages in a display or act that is obscene,_______________ Authority and Jurisdiction of Federal Land Management Agencies 24 physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace. (3) Makes noise that is unreasonable, considering the nature and purpose of the

actor's con duct, location, time of day or night, and other factors that would govern the conduct of a reasonably prudent person

under the circumstances. (4) Creates or maintains a hazardous or physically offensive condition. (b) The regulations contained in this sect ion apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United

States.

(These regulations are typical of land management rules governing disorderly conduct.)

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

The following are prohibited: (a) Operating a vessel, o r knowingly allowing another person to operate a vessel, in a reckless or negligent manner, or in a manner so as to endanger or be likely to endanger a
person or property. (b) Operating a vessel when under the

influence of alcohol or controlled substance

t o a degree that may endanger oneself or another person or damage property or park

resources. (c) Failing to observe restrictions established by a regulatory marker. (d) Operating a vessel in excess of 5 mph or creating a wake: (1) In areas so designated; o r_______________ Authority and Jurisdiction of Federal Land Management Agencies 25 (2) Within 100 feet of a diver's marker,

downed water skier or swimmer. (e) Operating a vessel not propelled by hand within 500 feet of a location designated as a swimming beach. This prohibition does not apply in locations such as rivers, channels,

or narrow coves where passage is restricted

to less than 500 feet. In such restrictive locations, the operation of a vessel in excess of 5 mph or creating a wake is prohibited. (f) Allowing a person to ride on the gunwales, transom, or on the decking over the bow of a vessel propelled by machinery, operating in excess of 5 mph; Provided, however, That this provision shall not apply under the following

circumstances: (1) When that portion of the vessel was designed and constructed for the purpose of carrying pa ssengers safely at all speeds, (2) When the vessel is being maneuvered for anchoring, mooring or casting off moorings. (g) Attaching a vessel to or interfering with a marker, navigation buoy or other navigational

aid. (h) Using trailers to launch or recove r vessels, except at designated launching sites. (i) Launching a vessel propelled by machinery at other than designated launch sites. (j) Operating a vessel propelled by machinery on waters not directly accessible by road. (k) Launching or operating airboa ts. (l) Operating a vessel in excess of designated size, length or width restrictions.

(These are typical of the types of regulations that are adopted for regulation of boating activities.)_______________ Authority and Jurisdiction of Federal Land Management Agencies 26 7. 36 C.F.R. 4.2 State Law Applicable

(a) Unless specifically addressed by regulations in this chapter, traffic and the

use of vehicles within a park area are governed by State law. State law that is now or may later be in effect is adopted and made a part of the regulations in this part. (b) Violating a provision of State law is prohibited.

(This is an example of how state law can be incorpora ted by reference into federal regulations)

VII. Significant Statutory Provisions

Land management agencies often have common interests in enforcing laws that may be under the jurisdiction of a
part icular land management agency. The focus of this discussion is what agencies have jurisdiction and how law enforcement officers from other agencies may acquire jurisdiction over the selected laws discussed.

A. Lacey Act

The Lacey Act makes it illegal to trade in fish, wildlife, or plants taken in violation of any U.S. or Indian tribal law, treaty, or regulation as well as violation of forei gn 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 Ac t, or any activity involving the harvest of highly migratory species. 16

U.S.C. §§ 3371

- 3378. While the U.S. Fish and Wildlife Service tends to be predominant agency involved in Lacey Act cases, the Act is administered by the Departments of Interior, Com merce and Agriculture through USFWS, NMFS, or the Animal and Plant Health Inspection Service. Any of the three agencies may, by agreement, use the personnel, services and facilities of any_______________ Authority and Jurisdiction of Federal Land Management Agencies 27 other federal agency or any state agency in the enforcement of

the Lacey Act. ( 16 U.S.C. § 3375(a) )

.

B. Endangered Species Act

The National Marine Fisheries Service ( NMFS) and the U.S. Fish and Wildlife Service ( USFWS) share primary responsibility for implementing the Endangered Species Act. Generally, USFWS manages land and freshwater species, while the National Marine Fisheries Service manages marine species,

i ncluding anadromous salmon. The Act provides for the conservation of species that are endangered or threatened with extinction throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend. The listing of an endangered species generally protects the species under federal law, thus making it illegal to “take” (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect) a listed species. 16 U.S.C. §§ 1531

– 1543. The primary agencies for e nforcement of the Endangered Species Act are the Department of Interior (through the USFWS) and, for marine species, the Department of Commerce (through the NMFS). For some plant importation/exportation issues the Department of Agriculture is responsible. The Coast Guard also has enforcement authority. In addition, the appropriate lead agency can, by agreement, use the personnel, services and facilities of any other federal agency or any state agency in the enforcement of the Endangered Species Act. (16 U.S.C. § 1540(e))

.

C. Marine Mammal Protection Act (MMPA) of 1972

The MMPA prohibi ts, with certain exceptions, the take of marine mammals in U.S. waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine mammal products into the U.S. 16 U.S.C. § 1377. The Departments of the Interior and Commerce ar e responsible for different aspects of this law. The appropriate lead agency may, by agreement, use the personnel, services and facilities of any_______________ Authority and Jurisdiction of Federal Land Management Agencies 28 other federal agency or any state agency in the enforcement of the Marine Mammal Protection Act. (16 U.S.C. §1377(a))

.

D. Archaeological Resources Protection Act of 1979

The Archaeological Resources Protection Act of 1979 (ARPA) protects archaeological resources and facilitates cooperation and the exchange of information between agencies regarding these resources. Civil and criminal penalties are possible for the damage and excavation of archaeological resources. Under the statute, the archaeological resources recovered and any instruments used to commit the violations may be forfeited. The ARPA also provides restrictions against trafficking in illegally ob tained artifacts. 16 U.S.C. §§ 470aa et seq. Each agency having archaeological resources on public lands under its jurisdiction has authority over those particular lands, but the authority may be delegated to the Secretary of the Interior. (16 U.S.C. § 470bb(2)).

E. Bald Eagle Protection Act of 1940

This law protects the bald eagle (the national emblem) and the golden eagle by prohibiting, except under certain specified conditions, the taking, possession and commerce of such birds. The 1972 amendments increased penalties for violating provisions of the Act or implementing regulations and strengthened other enforcement measures. Rewards are provided for information leading to arrest and conviction for violation of the Act. 16 U.S.C. §§ 668

- 668d. The bald eagle is actually protected by three acts of Congress: the Bald and Golden Eagle Pr otection Act (BGEPA)( 16 U.S.C. 668 ), the Migratory Bird Treaty Act of 1918 (MBTA)( 16 U.S.C. §§ 703

- 711 ), and the Endangered Species Act of 1973 (ESA)( 16 U.S.C. §§ 1531

- 1543 ). The golden eagle is likewise covered by the BGEPA and the MBTA, but it is not lis ted as an endangered or threatened species. The Department of the Interior has the primary responsibility for enforcement of this act. Enforcement authority may be delegated also to state fish and wildlife

authorities. 16 U.S.C. § 668b._______________ Authority and Jurisdiction of Federal Land Management Agencies 29 B e familiar with these and other important wildlife

- related statutes. Where an agency is not the primary enforcement agency, a Memorandum of Agreement and/or a cooperative agreement may be required before you may enforce a particular

wildlife statute.

VIII. Administra tive Inspection Authority

Many land management agency regulations include various types of inspection a uthority. For example, the National Park Service provision below illustrates the typical inspection authority for land management agencies.

36 C.F.R. 3.5 Inspections

(a) Authorized persons may at any time stop or

board a vessel to exam ine documents, licenses or permits relating to operation of the vessel, and to inspect such vessel to determine compliance with regulations pertaining to safety equipment and operation. (b) An authorized person who observes a vessel being operated without sufficient lifesaving or firefighting devices, or in an overloaded or unsafe condition, as defined in United States Coast Guard or National Park Service regulations, may direct the operator to take immediate and reasonable steps necessary for the safety of those aboard the vessel, including but not limited to directing the operator

to: (1) Correct the hazardous condition immediately; (2) Proceed to a mooring, dock, or anchorage; or (3) Suspend further use of the boat until the

hazardous condition is correct ed. (c) Violation of directions issued in accordance with paragraph (b) of this section is prohibited._______________ Authority and Jurisdiction of Federal Land Management Agencies 30 Since this provision does not require reasonable suspicion or probable cause and a warrant, this administrative inspection authority must be “reasonabl e” under the balancing analysis of the Fourth Amendment.

The Supreme Court in Camara v. Municipal Court 2 set out a three prong analysis to determine the reasonableness of a

warrantless intrusion into an individual’s Fourth Amendment

interests. The three f actors 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 Co urt applied a similar test to the warrantless inspection of a junk yard as a pervasively regulated industry. In Burger , the three requirements were described as

follows:

**•** There must be a substantial governmental interest that informs the regulatory scheme to which the inspection is made.

**•** The warrantless inspections must be necessary to further the regulatory scheme.

**•** The inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. In simpler terms, it must advise the owner that the search is being made pursuant to law and it must have a properly defined scope while limiting the discretion of the inspecting officers.

Recreational hunting, fishing, and boating are pervas ively or closely regulated activities no matter where they occur. When they occur on federal public lands, such as park areas, the government interest is substantial. Game warden

2 Cases named in this chapter witho ut a case cite are briefed in the companion book, Legal Division Reference Book._______________ Authority and Jurisdiction of Federal Land Management Agencies 31 inspections of all three activities are common and expected.

The transient nature of these activities is not conducive to obtaining a search warrant. Finally, government discretion is limited by the scope of the regulatory scheme._______________ Authority and Jurisdiction of Federal Land Management Agencies 32 

### NOTES_______________ Conspiracy and Parties 33 

## Chapter Two

Conspiracy and Parties

Part One

- Conspiracy

I. I NTRODUCTION

................................ ................................ ... 34

A. Advantages

................................ ................................ ......... 34

1. Get Beyond The First Layer

................................ ............ 34

2. Past, Present, and Future

................................ .............. 35

3. Allow Juries to See the Entire Operation

........................ 35

4. Use of the Grand Jury

................................ ................... 35

B. Disadvantages

................................ ................................ ..... 36

1. Time Consuming

................................ ............................ 36

2. Witness Difficulties

................................ ........................ 36

3. No Instant Results

................................ ......................... 36

II. T HE S TATUTE

................................ ................................ .... 37

A. Title 18 U.S.C. § 371

................................ ........................... 37

B. The Elements

................................ ................................ ...... 38

1. Two or More Persons

................................ ...................... 39

2. Knowledge and Intent

................................ .................... 39

3. The Agreement

................................ ............................... 40

4. Unlawful or Fraudulent Means or Objective

................... 41

5. The Overt Act

................................ ................................ . 42

III. T HE L AW OF C ONSPIRACY

................................ .................... 42

A. The Doctrine of Merger/Double Jeopardy

............................ 43

B. Pinkerton Theory of Vicarious Liability

................................ 43

C. Co

- Conspirator’s Statement s

................................ .............. 43

D. Late Joiners to a Conspiracy

................................ ............... 45

E. Withdrawal from a Conspiracy

................................ ............ 45

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

............................ 46

G. Venue

................................ ................................ ................. 46

IV. I NVESTIGATING C ONSPIRACIES

................................ ............. 47

A. Chronology

................................ ................................ ......... 47

B. Organizational Chart

................................ ........................... 48

C. Recruit and Develop Witnesses

................................ ........... 48

D. Locate and Acquire

................................ ............................. 49

V. A TTEMPT TO C OMMIT A C RIME

................................ ............ 50_______________ Conspiracy and Parties 34 Part Two

- Parties To Criminal Offenses

I. I NTRODUCTION

................................ ................................ ... 51

II. A IDING AND A BETTING (18 U.S.C. § 2( A ))

............................... 51

III. C AUSING THE C OMMISSION OF A C RIME (18 U.S.C. § 2( B ))

....... 52

IV. A CCESSORY AFTER THE F ACT (18 U.S.C. § 3)

......................... 52

V. M ISPRISION OF F ELONY (18 U.S.C. § 4)

................................ . 53



## *****

I. Introduction

The crime of conspiracy was created because of the inherent dangers posed to society when two or more individuals join together to viola te the law. A person who joins with others to commit a crime strengthens the criminal scheme and enhances the potential success of the scheme. Furthermore, once an individual joins with others, that person is less likely to change their mind than one who has made a solitary decision to violate the law. Once conspiracies are formed, there is the danger they will get out of control, recruit other criminals, and become more dangerous and difficult to immobilize. For all these reasons, the identification an d targeting of multi

defendant criminal networks is essential to successful law

enforcement.

The conspiracy statutes can often be used to great advantage by criminal investigators. This chapter provides a working knowledge of the law of conspiracy and th e focus of conspiracy investigations should you encounter organized

criminal cartels.

A. Advantages

In any investigation involving two or more defendants, agents should consider the following advantages of a conspiracy

c harge:

1. Get Beyond The First Layer

In many cases the organizers and “brains” behind a criminal organization insulate themselves from those members_______________ Conspiracy and Parties 35 whose actions are more visible, thus making them less

s usceptible to getting caught. The law of conspiracy enables the investigator to get beyond the first layer of visible members of a conspiracy and immobilize the entire criminal organization.

2. Past, Present

, and Future

The criminal investigator will often initiate a case on a criminal organization where the objectives of the conspiracy are still ongoing (a fraudulent investment scheme). In other cases, the goal of the conspiracy will have already been ac complished (a federal building has been blown up). In some instances, the criminal objectives may still be in the planning stage (planning to rob a bank). In a conspiracy investigation the investigator can go in any direction, past, present or future. B ecause the conspiracy statute is pro

- active in nature, criminals may be apprehended prior to any substantive criminal offense being consummated (e.g., before an assassination or bank robbery attempt).

3. Allow Juries to See the Entire Operation

In presenting a conspiracy case to a jury the prosecution

can describe the roles and relevant conduct for each member of the conspiracy. The entire scope of the operation can be spelled out, even thou gh some of the members of the conspiracy may not be on trial. An additional benefit to a conspiracy charge is that multiple defendants can be tried at the same time. Having the members of the conspiracy sitting together as the prosecution describes each one’s role in the criminal enterprise strengthens the government’s position that they were all acting in concert together, albeit some members had larger roles than

others.

4. Use of the Grand Jury

Through the grand jury, the investigator can obtain documentary evidence not easily obtained without the power of a grand jury subpoena. Witnesses who are reluctant to provide information can be subpoenaed to testify before the grand jury._______________ Conspiracy and Parties 36 Sworn testimony of witnes ses can be preserved for trial or become the basis of a perjury charge.

B. Disadvantages

Developing a successful conspiracy investigation may be severely hampered due to certain limiting factors, many of

which the inv estigator has no control over. Some of these disadvantages may be:

1. Time Consuming

In many conspiracy investigations, the overt acts that furthered the conspiracy were performed in the past. Further,

members of t he conspiracy take great pains to conceal their criminal scheme. It will be very time consuming for the criminal investigator to organize their goals, identify their targets, develop witnesses, corroborate the witnesses and gather evidence to strengthen t he case.

2. Witness Difficulties

Successful conspiracy investigations depend on developing key witnesses. More often than not, the most knowledgeable witnesses are co

- conspirators. Unfortunately,

these witnes ses are difficult to manage and control and often can be an embarrassment to the government. They are easily impeached and possess very little appeal to the jury. There will be times when even the hardest working investigator will be unable to provide en ough corroboration to make these

witnesses believable.

3. No Instant Results

A primary goal of the conspiracy investigation is to prosecute all (or as many as possible) who willingly participated

in the criminal venture. The larger the number of participants in a conspiracy, generally the longer it takes to develop the case. Consequently, there will not be the “instant results” commonly associated with single arrests for substantive

offenses._______________ Conspiracy and Parties 37 In spite of these d isadvantages, the conspiracy investigation is one of the most effective weapons in the law enforcement officer’s arsenal. It is designed to immobilize and eliminate those that bind together to strengthen their criminal endeavors. Remember, it was a consp iracy investigation that prompted Richard M. Nixon to resign as president of the United

States.

II. The Statute

A. Title 18 U.S.C. § 371 1

There are a number of federal statutes that criminalize certain types of conspiracies, such as 1 8 U.S.C. § 241 (Conspiracy Against Civil Rights) and 21 U.S.C. § 846 (Controlled Substance Conspiracy) . This class is concerned only with the general federal conspiracy statute, 18 U.S.C. §

37 1 . This statute reads as follows:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or

more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

The plain language of the statute prohibits two distinct types of conspiracies. First, it prohibits any conspiracy to

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

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Conspiracy and Parties 38 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 dep artment of the United States government,

such as the Internal Revenue Service.

The statute provides a maximum punishment of not more than five years, as well as a fine up to $250,000.00, but only if

th e intended or committed substantive offense is a felony. If the offense committed or intended is a misdemeanor, the maximum punishment for the conspiracy charge cannot exceed the maximum possible punishment for the misdemeanor.

B

. The Elements

There are five essential elements the government must prove beyond a reasonable doubt to establish a violation of § 371. A conspiracy exists when:

**•** Two or More Persons

**•** Int entionally

**•** Agree

**•** To Violate Federal L aw or Defraud the United States

a nd

**•** Commit an Overt Act in Furtherance of the Agreement

Once these elements have been met, the crime of conspiracy is COMPLETE . In other words, once a co

conspirator commits an overt act in furtherance of the agreement, all of the co

- conspirators may be prosecuted for conspiracy, even if they take no further steps to accomplish their ultimate goal._______________ Conspiracy and Parties 39 1. Two or More Persons

A conspiracy requires the participation of “two or more persons.” The persons need to be capable of fo rming the necessary criminal intent to agree to the objects of the conspiracy. One person cannot be convicted of conspiring with himself, an undercover law enforcement officer, or a cooperating informant. Because a government agent or an agent of the

gov ernment (cooperating informant) does not truly intend to commit the ultimate crime of the conspiracy, they cannot be counted as a conspirator. Likewise, individuals who do not have the mental capacity to form the criminal intent to conspire may not be one of the required two or more persons in a conspiracy. Minors and mentally ill persons could fall into this
category.

The two persons need not meet. They need not know each other’s identities. But, they must be aware of, or must reasonably foresee of, e ach other’s existence and roles. For example, in a conspiracy to hijack goods, the person who steals

a tractor

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

the inside who advised when the tractor

- trailer could be easily

taken nor would he necessar ily know the person who was purchasing the stolen goods. Further, as long as there are at least two members, a conspiracy continues even if the members change.

2. Knowledge and Intent

The government must prove that the defendant had knowledge of the conspiracy and intended to participate in it.

(a) Knowledge

To be a party to a conspiracy, an individual must know of the conspiracy’s existence and its overall plan or purpose. However, each conspirator need not know all of the details of the plan. While the defendant must know that at least one other person is involved in the conspiracy (so that an agreement is pos sible), there is no requirement that the defendant know_______________ Conspiracy and Parties 40 the identity, number, or role of all co

- conspirators. Secrecy and concealment are features of a successful conspiracy. Accordingly, the law allows the conviction of individuals without requiring tha t they have knowledge of all the details of the conspiracy or of all those participating in it.

(b) Intent

The defendant must intend to participate in the conspiracy. The government must present evidence that the defendant joined voluntarily, by agreein g to play some part with the intent to help it succeed. The mere showing that a defendant was aware of the plan or that the defendant approved of the plan is not enough to prosecute, without showing intent to participate in the conspiracy. A defendant’s intent may be proven through circumstantial evidence, such as the defendant’s relationship with other members of the conspiracy, the length of the association between the members, the defendant’s attitude and conduct, and the nature of the conspiracy. Act s committed by the defendant that furthered the objective of the conspiracy are strong circumstantial evidence that the defendant was a knowing and willing participant in the conspiracy.

3. The Agreement

The essence o f any conspiracy is the agreement. Conspiracy is different than substantive crime. In substantive crime the act is criminal. In conspiracy, the mere agreement to

violate the law becomes criminal once an overt act in furtherance of the agreement takes place. Seldom, if ever, is there proof of a formal agreement. The agreement does not have to be put into words, either oral or written. The agreement

is often established through circumstantial evidence and can be as loose as a mutual understanding. Association with members of a conspiracy is helpful in establishing a defendant’s willing participation; however, mere presence at the scene is not enough to show agreement. A subject can be present with other known conspirators without intending to join or further the objects of the conspiracy._______________ Conspiracy and Parties 41 A subject can also do something to help the conspiracy without actually joining. For example, an individual may rent
an apartment to members of a conspiracy. The conspirators use the apartment to set up their “bookmaking” operation. As such, the apartment owner has aided the conspiracy. However, absent a showing that he had a stake in the venture (doubled the rent) or knew of the co nspiracy and intended to help it by providing a hiding place, he has not joined in the agreement. Mere presence and helping without joining in the agreement are common defenses to conspiracy charges. Efforts must be made to establish a defendant’s joinin g in the agreement. This can be shown directly by co

- conspirators’ testifying about the defendant’s role in the organization or indirectly by documenting a series of acts or events that demonstrate the

defendant acted in concert with and must have been in agreement with other members of the conspiracy.

4. Unlawful or Fraudulent Means or Objective

To successfully prosecute under § 371, either the objective of the conspiracy or the means to a ccomplish the objective must (1) be an offense against the United States or (2) tend to defraud the United States. If neither the objective, nor

the means to acc omplish the objective, violate federal law or tend to defraud the United States, prosecution under § 371 is not available. This illustrates an important concept; the objective of the conspiracy does not have to be a crime. It is

sufficient to show that t he contemplated objective would impede, impair, defeat, or obstruct the proper functions of the United States Government. This could be accomplished through a scheme such as “bid

- rigging” or through an agreement to obstruct the regulatory functions of a g overnment agency, such as the Internal Revenue Service, which is often a

civil violation of law.

It is not a defense that the objective was factually impossible to achieve. For example, if the objective of the conspiracy is to kill an individual who, unk nown to the conspirators, is already dead, then it is factually impossible for the conspirators to carry out their plan. However, the_______________ Conspiracy and Parties 42 conspiracy charge was complete the moment the first overt act in furtherance of the agreement was committed.

5. The Over t Act

The final element in a conspiracy prosecution under § 371 is that, following an agreement, one of the conspirators

committed an “overt act” in furtherance of the agreement. The overt act demonstrates that the conspirators have moved from a “thought” crime to one of action. Instead of simply talking about the crime, the conspirators have actually take n a step towards making it a reality. An overt act shows that the agreement is not dormant, but is actually being pursued by the conspirators.

Only one overt act must be committed to complete the crime of conspiracy. An overt act is any act done for the purpose of advancing or helping the conspiracy. A single overt act is sufficient to complete the conspiracy for all members, including those who join the conspiracy after it has begun. The overt act must occur after the agreement. The government may

no t rely on acts committed before the agreement to complete the conspiracy.

Additionally, the overt act need not be criminal in nature to complete the conspiracy, but may, in fact, be entirely lawful. For example, the overt act may be preparatory in nature , such as buying a car or mask to use in a bank robbery. If the substantive offense is actually committed, that offense may be used as the overt act necessary to complete the conspiracy. For instance, if two persons agree to rob a bank and did so, the

ba nk robbery would be the overt act necessary to complete the conspiracy.

III. The Law of Conspiracy

In addition to the elements to be proved in conspiracy cases, there is significant law you should know when undertaking a conspiracy investigation. The following sections provide the criminal investigator some additional legal principles to guide investigations._______________ Conspiracy and Parties 43 A. The Doctrine of Merger/Double Jeopardy

A conspiracy charge is a separate and distinct offense from the crime being planned and does not merge with the substantive offense, should it ultimately be committed. The Doctrine of Merger holds that inchoate offenses (those committed to lead to another crime) such as solicitation and attempts to commit crimes merg e into the substantive offense i f that offense is committed. Conspiracy, an inchoate offense, does not merge in to the substantive offense. In addition, conspiracy to commit a substantive offense has different

elements than the substantive offense and will survive a double jeopardy challenge when both are charged utilizing the exact

same evidence.

B. Pinkerton The ory of Vicarious Liability

Conspirators are criminally responsible for the reasonably foreseeable acts of any co

- conspirator that was committed in furtherance of the overall plan. This is kno wn as the Pinkerton Theory of “vicarious liability.” For example, if the plan was to smuggle counterfeit computer software into the United States, bribing a U.S. Customs Inspector wou ld 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 defen dant could

not be held liable for that act unless he or she was the individual who actually committed it. The benefit of this rule is that all foreseeable acts of the conspiracy can be introduced at trial even though those on trial may not have participat ed in the

acts. Pinkerton v. United States

, 328 U.S. 640 (1946)

.

C. Co

- Conspirator’s Statements

The Federal Rules of Evidence (Rule 801(d)(2)(E)) 2 provides, in pertinent par t:

2 This Rule can be foun d in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Rules of

Evidence .”_______________ Conspiracy and Parties 44 A statement is not hearsay if ... the statement is offered against a party and is ... a statement by a

co

- conspirator of a party during the course of and in furtherance of the conspiracy.

The rules r egarding hearsay are covered more fully in the “Courtroom Evidence” portion of the text. Even though hearsay evidence is generally inadmissible, there are a variety of exclusions and exceptions to that rule. One of those exclusions is that everything sai d, done, or written by a conspirator during the existence of the conspiracy and in furtherance of the conspiracy is admissible against all co

- conspirators. When deciding whether a co

- conspirator’s statement is admissible under this rule, five questions mu st be asked:

**•** Was there a Conspiracy?

**•** Was the Defendant a Member of the Conspiracy?

**•** Was the Person who made the Statement a Member of the Conspiracy?

**•** Was the Statement made during the Conspiracy?

**•** Was the Statement made in Furtherance of the Conspiracy?

If the answer to each of the above questions is “yes,” then the statement is admissible. If the answer to any of the above questions is “no,” then the statement is not admissible under this rule, although it may be admissible under another exception or exclusion to the hearsay rule. The co

- conspirator, against whom the statement is admitted, need not have been present or even heard the statement when it was made. Furthermore, any witness who heard the statement may testify regarding it, irrespective of whether the witness is a member of the conspiracy. Thus, if A and B conspire, and B makes statements to C during and in furtherance of the conspiracy, C may testify about B’s statements at A’s trial, even though C was not a member of the conspiracy. In contrast, things said or_______________ Conspiracy and Parties 45 done by a conspirator only in his self

- interests, not meant to help the conspiracy, are called “frolics” and are not admissible evidence against the conspiracy. Likewise, a post

- arrest
statement is not admissible under this rule b ecause the statement was not made during and in furtherance of the conspiracy.

D. Late Joiners to a Conspiracy

The law recognizes that an individual may join a conspiracy after it has begun but before it has been terminated. Such an individual is referred to as a “late joiner” to the conspiracy. They do not have to commit an overt act, only join in the agreement. “Late joiners” take the co nspiracy as they find it. “Late joiners” are criminally responsible; not only for the conspiracy charge, but for any reasonably foreseeable acts done by any co

- conspirator while the “late joiner” is a member of the conspiracy. “Late joiners” are not crim inally responsible for the

criminal offenses of co

- conspirators committed prior to their joining the conspiracy. Nonetheless, the prior acts of the co

conspirators are admissible at the trial of the “late joiner,” in

order to show the existence of the con spiracy.

E. Withdrawal from a Conspiracy

Just as the law recognizes that individuals may join a conspiracy after it begins, the law also recognizes that individuals may withdraw from the conspiracy prior to its termination. Withdrawal from a conspiracy requires more than simply no longer participating. A valid withdrawal from a conspiracy has two basic requirements. First, the individual

must do some affirmative act inconsistent with the goals of the conspiracy. Unless a conspirator produces affirmative evidence of withdrawal, his or her participation is presumed to continue. Second, the affirmative act must be reasonably calculated to be

co mmunicated to at least one other known conspirator or law enforcement personnel. Withdrawal is an affirmative defense that must be proved by the defendant._______________ Conspiracy and Parties 46 If an individual validly withdraws from a conspiracy, the statute of limitations on the conspirac y charge for that individual will begin to run the date of the withdrawal. Further, the withdrawal of a conspirator does not generally change the status of the remaining members. The valid withdrawal of a single conspirator from a two

- person conspiracy h owever, will result in the termination of the conspiracy, because the requisite “two or more persons” are no longer present. Once a valid withdrawal occurs, the withdrawing defendant will escape liability for any subsequent criminal acts of the remaining conspirators, but remains liable for conspiracy and for any criminal acts committed while a member of the conspiracy. Only by withdrawing from the agreement before the commission of the overt act will the individual escape liability for the conspiracy cha rge.

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

The statute of limitations for the crime of conspiracy is five years. Generally, the statute of limitations begins to run from the date the conspiracy is completed, terminated, or abandoned. Typically, the statute of limitations begins to run from the date the last overt act was committed in furtherance of the conspiracy (e.g., dividing the money from the bank robbery). The conspiracy itself may, depending on the nature of the agreement, continue past achieving the objective, in order to conceal the crime or to destroy or suppress evidence. In such cases, the statute of limitations would be extended and would

no t start to r un until such time as the last overt act (i.e., the last act of concealment) occurs. For substantive offenses

commit ted during the timeframe of the conspiracy, the statute

of limitations begins to run from the date the offense was

committed.

G. Venue

The Sixth Amendment requires that prosecution occur “in

the State and District wherein the crime shall have been committed.” Because the legal basis for a conspiracy is an agreement and an overt act in furtherance of that agreement,_______________ Conspiracy and Parties 47 venue for a conspiracy charge exists in the district where the agreement was entered into, or in any district in which an overt act in furtherance of the agreement was committed. Since the act of one conspirator is an act of all conspirators, an act in a district by one will result in venue in that district for all conspirators, even where the others were never physically present in the district.

If a substantive offense is committed, venue for the

substantive offense will be in the district where it occurred. As a practical matter, cases are charged in the distric t where venue for both the conspiracy and the substantive offense overlap.

IV. Investigating Conspiracies

The general approach to conducting a conspiracy investigation is to identify the members within the organization along with their respective roles for achieving the criminal objectives. Criminals attempt to conceal their plans and avoid detection so recruiting and developing witnesses is critical to any conspiracy investigation. You will need to l ocate and obtain evidence to corroborate witnesses and support the theory of the case that the defendants were acting together in agreement, toward a common criminal objective.

To accomplish these goals, you need to be organized. Documenting the activiti es of the organization and charting the members of the organization can simplify these tasks.

A. Chronology

Documenting the criminal activities of an organization is accomplished through the use of “overt act sheets.” A n overt act sheet is a single sheet of paper that summarizes an overt act done in furtherance of the conspiracy. It includes the date and synopsis of the overt act, the defendant(s) involved, the primary and corroborative witnesses and the type of evidenc e whether oral, documentary or p hysical. Maintaining a notebook compilation of overt acts in furtherance of the conspiracy will provide a chronology or time line of the conspiracy. This_______________ Conspiracy and Parties 48 chronology is of utmost importance in presenting the case to an

AUSA for prosecution and in identifying the weaknesses and strengths in the government’s proofs.

B. Organizational Chart

Prepare an organizational chart identifying all known and “unknown” members of the organizati on. In identifying known members of the conspiracy, you should strive to determine each player’s particular role in the criminal scheme. Identifying roles will assist in targeting the main members of the conspiracy. Further, identifying member’s role in the offense facilitates establishing how they all worked together to accomplish the

criminal venture.

C. Recruit and Develop Witnesses

Always attempt to identify and recruit the broadest base

of witne sses to ensure the most expansive and credible amount of testimony available. Be conscious of being compromised when interviewing witnesses and gathering evidence. When interviewing new witnesses, you should not instantly identify the “targets” of the in vestigation by name or showing them photo spreads of the subjects being investigated. Maintain the spirit of strict confidentiality with the witness and what they disclose. Do not divulge the identity of other witnesses in the investigation even if the w itness being interviewed knows their identity.

In most cases, the most knowledgeable witnesses will be members of the conspiracy themselves. Unfortunately these witnesses come with a lot of “baggage” and are easily impeachable. They often have prior cri minal histories, are testifying for some particular benefit to themselves and give incomplete or inconsistent statements. Every effort must be made to corroborate these witnesses. Generally speaking, witnesses can be discredited; documents don’t lie. Ex tract
details from witnesses and obtain documents to corroborate their testimony. Never cut corners when you have located documentary evidence that could become invaluable in_______________ Conspiracy and Parties 49 corroborating your witness’s testimony. Use the proper search warrant or subpoe na to obtain evidence.

Statements made by co

- conspirators in furtherance of the conspiracy are some of the most damaging evidence in a conspiracy prosecution. Make a concerted effort develop this testimony and corroborate it through supporting co

- conspir ator testimony and non

- conspirator testimony. As always, any supporting documentary or physical evidence should be pursued. For example, a witness could testify to conversations

she heard from a co

- conspirator describing how he and a third

co

- conspirator murdered an individual who hadn’t paid his drug debt. Testimony from evidence technicians and the coroner as to where the shell casings were found and the trajectories of the bullets entering the body would corroborate

the co

- conspirator witness’s accoun t of the shooting

conversation to establish the defendant had to have been present to possess that particularized knowledge.

D. Locate and Acquire Evidence

Locate and acquire evidence in support of the witness’s testimony. Utilize whatever law enforcement techniques are available to obtain evidence of the conspiracy. Use search warrants, grand jury subpoenas, “trash pulls,” evidence purchases, consensual recordings, “clone” pagers, wire

- taps,
and evidence seized by other agencies to further the case. Bank accounts, credit cards, tax records, toll call records, photographs, real property records, airline tickets, car rentals, hotel records, vehicle, boat, aircraft registrations, to name a few, should all be explo red in support of the investigation. The more you can independently corroborate each witness’s testimony the greater the chances for a successful prosecution.

At times you will encounter a suspect who knowingly helps a conspirator commit a target crime, but it is unclear if the suspect has JOINED the conspiracy. Consider arresting that suspect for aiding & abetting the target crime. Part Two of this section, discusses “Parties to Criminal Offenses.”_______________ Conspiracy and Parties 50 V. Attempt to Commit a Crime

An attempt to commit a crime is a crime, although it is not defined by statute. To prove a person attempted to commit a crime, the government must show the defendant’s i ntent to commit a crime together with the commission of an act that “constitutes a substantial step towards commission of the

crim e.” The government’s burden of proving the defendant took a substantial step toward commission of the crime protects a

defend ant from being convicted for mere thoughts, desires or motive. The degree of a defendant’s performance of a substantial act in furtherance of the illegal activity is a factual issue depending on the circumstances of each particular case. Generally speaki ng, something less than a completed transaction supports an attempt, provided there is a substantial step toward completion of the crime._______________ Conspiracy and Parties 51 

### Part Two

- Parties to Crim inal Offenses

I. Introduction

When a crime is committed, the individual who actually

commits the crime is referred to as the “principal” of the

offense . However, there are often individuals who assist or help the principal to commit the offense. Some of these individuals provide assistance before the crime is committed, while others provide some manner of assistance after the crime has been

committed. Still others may have knowledge that a federal crime was committed, yet take affirmative steps to conceal this knowledge from federal investigators. All of these persons are known as “parties” to the offense.

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

Any person who knowingly aids, abets, counsels,

command s, induces or procures the commission of an offense may be found guilty of that offense. For example, the charge would read: Theft of Government Property, Aiding and Abetting; in violation of 18 U.S.C. § 641 and 2. That person must knowingly associate w ith the criminal activity, participate in the activity, and try to make it succeed.

In other words, the defendant must actually do something

to assist the commission of the crime. The affirmative act of association must occur either before or during the commission of the crime by the principal. An individual cannot aid and abet a completed crime. If the affirmative act occurs after the commission of the crime, the defendant is not guilty of “aiding and abetting,” but may be liable as an “accessory after the fact” (discussed below).

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

time the actual crime is committed nor know all the details of the crime. Further, presence at the scene of the crime, even in

3 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Conspiracy and Parties 52 the presence of the principal, does not , standing alone, make an individual an aider and abettor. The government must show that the association with the principal was for the purpose of assisting in committing the crime. “Mere association” with the principal is a common defense to an aiding a nd abetting charge. In addition to an affirmative act of association, the defendant must also know that he or she is assisting in the commission of a crime. Deliberate avoidance of knowledge (otherwise known as “willful blindness”) does not prevent a find ing of guilt.

Deliberate avoidance occurs when a defendant claims a lack of guilty knowledge, but the evidence shows that he or she instead chose to intentionally avoid gaining knowledge about the circumstances surrounding their assistance in order to avo id criminal responsibility.

Finally, a crime must actually be committed in order to charge an indi vidual as an aider and abettor. However, a defendant may be convicted of aiding and abetting even though the actual principal of the crime is never convicted or even identified.

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

If a person w illfully 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 commi tted the offense, or that the defendant is present when the crime is committed. There is also no requirement that the individual who actually committed the

offense be convicted in order to convict the individual who

caused the crime.

IV. Accessory after the Fact (18 U.S.C. § 3 ) 4

An accessory after the fact is one who, with knowledge

4 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Conspiracy and Parties 53 that an offense was committed, receives, relieves, comforts or assists the offender with the intent to hinder or prevent the offender’s apprehension, trial or punishment. The offense that was committed can be a felony or a misdemeanor. Silence alone does not constitute accessory after the fact. However, where an individual provides false or misleading statements to law enforcement officers in an effort to assist a principal in evading apprehension, trial or punishmen t, those statements may be used to prove the offense. As with aiding and abetting, the conviction of the principal is not necessary to convict a defendant as an accessory after the fact.

A defendant convicted of being an accessory after the fact is not g uilty of the offense that was committed, as is a defendant convicted of aiding and abetting. If an individual is convicted of being an accessory after the fact, the maximum possible punishment is one

- half the maximum punishment possible for the principal of the offense (not the actual sentence received), up to a total of 15 years in those cases where the principal could receive either life imprisonment or the death penalty.

V. Misprision of Felony (18 U.S.C. § 4 ) 5

This statute is directed at those individuals who have knowledge of a felony offense and take affirmative steps to

conceal the crime and fail t o disclose their knowledge to criminal investigators. Misprision of felony is concealing a felony without giving any degree of help to the individual who actually committed the crime. The penalty for mispr ision 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 com mitted felony

, the

defendant performed either an affirmative act of concealment or an act that concealed the true nature of the crime, and

5 This statute can be found in its entirety in the companion book, Lega l Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Conspiracy and Parties 54 defendant failed to disclose knowledge of the crime as soon as possible.

As with the crime of accessory after the fact, an

individual’s silence is not a crime. A simple failure to report a crime does not, without an affirmative act of concealment, make one guilty of misprision of felony. However, where an individual lies to or misleads criminal investigators, this element may be

met.

A defendan t accused of being an accessory after the fact must intentionally assist the principal of the crime, while one accused of misprision of felony need only commit an act of concealment without necessarily intending to assist the principal. Finally, accessory after the fact does not require the defendant to disclose his knowledge as soon as possible, while misprision of felony does.

The offenses of accessory after the fact and misprision of felony are closely related and often there will be sufficient

evidenc e to charge either or both. Collect all the facts and let the Assistant United States Attorney make the charging

decision._______________ Constitutional Law 55 

## Chapter Three

Constitutional Law

I. H ISTORICAL B ACKGROUND

................................ ................... 56

II. F RAMING THE C ONSTITUTION OF THE U NITED S TATES

.............. 57

III. T HE C ONSTITUTION AS A “L IVING D OCUMENT ”

........................ 57

IV. R ELEVANCE TO L AW E NFORCEMENT

................................ ....... 59

V. O RGANIZATION OF THE F EDERAL G OVERNMENT

....................... 60

A. The L egislative Branch

................................ ........................ 60

B. The Executive Branch

................................ ......................... 62

C. The Judicial Branch

................................ ............................ 63

D. A System of Checks and Balances

................................ ....... 63

VI. A MENDMENTS TO THE C ONSTITUTION

................................ ..... 65

A. First Amendment

................................ ................................ 65

1. Religion

................................ ................................ .......... 66

2. Speech

................................ ................................ ........... 67

3. Peaceful Assembly

................................ ......................... 69

B. Fourth Amendment

................................ ............................. 70

C. Fifth Amendment

................................ ................................ 72

1. Double Jeopardy

................................ ............................ 73

2. Self

- Incrimination

................................ .......................... 74

3. Grand Jury Indictment

................................ .................. 75

4. Due Process of Law

................................ ........................ 75

D. Sixth Amendment

................................ ............................... 75

1. Speedy Trial

................................ ................................ ... 75

2. Confrontation of Witnesses

................................ ............ 76

3. Compulsory Process

................................ ....................... 76

4. Assistance of Counsel

................................ .................... 76

5. Informed of t he Charges

................................ ................. 76

6. Venue

................................ ................................ ............ 77

E. Eighth Amendment

................................ ............................. 77

F. Fourteenth A mendment

................................ ...................... 78

VII. C RIMINAL J USTICE C OMPONENTS FROM THE C ONSTITUTION

...... 78

VIII. C ONTROLLING S PEECH UNDER THE F IRST A MENDMENT

............. 79

A. Generally

................................ ................................ ............ 79

B. Government Action

................................ ............................. 79

C. Expression

................................ ................................ .......... 80

D. Government Restrictions

................................ ..................... 81

1. Content Based Restrictions

................................ ............ 82

2. Content

- N eutral Restrictions

................................ ......... 83_______________ Constitutional Law 56 E. Unprotected Conduct

................................ .......................... 84

F. Unprotected Speech

................................ ............................ 85

1. Fighting Words

................................ .............................. 86

2. True Threats

................................ ................................ .. 87

3. Advocating Imminent Lawlessness

................................ . 89

4. Clear and Present Danger

................................ .............. 90

5. Obscenity

................................ ................................ ....... 91



## *****

I. Historical Background

Americans lived under colonial charters for over a century before violations of the “rights of Englishmen” by colonial governors and lesser officials on instruction of the King led the colonies to seek severance from England by declaring their independence. The pu rpose and effect of the Declaration of Independence by the thirteen colonies was to create thirteen separate and individual sovereigns (states) and to present a united front against the British Crown. The Revolutionary War provided the first real impetus for unity among the states since each was attemp ting to throw off the English yoke.

After the war, the colonies were jealous and very protective of their new independence and were not ready to relinquish it to a strong central governing body. It soon be came apparent, however, that a central government was necessary to carry on the day

- to

- day affairs of the nation. As a result, the Articles of Confederation, providing for a national government, were approved in 1781. Deliberately kept weak by the authors, the national government under the Articles quickly became impotent because of the lack of such fundamental necessities as a chief executive, the right to regulate commerce, and the power to levy taxes. The various states issued their own currencies, hampe ring trade between them. There was no central court system to resolve legal disputes between the states and/or citizens of different states. Each state conducted its own foreign policy.

By the mid 1780’s it was clear that the federal government under the Articles of Confederation had to be_______________ Constitutional Law 57 reorganized into a more viable form. In May of 1787, delegates from the states met in Philadelphia “for the sole and express purpose of revising the Articles of Confederation....” However, the delegates soon recognized that simply revising the Articles would not work. They then undertook to form a new national government. The product of this convention was the

Constitution of the United States.

II. Framing the Constitution of the United States 1

“We t he people of the United States, in order to form a more perfect Union .. . do ordain and establish this Constitution

of the United States of America

.. .” So begins the most important document in American governance. It is the cornerstone, the foundation upon which is built the relationship between the citizens and their government. The Constitution defines the rights, privileges and responsibilities of the people

and limits government authority over the people . It is a contract between the people and the government. The people are bound by the laws of the government and the government is bound by the provisions and principles of the Constitution. Our government is, emphatically and truly, a government of the people. In form and in substance, the government emanates from the people. Its powers are granted by them to be exercised directly on them for their benefit. The authority to govern is derived from the consent of the people to be governed.

III. The Constitution as a “Living Document”

No study of the United States Constitution is ever complete because the Constitution is considered a “Living

Document.” It is subject to amendment by Legislative action. (See Article V). In the 200 plus years of its existence, there have been over 2,000 formal proposals to amend the Constitution. Only 27 have been adopted. Even though this process is obviously not the primary source of the Constitution’s flexibility,

1 The U.S

. Constitution and its amendments are located in the companion book, Legal Division Reference Book , in the segment entitled “ A dditional

Resources Section .”_______________ Constitutional Law 58 amendments have provided significant principles and paradigms that go to the core of our philosophy of government.

The manner in which the people at large, t he Legislatures, and particularly the United States Supreme Court justices, view the Constitution creates gradual, subtle change s in the way it is interpreted. The Constitution is more than just the written

document. In the words of the late Chief Justice Charles Evans Hughes, “The Constitution is what the judges say it is.” Changes in interpretation are often due to changes in the social

climate . Thus, although there has been no substantive change in the language of the Constitution, many Supreme Court decisions interpreting constitutional issues have altered police

street

- level enforcement tactics and procedures. For example, the Fifth Amendment right that no person “shall be compelled in any criminal case to be a witness against himself” has not chang ed in over 200 years; however, to protect that right, the Supreme Court requires police officers to advise suspects of

their Miranda rights during custodial interrogations.

Lord Blackstone once commented that the United States

Constitution is the most rem arkable document ever written by mankind, for the Constitution is constantly evolving to meet the requirements of an ever changing society. Our society has changed in dramatic and radical ways since the Constitution was originally written and ratified. Al though the drafters could never have anticipated computers, the Internet, airplanes and automobiles, radio and television, they understood that Constitutional principles would be applied to facts, circumstances and situations that were not contemplated by them. In the words of James Madison, generally regarded as the “father of the Constitution,” “In framing a system we wish to last for ages, we should not lose sight of the changes that ages will bring.” Our ever

- changing society will continue to require

th e application and interpretation of these bedrock constitutional principles to new and novel circumstances. Because of the changes in the Constitution, both substantive and interpretive, and changes in its application to our developing society and culture , law enforcement officers must_______________ Constitutional Law 59 never cease referring to constitutional law for guidance when performing official duties.

IV. Relevance to Law Enforcement

The Constitution is the source of all federal law. All federal laws must be grounded in the Constitution, for it is from this source only th at they derive their authority. Article I, Section 8 grants to Congress the authority to make la ws regarding specific subjects. Our government is one of

enumera ted powers, and it can exercise only the powers granted

to it. The Constitution specifically limits the po wers of the federal government. The powers not specifically delegated to the United States by the Constitution, nor prohibited by it to the States, ar e reserved to the States or to the people.

The United States Constitution, even though limiting in its construct, is the supreme law of the land. Other laws may deal with matters not specifically considered in the Constitution, but no law, be it state or federal, can conflict with the Constitution (see Article VI).

The Constitution, as a covenant between the government and the people, both grants powers to and limits the powers of law enforcement officers. The authority of the Executive Branch, to which most law enforcement agencies belong, is specifically defined by the Constitution. So too are the rights, protections and privileges that are guaranteed to the people. The focus of the Constitution is the relationship between the government and the peopl e. Therefore, it applies to government action, not private conduct. Federal law enforcement officers must affirm their personal commitment to this contract between the people and the government. That is why federal law enforcement officers and agents ta ke a solemn oath to “preserve, protect and defend the Constitution of the United States of America . . .” They must know constitutional law not only to protect the rights of one citizen from infringement by another, but especially to ensure that while acti ng as an arm of_______________ Constitutional Law 60 the federal government, the constraints and limitations imposed by the Constitution are not violated.

V. Organization of the Federal Government

Among the significant innovation s of the Constitution were the separation of powers and the creation of a system of checks and balances. The authors of the Constitution, distrustful of a strong centralized government, divided the federal authority among three separate but equal branches of
government.

A. The Legislative Branch

Another innovation of the Constitutional Convention was the division of the Congress into two houses, an upper house (The Senate) with equal representation for each state and a lower house (The House of Representatives) with proportional representation based upon population. This provision,

sometimes called the Gre at Compromise, was a solution to the conflicting demands for equal representation by the small states (Patterson Plan) and proportional representation by the large states (Virginia Plan).

The Legislative Branch (Congress) enacts laws as provided

in Articl e I, Section 8. This section provides the specific powers of the legislative branch, which are enumerated below:

**•** The power to lay and collect taxes, duties, imposts and excises, and the power to provide for the common defense and general welfare.

**•** The aut hority to borrow money on the credit of the

United States.

**•** The power to regulate interstate and foreign

commerce.

**•** The power to establish rules of naturalization and laws relating to bankruptcies._______________ Constitutional Law 61 **•** The authority to coin money, to regulate the value

there of, and to fix the standards of weights and

measures.

**•** The power to provide for the punishment of counterfeiting the securities and current coin of the

United States.

**•** The authority to establish post offices and post

roads.

**•** The jurisdiction to secure to a uthors and inventors the exclusive right to their respective writings and

discoveries.

**•** The prerogative of establishing judicial tribunals inferior to the Supreme Court.

**•** The right to make and enforce laws related to piracies and felonies committed on the high seas and offenses against the laws of nations.

**•** The power and responsibility for declaring war and making rules concerning captures on land and

water.

**•** The responsibility to raise and support armies

.

**•** The power to provide and maintain a navy.

**•** The aut hority to make rules for the government and regulation of the land and naval forces.

**•** The power to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions.

**•** Limited authority to organize, arm, disc ipline and

train the militia._______________ Constitutional Law 62 **•** The exercise of exclusive legislative control over the seat of government in Washington and other federal

installations.

B. The Executive Branch

The Executive Branch (The President), to which most law enforcement agencies belong, implements and enforces the law as provided in Article II. The President also has collateral powers whi ch include duties as commander in chief of the military, the ability to enter into treaties with foreign nations, the power to veto acts of Congress, to grant pardons for federal crimes, and to appoint members of the administration, such as

cabinet members , Ambassadors, United States Attorneys, and United States Marshals, as well as all Federal Judges from the Supreme Court down to the Federal District Courts.

The Vice President is second in command, with the

Cabinet below. The cabinet consists of the Sec retaries of the various major Departments, such as Homeland Security, State, Treasury, Justice, Defense, Interior, and Health and Human Services. The President is charged with the execution and enforcement of the laws of the United States. The Department of Justice is the executive department most concerned with the litigation involving these laws.

The chief executive officer of the Department of Justice is the Attorney General, who supervises all United States Attorneys and all federal criminal cases, un less a specific law to the contrary exists. Duties of the Attorney General include prosecuting criminal actions and prosecuting or defen ding in

civil actions in which the United States is concerned. United States Attorneys are, as with the Attorney Gene ral, appointed by the President, with the advice and consent of the Senate. The United States Attorney is the principal officer of the Department of Justice in each judicial district. A United States Attorney is appointed for a term of four years and is s ubject to removal by the President. Assistant United States Attorneys are appointed by the Attorney General and are subject to removal by the Attorney General._______________ Constitutional Law 63 C. The Judicial Branch

The Judicial Branch (The Court) interprets laws through its decisions as provided in Article III. The Constitution is unique in that Article III establishes only one court, the Supreme Court. As already mentioned above, all inferior courts are created by act of Congress.

The Supreme Court is composed of nine members appointed by the President with the consent of the Senate. The Constitution does not set the number of justices that co nstitute the Supreme Court. The number is determined by Congress. Justices serve for life on good be havior.

The Supreme Court has both original and appellate jurisdiction. The Supreme Court’s original jurisdiction is very narrow, extending only to case s involving ambassadors, public ministers, consuls and those in which a State is a party. In practice, the Supreme Court delegates its original jurisdiction to the lower courts. The Supreme Court has appellate jurisdiction in all cases arising under the Constitution, the laws of the United States, or treaties made by the federal government, and citizens of different states. The Supreme Court’s appellate jurisdiction may be further limited by “such Exceptions, and under such Regulations as the Congress sh all make.”

There are thirteen (13) C ircuit Courts of Appeal. Courts of Appeal have appellate jurisdiction only. A case is never taken to a Circuit Court of Appeals initially.

There are ninety

- four (94) United States District Courts.

District Courts ha ve original jurisdiction in all cases involving offenses against the United States and in certain civil cases where the United States is a party or where jurisdiction is based on the amount in controversy and a diversity of citizenship.

D. A System of Che cks and Balances

In order to ensure that no single branch of government becomes excessively strong, a system of checks and balances_______________ Constitutional Law 64 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 th em. Once confirmed, the Justices serve for life or good

behavior.

**•** The President can be impeached and tried by the Congress, as can all federal judges, including Justices of the Supreme Court.

**•** The Congress can establish Federal Courts inferior

to the Su preme Court and, with certain limitations, can regulate the appellate jurisdiction of the Supreme Court.

**•** Only Congress can appropriate the funds necessary to run the government.

**•** Congress can pass laws and even appropriate the money to run the government, but the President can choose not to implement and enforce the laws.

**•** The Supreme Court can declare laws passed by Congress and signed by the President to be unconstitutional. There is no specific authority in

the Constitution for this power. In 1803, the Supreme Court itself held that the United States

Constitution authorized it to declare an act of Congress unconstitutional. That case, Marbury v.

Madison , involved an act of Congress that_______________ Constitutional Law 65 expanded the original jurisdiction of the Supreme

Court. The Cour t said that a law that is repugnant

to the Constitution is void.

VI. Amendments to the Constitution

The Constitution provides many safe guards through the checks and balances system against an excessively strong and potentially abusive central government. However, many scholars speculate that the Constitution would not have been ratified but for assurances that one of the first priorities of the new government would be the passage of a Bill of Rights . In fact, although ratification passed in each state, votes in several

sta tes were very close. Twelve proposed amendments were submitted for ratification in late 1789. Proposed amendments 1 and 2 failed ratification, although number 2 eventually passed and became the 27th Amendment. The Bill of Rights is embodied in proposed amendments 3

- 12, the first Ten Amendments of the Constitution, which were ratified in 1791. Of particular interest to law enforcement officers are the First, Fourth, Fifth, Sixth, (and later, the Fourteenth) Amendments of

the Constitution. These amendmen ts proscribe government conduct that infringes on the rights established there. Those amendments do not deal with private actions that, if committed by government agents, officers

, or employees, would clearly violate those rights.

A. First Amendment

[Note: Students in LMPT will skip subsections VI A.2 “Speech” and VI A.3 “Peaceful Assembly,” below, an d read FIRST AMENDMENT Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of t he press; of the right of the people to peaceably assemble, and to petition the government for a redress of grievances._______________ Constitutional Law 66 secti on VIII, “Controlling Speech under the First Amendment,” instead.]

The First Amendment protects personal belief, opinion,

and action

. It addresses four basic freedoms that are necessary for a free society functioning within a democratic government.

Tho se rights are freedom of religion, freedom of speech, freedom

of the press, and the dual right to assemble peaceably and to petition the government. Are these rights absolute, or can the government regulate these freedoms? It has generally been held by t he Supreme Court that a balance is required between First Amendment freedoms and the powers of a go vernment to govern effectively. Supreme Court decisions throughout the 20th century balanced First Amendment rights with the requirements of public order, an d the Supreme Court has removed certain conduct from First Amendment protections. Even these basic freedoms are subject to regulation. Federal

law enforcement is often on the front line of the conflicts between this government regulation and the exercise of these basic freedoms by the people.

1. Religion

Two provisions, the establishment clause and the free exercise clause, protect freedom of religion. The Establishment

Clause prohibits the government from establishing a religion or showing favoritism to a particular church or sect. We talk now in terms of “separa tion of church and state.” Government action, including laws enacted by the government, must have a secular purpose; that is, t he action must have a primary effect that neither advances nor inhibits religion.

The Free Exercise Clause prevents the government from interfering with religious practices. The people have a right to

believe whatever they want; however, problems arise when those beliefs endorse criminal conduct. A law with a legitimate secular purpose (not targeted at religion) may incidentally affect religious practices without violating the First Amendment. For example, criminal statutes pros cribing possession of controlled substances are not aimed at religion; but may incidentally affect_______________ Constitutional Law 67 some Indian religious practices because they prohibit the use and possession of peyote.

2. Speech

[Students in LMPT will skip this subparagraph and read section VIII, instead.]

The people have a First Amendment right to express their thoughts and ideas. Expression, even that which is offensive

and “anti

- American,” is protected against government

interference under the First Amendment unless th e government can prove that it falls within an unprotected category. Some of those unprotected categories of speech follow:

( a ) Speech constituting a clear and present danger

Yelling, “fire!” in a crowded theatre is likely to get someone trampled to death. Knowingl y conveying false information about an impending peril is punishable. For example, a joke about a bomb on an airplane is proscribed under 18 U.S.C. § 32(a)(6). (A more complete discussion is at paragraph VIII F. 4)

(b) Advocating imminent lawless action

Historically, the people have not only criticized the United States, but advocated its laws be ignored and government overthrown. Sometimes called political speech, advocacy of this nature in public forums is protected under the First

Ame ndment, unless it is directed to incite or produce imminent lawless action and is likely to incite or produce such action. (A more complete discussion is at paragraph VIII F.3)

(c) F ighting words

Fighting words are “those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. ” More than profanity, they are an invitation to fight._______________ Constitutional Law 68 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 f ighting words doctrine is at its narrowest, if it exists at all, with respect to speech d irected at public officials like police officers. Police officers are expected to exercise a higher degree of restraint than the average citizen. Moreover,

Americans have a Constitutional right to criticize their government and government officials. In Lewis v. City of New

Orleans , the Supreme Court found unconstitutional a municipal ordinance that made it a crime “for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while engaged in the performance of duty.” Freedom to verbally oppose or challenge police action without thereby risking arrest is one of the principal characterist ics by which we distinguish a free nation from a police state. In essence, “contempt of cop” is not a crime. (A more complete discussion is at paragraph VIII F.1)

(d) O bscenity

The Supreme Court defined obscenity this way: “whether to the average person, applying contemporary community standards, the dominant theme of the m aterial taken as whole appeals to prurient interests.” “Prurient” means material having a tendency to excite lustful thoughts, below normal or healthy sexual desires. It’s grossly offensive to modesty, decency, or propriety. It shocks the moral sense, b ecause 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 “ac tual children” under the age of 18 engaged in sexually explicit acts. Ashcroft v. Free Speech Coalition

. Several federal statutes proscribe obscenity. Title 18 U.S.C. § 2252A proscribes possession of child pornography that has been transported in

inters tate commerce. Title 18 U.S.C. § 1460 prohibits_______________ Constitutional Law 69 possession with intent to sell or the sale of any obscene material on federal property.

(e) Fraudulent misrepresentation

Fraud, perjury, libel, and slander receive no protection under the First Amendment. A fraud is a misrepresentation of a material fact and is intended to cheat people out of their property. Libel and slander are not protected; n o one may knowingly utter (slander) or write (libel) false and malicious

statements about another . P erjury is l ying under oath.

(f) True threats

A true threat is a crime. T he 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

circumst ances that would cause a reasonable person to believe that he is serious about executing the threat. A more complete discussion is at paragraph VIII F.2.

3. Peaceful Assembly

[Students in LMPT will skip this subp aragraph and read section VIII, instead]

The people may attempt to assemble and exercise their First Amendment freedoms on private property, non

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

in these areas is described below.

A speaker does not have a First Amendment right to express his views on another person’s p rivate 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 tr espassing.

Non

- public forums are under government control; but, are not open for public expression. Military bases are non

-_______________ Constitutional Law 70 public forums. The Federal Law Enforcement Training Center is another. The government can prohibit demonstrations on

FLETC for se curity reasons and to reduce student distractions.

Public forums are where the people have traditionally

exercised First Amendment freedoms. First Amendment freedoms are highest in public forums. Public forums include public streets, si dewalks, and park s. The U.S. Park Service has jurisdiction over one of the nation’s most

- frequented public

forums

- the National Mall.

The people, however, do not have unfettered access to public forums. Demonstrators cannot march down a public street anytime they wish. The government can require demonstrators to get a permit. Permits may restrict the time, place, and manner of expression. Time, place, and manner restrictions have the incidental by

- product of interfering with the speaker’s message; however, they will be upheld if they serve a significant government purpose and are not intended to restrict the speaker’s message. (A more complete discussion is at paragraph VIII D.2.)

B. Fourth Amendment

The Fourth Amendment prohibits unreasonable government searches and seizures. These rights are covered in more detail in a following chapter; however, some general principles are described below.

Th e Fourth Amendment protects “the people,” meaning those having a substantial connection to the United States. FOURTH A MENDMENT 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 part icularly describing the place to be searched, and the persons or things to be seized._______________ Constitutional Law 71 People inside the United States, its territories, or possessions have such a connection, whether they are U.S. citizens or not.

U.S. citizens re ceive Fourth Amendment protections, whether in the United States or abroad. Still, not everyone is protected. For example, the Fourth Amendment does not apply when a DEA agent searches a foreign national’s property in a foreign
country.

The Fourth Amend ment protects people from instruments or agents of the federal or a state government. A Naval Criminal Investigative Service agent is a federal agent and must follow the Fourth Amendment when searching a U.S. Marine’s property, whether that property is in the U.S. or overseas. However, the Fourth Amendment does not protect the people from purely private searches. A nosy neighbor, for example, does not trigger Fourth Amendment protections.

The Fourth Amendment protects the people from unreasonable govern ment searches and seizures. The Fourth Amendment applies whenever agents s eize a suspect’s property

, seize the suspect

, search the suspect or his property

, or do all of those things. All searches and seizures must be reasonable.

A “search” under the Fou rth Amendment is defined as a government intrusion into a place where the people have a reasonable expectation of privacy (e.g., a house). Once those two conditions are met, the search must be reasonable. To be reasonable under the Fourth Amendment, gove rnment agents are normally required to get a warrant supported by probable

cause.

“Probable cause” means there are facts and circumstances that would lead a person of reasonable caution to believe that evidence of a crime will be located in the place to

b e searched. Agents are required to gather these facts and present them to a judge in a search warrant application. The application has three parts: where the agents intend to search; what they are searching for; and, why that evidence is located in the p lace to be searched. The judge will review the search warrant application and issue the warrant, provided the judge_______________ Constitutional Law 72 finds sufficient probable cause that evidence of a crime will be located in the place to be searched. A federal or state court judge of re cord in the district where the property is located may

authorize the search.

Warrantless searches and seizures of property are unreasonable, unless the agent can identify a reasonable exception. There are several exceptions to the warrant requirement. C onsent is one. With voluntary consent from someone with either actual or apparent authority over the place to be searched, agents do not need a warrant.

What happens if agents search without a warrant or a reasonable exception to the warrant requirement? With few exceptions, the evidence is suppressed. The “exclusionary rule” is a judicially created remedy that prevents the government from using evidence obtained in violation of the Constitution to convict the defendant at trial. Again, the exclusionar y rule is judicially created; the rule does not appear in the Constitution. The Supreme Court first applied the rule in 1914 for a Fourth Amendment violation, but the rule has been expanded t o most
Fift h and Sixth Amendment violations as well.

C. Fifth Amendment

Many concepts covered under the Fifth Amendment will be addressed in later legal courses, but several terms deserve explanation. FIFTH AMENDMENT No person shall be held for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy o f 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._______________ Constitutional Law 73 1. Double Jeopardy

Double jeopardy means to be tried twice, by the same sovereign, for the same offense. The Constitution prohibits prosecutors from repeated prosecutions until a conviction is ultimately obtained. Thus, once the accused is acquitted, the same sovereign cannot retry the defendant for the same crime, even if he confesses to his guilt or new evidence is found. The following situations, however, are NOT double jeopardy:

(a) D ual S overeignty

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

two sovereigns, can be tried by both. For example, someone who robs a federally insu red bank in Brunswick, Georgia, can be prosecuted by the state and, regardless of the state court verdict, can be prosecuted again for the same acts in federal

district court.

(b) M istrial

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 aga in. A mistrial might be declared in any case in which the judge feels the ends of justice cannot be served. For example, jury tampering and a hung jury are all grounds for a mistrial. If, however, the mistrial is deliberately caused by the prosecution, double jeopardy may attach, preventing retrial.

(c) N olle prosequi ( nol pros )

Nolle prosequi is a formal entry upon the r ecord by the prosecutor by which he or she declares that the government

“will no t 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 pro s is made before the swearing of the jury in a jury trial or before the swearing of the first witness in a bench trial. Once the above

-_______________ Constitutional Law 74 mentioned events have occurred, jeopardy attaches.

(d) R emand of the case

A remand is when an appellate court sends a case back to the trial court due to an error committed in the original trial.

2. Self

- Incrimination

The self

- incrimination clause of the Fifth Amendment is covered in depth in a following chapter, but some general observations are appropriate. While the Fourth Amendment concerns government searches for physical evidence, the Fifth

Amendment’s self

- incrim ination (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 s uspect 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 a nd therefore, do not present a Fifth Amendment (SI) issue.

The SI clause affords protection from federal and state government agents. Agents cannot compel suspects to incriminate themselves in a U.S. criminal trial. However, if there is no potential for future prosecution, the SI clause is inapplicable. For example, a person can be compelled to answer an agent’s questions about a crime if the statute of limitation for that offense has expired, the defendant was acquitted on that charge, or immunity from prosecution is granted.

The Fifth Amendment SI cl ause protects suspects from government coercion. Statements must be voluntary. Miranda warnings protect suspects from the coercive aspects of a police dominated atmosphere. A police dominated atmosphere occurs when a known police officer interrogates a suspect in a custodial setting. Prior to such interrogation, the suspect must

be advised of his Miranda rights._______________ Constitutional Law 75 3. Grand Jury Indictment

All “infamous” crimes must be prosecuted by grand jury indictment. “Infamous” means felony offenses. The accused can waive indictment in all but capital cases. Law en forcement agents will often be called upon to testify at grand jur ies

.

4. Due Process of Law

No person may be denied life, liberty or property without

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

pro cedures incorporated into our judicial system and designed to ensure fundamental fairness and to protect private rights. It directly impacts several important law enforcement practices

such as show

- ups, line

- ups, and photo arrays. If they are overly sugge stive, they violate this provision of the Fifth

Amendment.

D. Sixth Amendment

Many of the federal criminal procedural rules have their origins in the Sixth Amendment. It is here that we find the

constitutional bases for several important rights:

1. Speedy Trial

The Sixth Amendment affords an accused the right to speedy trial . A s a result of the Speed y Trial Act of 1974, 18 U.S.C. § 3161, all persons charged with a federal crime must be SIXTH AMENDMENT In all criminal prosecutions, the accused shall enjoy the righ t 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 co nfronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel

for his defense._______________ Constitutional Law 76 brought to trial within specified timeframes. Generally, trial must commence within 100 days after arrest. Excludable delays are possible; however, officers must be a ware of the time limits. They are covered in depth in Federal Court Procedures.

2. Confrontation of Witnesses

The Sixth Amendment affords the accused the right to

confront the witnesses against him. This right provides the accused with the most effective way of challenging the accuracy of testimony, and it is the only fair way to permit a jury to decide what weight it will give the testimony.

3. Compulsory Pr ocess

The Sixth provides the defendant with the power to subpoena witnesses in his behalf, thus balancing the
prosecut ion’s power to subpoena witnesses against the accused.

4. Assistance of Counsel

The defendant has a Sixth Amendment right to assistance

of counsel regarding the offenses with which he is charged. This right begins when the accused is indicted by grand jury, an information is filed by a prosecutor, or at the initial appearance. Any of those three events is said to commence the adversarial process and triggers the right. Once triggered, the accused has the right to counsel at all critical stages of the prosecution. A critical stage includes post

- indictment police interrogation about the indicted offense. As a result, the Sixth Amendment often has the ancillary effect of causi ng the accused to invoke his privilege against self

- incrimination.

5. Informed of the Nature and Cause of Charges

This right forms the basis for the Initial Appearance . I t 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 77 6. Venue

Jurisdiction is the power and authority of a court to deal with a person or particular subject matter. Original jurisdiction for the prosecution of federal crimes rests with the Federal

District Court. Venue deals with the actual location of the trial. Absent extraordinary circumstances, venue is proper (the trial will take place) in the State and district where the crime

was committed.

E. Eighth Amendment

The purpose of bail is not to punish, but rather to allow the pretrial release from custody of a person who is presumed innocent until proven otherwise. At the same time, bail provides the government with a reasonable assurance that the defendant will, in fact, appear at the next stag e in the judicial proceedings. What is considered to be “excessive” is difficult to determine, but generally the bail should be the absolute minimum that will reasonably assure the appearance of the accused (see 18 U.S.C. § 3141 et seq.). Many factors ma y be taken into consideration by a judge or magistrate when setting bail. Among them are:

**•** The seriousness of the crime.

**•** Whether a weapon was used.

**•** Whether the defendant attempted to avoid arrest.

**•** Whether the defendant is a drug addict, alcoholic,

or m entally disturbed.

**•** Whether defendant has a family. EIGHTH AMENDMENT Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted._______________ Constitutional Law 78 **•** Employment history of the defendant.

**•** Financial status of t he defendant, including real

and personal a ssets.

**•** Prior criminal record , especially prior record of appearance if previously released on bail.

The Bail Reform Act of 1984 changed the entire perspective on this issue. Rather than the accused being required to show why release is appropriate, the government must show sufficient reason why the accused should remain in custody. You must investiga te and develop evidence relevant to

this critical issue. You must be prepared to explain the government’s position regarding pretrial release and be able to articulate the evidence supporting the recommendation to the Magistrate Judge at the Initial App ea rance or bond hearing.

F. Fourteenth Amendment

All of the preceding amendments fall within the Bill of Rights. Adopted in 17 91, 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 Bi ll of Rights and makes them applicable to the states. Today, if a federal agent conducts an unreasonable search and seizure, that agent violates the Fourth Amendment. If a state agent does so, he violates the Fourth Amendment as made applicable to the

st ates through the Fourteenth Amendment

.

VII. Criminal Justice Components from the Constitution

Various components of the criminal justice system may be traced directly to the Const itution 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_______________ Constitutional Law 79 Amendment protects people from the unreasonable search and seizure of their persons and properties. The Fifth Amendment includes the rights to be free from compelled self

- incriminating testimony, to generally have felony cases presented to grand juries for indictment, to be free of double jeopardy and to enjoy the fundamental fairness of due process. The Sixth Amendment guarantees the defendant rights at trial. For instance, the accused is assured of “a speedy and public trial,” an impartial jury, the venue for a trial, the right to be informed

of the charges, to confront witnesses, to subpoena witnesses and to have the assistance of counsel. The Eighth Amendment protects the defendant from excessive bail or cruel and unusual punishment.

VIII. Controlling Speech under the First Amendment

[This section is intended for LMPT students.]

A. Generally

The people have a First Am endment right to express their thoughts and ideas in public forums. Expression can be offensive, even “anti

- American”; nonetheless, expression is protected unless the government can prove it falls within one of the unprotected categories in paragraphs E and F, below. Rig hts of expression are greatest in public forums. Public forums are places where the people have traditionally exercised their First Amendment rights. National parks are public forums, which is why Land Management students receive this

instruction.

B. Go vernment Action

The First Amendment provides that “Congress shall make

no law ... abridging the freedom speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.” Literally, the First Amendment restricts Congress; in practice, it protects the people from any branch of government, state or fe deral._______________ Constitutional Law 80 The First Amendment falls within the Bill of Rights. Adopted in 1791, the Bill of Rights limits the power of the federal government. Following the Civil War, Congress enacted the Fourteenth Amendment, which selectively incorporates the

fundamenta l rights in the Bill of Rights and makes them applicable to the states. Today, if a federal agent unduly restricts expression, that agent violates the First Amendment. If a state agent does so, he violates the First Amendment as made applicable to the st ates through the Fourteenth. Private action, however, never triggers First Amendment protections, no matter how unreasonable it might be.

C. Expression

The First Amendment rights of freedom of speech or of the press; or the right of the people peaceably to assemble are often grouped together and called freedom of expression. The First Amendment protects the people from unreasonable government restrictions expressing their thoughts and ideas.

The people have expressed themselves through the written word, the spoken word, symbols, and conduct. The Federalist Papers, for example, were a series of articles written by Alexander Hamilto n, James Madison, and John Jay to gain support for the Constitution. Dr. Martin Luther King’s “I Have a Dream” speech was a catalyst behind the Civil Rights Act of 1964. Symbols and conduct also receive First Amendment protection when there is intent to convey a particular message and the likelihood is great that the message will be understood by those who view it. John F. Kennedy Jr. saluting the flag draped coffin of his father comes to mind.

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

belief s about religious and racial equality; but, there was a time when that issue was hotly debated. Leading one side was Dr. King. In August 1963 on the steps of the Linc oln Memorial he spoke about his dream, “...that one day, down in Alabama,

...little blac k b oys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.” King mentioned Alabama for a purpose, because on the other side of_______________ Constitutional Law 81 the debate was George Wallace, the elected governor of

Alabama. At his inau gural address that year, the Governor assured the people there would be “...segregatio n today... segregation tomorrow... segregation forever.”

From a law enforcement perspective, the point to remember is this: the First Amendment protects both sides

– D r. King’ s and Governor Wallace’s. It’s not the government’s place to control ideas because they are wrong, offensive, or anti

American. Justice Holmes stated, there is to be a “free trade in ideas,” and the truth will become accepted through the “competition of ideas.” In essence, the Constitution gives Americans the right to express their ideas, and the responsibility to pick the best one. Those ideas, whether good, bad, or ugly, are protected unless shown likely to produce a clear and present danger of seriou s 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

C anadian 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 Amer ican flag with kerosene, setting it on fire, and chanting, “America, the red, white, and blue, we spit on you.”

**•** Wearing and displaying symbols of racial superiority, like the Nazi uniform and Swastika.

D. Government Restrictions

Historically, the government has attempted to restrict expression for two reasons._______________ Constitutional Law 82 1. Content

- Based Restrictions

First, the government may not like a speaker’s message or may fear that the idea will offend the listener and try to restrict

it somehow. These are “content

- based” restrictions. They are

intended to control the communicative impact of the message

on the listener. Content

- based restrictions are subject to strict scrutiny by the courts and almost invariably struck down. (Again, it’s not the place of the government to restrict ideas,

even offensive ones.)

“When the Nazis Came to Skokie

– Freedom for Speech We Hate” by Philippa Strum provides an excellent example of
government, content

- based restrictions on speech. In the late 1970’s, the Chicago suburb of Skokie was predominately

Jewish. One out of every six Jewish citizens was a survivor or directly related to a survivor of the Holocaust. When a neo

- Nazi group announced its intention to demonstrate there in 1977, the city enacted ordinances prohibiting “public display of markings and clothing o f 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 st r uck down by the courts. Ironically, a Jewish Attorney working for the American Civil

Liberties Union won the case for the Nazis.

Finding government action content

- based is normally its

de ath 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

betwe en 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 examp le, if the police can control the crowd to avert violence, the restriction is not narrowly drawn, and the court tosses it into the unconstitutional scrap heap. (More_______________ Constitutional Law 83 often the Government is unable to prove to the court why the police cannot control the cr owd.)

The following are examples of unconstitutional, content

based government restrictions intended to control the

communi cative impact on the listener.

**•** Arresting a protester at a parade for shouting, “F

--- Canada” as the Canadian flag passed.

**•** A Texas statute that prohibited the desecration of a state or national flag in a way which seriously offends one or more persons likely to observe that

act.

**•** Reducing a Ku Klux Klan march in Washington

D.C. from 14 blocks to 4 based on the crowds potentially viole nt reaction to the Klan’s message.

2. Content

- Neutral Restrictions in Public Forums

The second reason the government may restrict expression has nothing to do with the speaker’s message.

Content

- neutral r estrictions seek to avoid some evil unconnected to the message. Because they are not aimed at controlling ideas, content

- neutral restrictions receive less scrutiny and are much more likely to pass constitutional

muster.

Content

- neutral restrictions allow the government to control expression in public forums . There are three potential forums or places for expression

– private property, non

- public forums, and public forums. A speaker does not have a First Amendment rig ht to express his views on another’s private property. A grocery store owner, for example, can stop an anti

war 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

-_______________ Constitutional Law 84 public forums. The Federal Law Enforcement Training Center is another. The government can prohibit demonstrations on FLETC for security reasons and to reduce student distractions.

Public forums are where the people have traditionally

exercised F irst Amendment freedoms. They include public streets, sidewalks, and parks. The U.S. Park Service has jurisdiction over one of th e nation’s most

- frequented public forums, the National Mall.

Nonetheless, people do not have unfettered access to public for ums . Demonstrators cannot march down a public street anytime they wish. The government can requi re demonstrators to get a permit. Permits may restrict the time, place, and manner of expression. Time, place, and manner restrictions may have the incidental by

- product of interfering with the speaker’s message; however, they will be upheld if they serve a significant government purpose, are enforced in a

content

- neutral manner, and do not allow government agents

to use their own discretion about when to issue a permit. Agents must strictly adhere to the guidelines in the permitting process. Some examples follow:

**•** The U.S. Park Service may require an organization to obtain a permit that restricts the time of its

de monstration in order to prevent one demonstration from interfering with another.

**•** The Park Service’s permitting process may restrict where the demonstration takes place in order to prevent demonstrations from blocking traffic.

**•** The permit may require sound amplification devices (bull horns) to remain under a certain amplification level in order to prevent the demonstration from unduly disturbing other people using the park.

E. Unprotected Conduct

Conduct receives le ss First Amendment protection than other types of expression for a couple of rea sons. First, the_______________ Constitutional Law 85 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

d estruction of another’s property is not by any stretch of the imagination protected expression. Moreover, in criminalizing such behavior, the government’s intent is to stop destructive behavior, not ideas. Examples of unprotected conduct follow:

**•** A defen dant may be charged with 18 U.S.C. § 111, assaulting a U.S. Marine on account of his service in Iraq. The statute is content

- neutral because it’s intended to protect federal employees, not thoughts

and ideas about the war.

**•** A defendant may be charged with burning an American flag in violation of an ordinance prohibiting outdoor fires. The ordinance is intended to stop forest fires, not demonstrators from dishonoring the flag.

**•** A state criminal statute may prohibit cross burning in a public place if done “ with the intent of intimidating any person or group of persons.” The statute distinguishes protect ed , albeit offensive expression (symbols identifying the Ku Klux Klan), from criminal conduct (intentional intimidation)

.

F. Unprotected Speech

While other forms of expression (speech, words, symbols, and pictures) receive higher protection than conduct, they, too, may fall outside the Constitutional umbrella. Unprotected speech resembles unprotected conduct. Like an assault, it’s typically not part of any exposition of ideas. Even if the speech does convey some idea in a remote sense, it produces a clear and present danger of serious, substantive evil that rises far above just offending someone. Still, the Supreme Court keeps these unprotected categories of speech tightly circumscribed._______________ Constitutional Law 86 1. Fig hting Words

Fighting words are p ersonally 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, a re not fighting words and are, therefore, protected.

Fighting words are often proscribed under disorderly conduct statutes. For instance, 36 C.F.R. 2.34 prohibits speech that is intentionally threatening or menacing. For example:

**•** Sheriff Deputies had p robable cause to arrest the defendant for fighting words. From a short distance, the defendant faced the victims, repeatedly yelled “f

--- you,” called one victim a “fat

son

- of

- a b

---- ,” and made clucking sounds like a chicken, as if one of the victims was afraid to fight. The court also considered that the night before, the

defendant had brandished a knife toward the victims, which increased the chance for violence. That the victims exercised restraint did not change

the result. A reasonable onlooker co uld believe that the defendant’s actions were a direct personal insult and an invitation to fight.

**•** However, a Nazi demonstrator is not using fighting words when he says to a crowd, “The Holocaust is a big lie, made up by the f

--- ing Jews.” Standing

alon e, these words are not an invitation to fight.

The fighting words doct rine is at its narrowest, if it exists at all, with respect to by speech directed at public officials l ike police officers. Police officers are expected to exercise a higher degree of restraint than the average citizen. Moreover,

Americans have a Constit utional 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_______________ Constitutional Law 87 wantonly to curse or revile or to use obscene or opp robrious language toward or with reference to any member of the city police while engaged in the performance of duty.” Freedom to verbally oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. In essence, “contempt of cop” is not a crime. For example:

**•** A woman telling a police officer, “You G

— d

--- mother f

--- ing police. I’m going to the Superintendent of P olice about this” is protected expression.

**•** An Arkansas state trooper was denied qualified immunity for a Constitutional tort after arresting the plaintiff for “flipping him off.” The trooper

violated th e plaintiff’s r ight to be free from

unreasonable sei zures because the gesture (signifying “f

--- you”) did not rise to probable cause that the plaintiff committed an offense.

**•** But, distinguish mere criticism of police action (contempt of cop) from actual interference with law

enforcement activities. A U.S. Park Service ranger was in the process of making an arrest, when the defendant (an onlooker) yelled statements of police brutality, “f

--- this, f

--- that, and this is f

--- ked.” The ranger told the defendant to back up. Instead,

the defendant clenched hi s fists, stuck out his chest, stepped forward, and yelled “f

--- you.” The court had no problem with the defendant’s verbal criticism, but sustained a conviction for violating 36 C.F.R. 2.329(a)(2)

– violating the lawful order of a government agent during law enforcement actions.

2. True Threats

While the people may criticize, they may not threaten

. Federal statutes that proscribe true threats are:_______________ Constitutional Law 88 **•** Title 18 U.S.C. § 115 states in part that “Whoever

- ...threatens to assault ... a Federal law enforcement officer (or a member of her immediate family) with

intent to ... interfere with such official ... while engaged in the performance of official duties, or with intent to retaliate against such official

.... It also prohibits a similar threat “on account of” the officer’s past service.

**•** Titl e 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 t o unlawfully damage or dest roy any building....

**•** Title 18 U.S.C. § 8 76(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 thre ats 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 threa t (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 seriou s about carrying out the threa t? Whether the defendant was serious, in fact, is not an element; however, an utterance in jest or conditioned on a variable that cannot occur (being younger)_______________ Constitutional Law 89 is not a threat. Moreover, the defendant need not communicate the threat to the intended victim; communicating the threat to a third party is s ufficient. And finally, the defendant does not have to spell out how he will hurt the victim. A reasonable person may believe that “I will make sure you spend time in the hospital” is a true threat. The following might be true threats under 18 U.S.C. § 115 if made under circumstances that would lead a reasonable person to believe the speaker was serious:

**•** The speaker tells a U.S. Park ranger during the execution of an arrest, “I’m going to kick your a

-- .” However, “I would kick your ass if I were sober ” is

not a true threat.

**•** The speaker sees a U.S. Park ranger at the mall and says, “You’re the stupid b

---- that arrested me two years ago. I’m going to kick your a

-- .”

**•** Defendant sees a U.S. Park ranger’s husband at the mall and says, “Your wife arrested me two years ago. I’m going to kick your a

-- .”

**•** The speaker sees a U.S. Park ranger’s husband at the mall and says, “Your wife arrested me two years ago. Neither of you will live to see Christmas.”

3. Advocating Imminent Lawless Action

Historically, people have not only criticized their country, but advocated that laws be ignored and the government overthrown. Government restrictions on speech that advocates

lawlessness is tightly c ircumscribed 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 lawlessnes s at some future time is protected. Secondly, the advocacy must be likely to incite or produce lawlessness. So even if the speaker advocates immediate lawlessness, the crowd must still be receptive to the

idea. Brandenburg v. Ohio . Some examples follow:_______________ Constitutional Law 90 **•** 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” poi nting 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 ba sed on a contingency that does not

incite imminent lawlessness: During a demonstration, a speaker yells, “The war in Iraq violates international law. Unless U.S. troops are pulled out of Iraq, we are going to come back and give President Bush a taste of what war is like and torch government buildings.” The crowd cheers in
agreement.

**•** Advocacy that is not likely to incite lawlessness: During a demonstration about the war in Iraq, a demonstrator yells, “There’s no way you’re going to make me go to Iraq. If they try to send me, the first guy I’ll shoot will be George Bush.” The crowd laughs.

Advocating lawlessness is sometimes called political speech. Although advocating lawlessness in public speech is generally protected; privately direc ting or soliciting that a crime

be committed is not.

4. Creating a clear and present danger

Imagine someone telephoning security personnel at a federal building and saying, “There’s a bomb in the building.” Imagine a p assenger on an airplane joking with a flight attendant and saying, “I’ve got a bomb.” Comments like those that place the public in fear of pending peril are punishable._______________ Constitutional Law 91 The bomb threat is punishable under 18 U.S.C. § 844, above. The joke (false informat ion) about the bomb on the airplane is punishable under 18 U.S.C. § 32.

5. Obscenity

The Supreme Court defined obscenity this way: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.” “Pr urient” 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 Spe ech

Coalition . Several federal statutes pr oscribe obscenity. Title 18 U.S.C. § 2252A proscribes possession of child pornography that has been transported in interstate commerce. Title 18 U.S.C. § 1460 prohibits possession with intent to sell or the sale of any obscene material on federal property._______________ Constitutional Law 92 

### NOTES_______________ Courtroom Evidence 93 

## Chapter Four

Courtroom Evidence

I. I NTRODUCTION

................................ ................................ ... 95

A. Forms of Evidenc e

................................ ............................... 95

B. Admissibility

................................ ................................ ....... 96

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

............ 96

II. T HE P ROCEDURAL S TAGES OF A C RIMINAL T RIAL

..................... 96

A. Suppression Hearings (Motions Hearings)

........................... 96

B. Voir Dire

................................ ................................ ............. 97

C. Opening Statements by Counsel

................................ ......... 97

D. The Case in Chief

................................ ................................ 97

E

. The Defense Case

................................ ................................ 97

F. The Rebuttal Case

................................ ............................... 97

G. Closing Argument

................................ ............................... 98

H. The Charge to the Jury

................................ ....................... 98

I. Sentencing

................................ ................................ .......... 98

J. Post

- Trial Proceedings

................................ ......................... 98

III. R ELEVANT E VIDENCE

................................ .......................... 98

A. The Requirement for Evidence to be Relevant

...................... 98

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

.............. 99

IV. D IRECT AND C IRCUMSTANTIAL E VIDENCE

............................. 101

V. L AY (A ND E XPERT ) W ITNESS T ESTIMONY

.............................. 102

A. Handwriting

................................ ................................ ...... 103

B. Voice

................................ ................................ ................. 103

C. Emotional Condition

................................ ......................... 103

D. Not Requiring Scientific or Technical Knowledge

............... 103

VI. W ITNESS C REDIBILITY AND I MPEACHMENT

........................... 103

A. Impeachment

................................ ................................ .... 103

B. Factors that Affect a Witness’ Credibility

........................... 104

1. Bias

................................ ................................ ............. 104

2. Motive to Fabricate Testimony

................................ ..... 104

3. Inability to Observe or Accurately Remember

............... 1 05

4. Contradiction

................................ ............................... 105

5. Prior Inconsistent Statements

................................ ...... 105

6. Specific Instances that Indicate Untruthfulness

........... 105

7. Prior Convictions to Show Untruthfulness (FRE 609)

... 106

VII. P RIVILEGES

................................ ................................ ..... 106

A. Holders of a Pr ivilege

................................ ......................... 107

B. Waiver of Privileges

................................ ........................... 107

C. Privileges and the Rules of Evidence

................................ . 108_______________ Courtroom Evidence 94 D. The Federal Privileges

................................ ....................... 108

E. Non

- Federally Recognized Privileges

................................ .. 108

F. The Attorney

- Client Privilege

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

G. The Husband

- Wife Privileges

................................ ............. 110

H. The Psychotherapist

- Patient Privilege

................................ 111

I. The Clergy

- Communicant Privilege

................................ .... 111

J. The Government

- Informant Privilege

................................ . 112

VIII. E VIDENTIARY F OUNDATION S

................................ ............... 113

A. Laying a Foundation

................................ ......................... 114

B. Marking/Tagging Evidence

................................ ................ 114

C. Chain of Custody

................................ .............................. 114

D. Legal Admissibility and Preserving Trace Evidence

Characteristics

................................ ................................ .. 115

E. Condition of the Evidence a t the Time of Trial

................... 115

IX. B USINESS R ECORDS AND P UBLIC D OCUMENTS

....................... 116

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

........................ 116

1. An Original

................................ ................................ .. 117

2. Duplicates

................................ ................................ ... 117

B. Self

- Authentication

................................ ........................... 117

1. Public Records and Documents

................................ ... 118

2. Business Records

................................ ........................ 118

C. Hearsay and Public Records and Business Records

.......... 119

X. H EARSAY

................................ ................................ ........ 119

A. Hearsay Defined

................................ ................................ 119

B. Hearsay Examples

................................ ............................ 119

C. Applicability of the Hearsay Rule

................................ ....... 120

D. Reason for the Hearsay Rule

................................ ............. 120

E. What is a Statement?

................................ ........................ 120

F. Truth of the Matter Asserted

................................ ............. 120

G. Non

- Hearsay

................................ ................................ ..... 121

1. Statements of the Defendant

................................ ........ 121

2. Other Statements

................................ ......................... 121

XI. E XCEPTIONS TO THE H EARSAY R ULE

................................ ... 121

A. Excited Utterances

................................ ............................ 121

B. Statements for Medical Diagnosis or Treatment

................ 122

XII. S TATEMENTS , R EPORTS AND C OURTROOM T ESTIMONY

........... 122

XIII. A UTHENTICATING I NFORMATION C ONTAINED IN C OMPUTERS

.... 123

A. Involving Computer Forensics Experts

.............................. 123

B. Rules of Evidence Issues when Authenticating “Digital (or Electronic) Evidence”

................................ ........................ 124

C. Admissibility of Digital Evidence

................................ ....... 124

D. The Best Evidence Rule Requirement for an “Original”

...... 125

E. Hearsay Issues

................................ ................................ .. 125_______________ Courtroom Evidence 95 I. Introduction

Evidence is the backbone of every criminal prosecution. Unless evidence is properly collected, preserved, and presented,

the evidence will not be admissible in court, and the jury cannot consider it no matter how important or powerful it may be. To ensure that evidence is collected and preserved in a way that it can be admitted, you must have a general appreciation of some

fundamentals of the Federal Rules of Evidence. 1

The jury decides what to do with the evidence that is admitted at trial and how much weight

- consideration

- to give it. The jury may consider the evidence as powerful proof or they might disregard it all together. C ollecting evidence in a way that complies with the Federal Rules of Evidence makes the evidence more convincing to juries.

The law enforcement community uses the word “evidence” in many ways. For purposes of this Chapter, evidence refers to anything that either side

- the prosecution or the defense

- offers in court to prove or disprove something.

A. Forms of Evidence

Evidence comes in several forms:

**•** Testimonial. A witness takes the stand, is placed under oath, and answers questions.

**•** Real. Real evidence is physical

- it is something you can actually touch or see. Items that are found, collected, seized or otherwise obtained

become exhibits and can be offered into evidence. Guns, drugs, or documents are

common forms of real evidence. Real evidence will

be given an exhibit number when offered into evidence (Prosecution Exhibit ______; Defense Exhibit_______).

1 All cite d Federal Rules of Evidence can be found in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal

Rules of Evidence .”_______________ Courtroom Evidence 96 **•** Demonstrative

. Demonstrative evidence consists

of i tems that demonstrate or illustrate something to the jury such as models, charts, and graphic aids.

B. Admissibility

The judge decides the admissibility of th e evidence. When evidence is offered, the other party may object. If the objection is overruled, the evidence is received and the jury may consider it in deciding the verdict. If the objection is sustained, the evidence is not admitted and the jury may not consider it. The judge applies the Federal Rules of Evidence (FRE) in deciding whether to admit evidence.

C. Applicability of the Federal Rules of Evidence

The FRE apply only to trials, and with the exception of privileges, they do not apply at the initial appearance, detention

and identity hearings, the preliminary hearing, arraignment, Grand Jury hearings, sentencing proceedings, and appeals.

The FRE also do not apply to what information officers may consider when investigating a case. For example, officers may consider hearsay information when conducting an investigation or deciding whether there is reasonable suspicion or probable cause.

II. The Procedural Stages of a Criminal Trial

A. Suppression Hearings (Motion Hearings)

If there is evidence one side does not want the jury to hear or see, they will file a motion to suppress . Most often, it is the defense that files suppression motions and usually because they claim that evidence was unlawfully seized or a confession improperly obtained. Law enforcement officers frequently testify at suppression hearings. The jury is not present and the judge

will decide whether the evidence will be recei ved into evidence and go to the jury._______________ Courtroom Evidence 97 If the judge grants a motion to suppress, the jury will not know about the evidence. If the judge denies a motion to suppress, the evidence will go to the jury.

B. Voir Dire

During voir dire the lawyers question the potential jurors and the jury is selected.

C. Opening Statements by Counsel

At this stage lawyers tell the jury what they expect the evidence will show. The defense may reserve their opening statement until after conclusion of the prosecution’s case. These statements by counsel are not evidence.

D. The Case

- in

- Chief

The prosecution’s “case

- in

- chief” is also known as the

case on “the merit s.” The government presents its evidence by calling witnesses and offering exhibits. The defense may cross

examine any witness that is called and may challenge the admissibility of exhibits. If the witness is cross

- examined, the prosecution may conduct a “re

- direct” examination. There can

be further re

- cross and re

- direct. The prosecution always goes first because the burden is on the government to prove the defendant’s guilt beyond reasonable doubt.

E. The Defense Case

The defense is NEVER required to present evidence because the burden is, and always remains on, the government to prove the defendant’s guilt. Just as in the prosecution’s case, defense witnesses can be cross

- examined, their exhibits can be objected to, and there can be re

- direct questioning of

witnesses.

F. The Rebuttal Case

If the defense presents a case, the prosecution may offer

rebuttal evidence. In the rebuttal case, the prosecution may_______________ Courtroom Evidence 98 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 present ed. The rebuttal cases continue until all rebuttal evidence has been presented.

G. Closing Argument

During closing arguments , the lawyers tell the jury what they think the evidence showed. The lawyers may argue only that which was admitted into evidence. Argument by counsel is

not evidence.

H

. The Charge to the Jury

During “the charge” (instructions) to the jury, the judge will tell the jury what the law is so the jury may apply the law to the facts in reaching the verdict. After deliberation the jury will

announce the verdict.

I. Sentencing

If the defendant is found guilty of any offense the judge will conduct a sentencing hearing. T his does not involve the jury unless the case is a capital (death penalty) one in which the jury will be asked to make certain findings.

J. Post

- Trial Proceedings

There are many different appeal procedures th at the defendant may attempt to use.

III. Relevant Evidence

A. The Requirement for Evidence to be Relevant

Evidence must be relevant to be admissible. Evidence is relevant if it has any tendency to prove or disprove a fact that is

in issue in the trial._______________ Courtroom Evidence 99 Evidence which tends to: (a) prove (or disprove) an element of the crime charged, (b) prove or rebut a defense, or (c) concerns the credibility (believability) of a witness is always relevant. Evidence does not always have to be the smoking gun. If evidence has any tendency to prove a part of the case

- directly or indirectly

- the evidence is relevant. You must find and collect all evidence because what might not appear relevant at first may become relevant later.

B. Other Crimes, Wrongs, and Acts of the Defendant (Uncharged Misconduct)

The government is entitled to prove the elements of the offenses with which the defendant is charged. Evidence of

crimes or other acts that are no t charged or relevant to prove a charged offense are inadmissible.

Specifically, the prosecution cannot offer evidence of the defendant’s uncharged misconduct to prove he “did it before, he did it again” or that the defendant is a bad person. This is “pr opensity 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:

**•** Mo tive. Does a prior act tend to prove the defendant’s motive to commit the charged crime? A

p rior altercation between the defendant and the victim is admissible to prove motive for a later assault. In a bank fraud case, evidence that the defendant had outstanding debts is admissible to prove the motive for using a false name on a bank

loan.

**•** Inte nt. Does a prior act tend to prove whether the defendant had a specific intent to commit the charged offense? One case held that a prior cocaine conviction to distribute drugs was_______________ Courtroom Evidence 100 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 t o 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 wi th 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 particu lar 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 comm itted the charged offense.

**•** Impeachment by contradiction. If the defendant

make s a factual claim while testifying, that fact can be contradicted. The contradiction might include_______________ Courtroom Evidence 101 evidence the defendant engaged in prior crimes or misconduct if a defendant denies such past wrongdoing. Another example would be if the

defendant claims sh e 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 com mit the crime.

IV. Direct and Circumstantial Evidence

Direct evidence tends to prove a fact directly and without

the need to draw an inference or a conclusion. Direct evidence most often comes from what a witness sees, hears, smells, tastes, or touches. In contrast, circumstantial evidence (also

know n as “indirect evidence”) tends to prove a fact indirectly through an i nference, deduction, or a conclusion. For example, testimony that “The street was wet when I got up in the morning” is circumstantial evidence it rained during the evening.

Sometimes you hear, “That is just circumstantial evidence” or “The case was entirely circumstantial.” Circumstantial evidence can be very powerful, and more reliable and convincing, than eyewitness testimony. Most physical

evidence i s 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 102 V. Lay (And Expert) Witness Testimony (Not all programs are responsible for the material in this section. Check your course syllabus.)

Generally, a witness may only testify from personal knowledge. Witnesses may offer their opinion only if they are an expert or if the matter is the proper subject of a “lay witness opinion.”

Criminal trials often involve expert witness testimony due

t o 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 m atter or other area of specialized knowledge, the witness must be qualified by their knowledge, skill, expertise, training, or education. (FRE 702).

Most law enforcement officers (LEOs) are not qualified to testify as an expert in forensic areas if they h ave only generalized police training. For example, while most LEOs have had training in collecting latent prints and fingerprint identification basics, they have insufficient qualifications to testify in court about a fingerprint comparison. LEOs who hav e 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

un derstanding 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

t he 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:_______________ Courtroom Evidence 103 A. Handwriting

Identification of handwrit ing if the witness has sufficient familiarity with that handwriting. A secretary or co

- worker, for example, might be sufficiently familiar with someone’s handwriting to say, “That’s it.”

B. Voice

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

hand or from a recording) provided the witness has heard the voice before under circumstances where they knew who the speaker was.

C. Emotional Condition

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

D. Not Requiring Scientific or Technical Knowledge

A witness may testify “it looked like blood” because most people know what blood looks like.

VI. Witnes s Credibility and Impeachment

Witnesses are called “credible” if they are believable. Each

side in a trial wants their witnesses to be bel ieved, and the jury (or the judge in a bench trial without a jury) decides whether a witness is credible and can elect to believe all, nothing, or part of what a witness says.

A. Impeachment

Impeachment is an attack on the credibility of a witness. Any witness who testifies can be impeached. The impeachment evidence can be offered during cross

- examination or can be offered through the testimony of another witness._______________ Courtroom Evidence 104 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, i f a witness was impeached with questions about wearing glasses, the witness could be rehabilitated with evidence that the prescription was current and the witness was wearing clean glasses in a correct manner.

While impeachment or rehabilitation occurs in the courtroom, they are based upon facts, and it is often your duty to develop these facts. You must collect evidence that can be used: (1) by the AUSA to impeach defense witnesses; (2) by the defense to impeach government witnesses (so the AUSA can

prep are for it); and (3) by the AUSA to rehabilitate prosecution witnesses who are impeached at trial.

B. Factors that Affect a Witness’ Credibility

1. Bias

A bias ed witness may tend to color or slant testimony. Bias can arise when witnesses are related by blood or marriage

to defendants or v ictims, or when they are members of similar groups (gangs, places of worship, college fraternities). Bias may also exist in other relationships such as fellow LEOs, former prison cellmates, or partners

- in

- crime.

2. Motive to Fabricate Testimony

A witness with a stake in the outcome of the trial or a vendetta against another witness or the other side may have a_______________ Courtroom Evidence 105 motive to lie (motive and bias are similar). Motive is illustrated by witnesses who are financially or emotionally dependent on

the defendant or witnesses who have a reason to hel p (or hurt)

the defendant. Co

- defendants and co

- conspirators are easily attacked if they try to shift the blame toward the defendant.

3. Inability to Observe or Accurately Remember

A wit ness’ 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 s to see or hear what occurred, who were un der the influence of alcohol or drugs at the time of the event, or who have a mental impairment.

4. Contradiction

A common form of impeachment is to challenge the testimony of a witness to show what said is not true. A witness who says the car was green can be impeached with evidence

that the car was in fact red.

5. Prior Inconsistent Statements

Perhaps the best possible impeachment is to contradict witnesses with their own words from prior testimony, reports, notes, or statements to others.

6. Specific Instances of Conduct that Indicate a Witness is Untruthful

A witness may be cross

- examined about his past conduct

if it would indicate he is untruthful. The conduct does not have to relate to the case being tried. Examples would include lying in an investigation, forging checks, or engaging in acts of deceit. LEOs who have engaged in such conduct, on or off duty, m ight have that conduct exposed in court._______________ Courtroom Evidence 106 7. Prior Convictions to Show Untruthfulness (FRE 609)

A prior conviction (NOT an arrest) can be used to impeach any witness (including the defendant) who testifies. The idea behind allowing prior convictions in as evidence is that one who has been convicted may be the type of person who is untruthful. A prior conviction is NOT admissible to show the defendant “did it before so he did it again” or that he is a bad person, and therefore committed th e charged crime. (This, remember, is propensity evidence which is inadmissible.) Convictions that are less than 10 years old that are either felony convictions for any offense, or misdemeanor convictions for perjury or false statement, may be used to impe ach a witness

who has testified. 2 The 10 years is measured from the date of conviction or the date of release from confinement, whichever is later. If the conviction is under appeal it may still be used. Convictions that have been reversed or the subjec t of a pardon may not be used. Generally, a juvenile adjudication may not be used but the AUSA should be informed about any juvenile adjudications.

VII. Privileges (Not all programs are responsible for the material in this section. Check your course syllabus.)

Privileges are protections given to information shared between people in specific relationships. When a privilege exists, it means that a person cannot be required to provide certain information and can prevent others from doing so. Ordinarily a witness can be required to testify at a Grand Jury or a trial under threat of being held in contempt. However, if the information is privileged, a person cannot be compelled to give the information no matter how relevant and important it may be. The courts developed the privileges used in federal criminal

trials.

2 Convictions more than 10 years old are admissible if the judge determines, “in the interests of j ustice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”_______________ Courtroom Evidence 107 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 dec ided that it is better to have clients talk to their lawyers than to reveal attorney

- client discussions.

A. Holders of a Privilege

The holder of a privilege is the person who can refuse to divulge the privileged information. In some cases, certain persons can exercise the privilege on behalf of the holder such as when attorneys refuse to reveal what clients tell th em.

B. Waiver of Privileges

The existence of a privilege means a person cannot be made (or compelled) to provide information, not that the information cannot be used. For example, if a person holds a valid priv ilege for which there is no exception, and the person is subpoenaed to testify at the Grand Jury or another proceedings, that person can lawfully refuse to divulge the information without being held in contempt of court. On the other hand, the

person can w aive the privilege and testify. In addition, if the same information is available through a non

- privileged source,

the information can be admitted at trial.

Unlike a waiver of Miranda rights, there is no special method to have a person waive a privilege. Even if you know that a person holds a privilege, you may still attempt to question the person. If the person answers the question, the privilege is waived. You should presume that the person may attempt to invoke the privilege at a later proceeding. To guard against this possibility, you should obtain independent information that proves or corroborates what the holder of the privileg e told you._______________ Courtroom Evidence 108 C. Privileges and the Rules of Evidence

The general rule is that FRE apply only during trials, and not to other proceedings such as the initial appearance, the preliminary hearing, arraignment, Grand Jury hearings, sentencing proceedings, detention and identity hearings, and appeals. An exception is that privileges apply to all proceedings.

D. The Federal Privileges

Not all federal pri vileges are discussed in this text but only those that you will commonly encounter. Federal privileges include:

**•** The 5th Amendme nt privilege against self

incrimination. This is the subject of the Self

Incrimination cha pter and will not be further

discussed here.

**•** The attorney

- client privilege

.

**•** The husband

- w ife privileges

.

**•** The psychotherapist

- patient privilege

.

**•** The government

- informant privilege

.

**•** The clergy

- communicant privilege

.

E. Non

- Federally Recognized Privileges

Some state courts may recognize other privileges that are not recognized in federal criminal trials such as the (1) doctor

patient (unless the doctor was a psychotherapist); (2)

accountant

- client; (3) j ournalist

- source 3 ; and (4) parent

- child.

3 Some federal courts recognize there may be a qualified (limited) journalist

source privilege._______________ Courtroom Evidence 109 F. The Attorney

- Client Privilege

The privilege covers communications

- written or oral

- between attorney and client made during professional consultation. It includes communications before payment for services, and the privilege remains even if the a ttorney

- client relationship is severed such as when a client fires the lawyer. The privilege exists to encourage clients charged or under investigation with a crime to speak candidly with their attorney in order to obtain an adequate defense.

Elements of the privilege: (a) the attorney must be acting as an attorney in a professional capacity, (b) the communication must have been intended to be confidential, and (c) the

communication must have been confidential in fact.

The client holds the privilege. Th e attorney may exercise the privilege for the client by refusing to divulge what the client told the attorney.

The privilege does not apply when the attorney is serving in some function other than a legal adviser such as a mere conduit for funds, real est ate 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 w hen a third person is present or in a public place where people can overhear will usually destroy the confidentiality of the communication and, therefore, the privilege. The law recognizes, however, that if the presence of a third person is essential for t he attorney to prepare a defense in a criminal case, then these third persons_______________ Courtroom Evidence 110 HUSBAND

- WIFE

PRIVILEGES

**•** Testimonia l Privilege

**•** Marital Communication Privilege fall under the “umbrella” of the privilege. Examples would be a legal secretary, paralegal, defense

- employed investigator, or interpreter working for the attorney.

G. The Husb and

- Wife Privileges

There are two husband

wife pri vileges. 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 spou se 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 privat e

- 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 privil ege is held by the spouse who made the communication. More and more courts are holding that this privilege belongs to both spouses.

The marital privileges exist to encourage husbands and wives to communicate with each and to preserve marriages.

There ar e several exceptions to the privileges such as when the marriage is determined to be a sham, when a spouse or the child of either spouse is the victim of the crime charged, and in many circuits, when both spouses participated in the crime._______________ Courtroom Evidence 111 H. The Psychoth erapist

- 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

- patie nt privilege, if the doctor is a psychiatrist or other mental health professional, the psychotherapist

- patent privilege may exist. This privilege exists because effective psychotherapy depends upon an atmosphere of confidence and trust.

A party asserting the psychotherapist

- patient privilege must show that the communications were made: (a) confidentially, (b) between a licensed psychotherapist and the patient, and (c) in the course of diagnosis or treatment. The patient holds the privilege. The person pr oviding 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

rec ognized if the patient communicates serious threats to himself or others, or the patient and therapist were engaged in a criminal enterprise.

I. The Clergy

- Communicant Privilege

The Supreme Court ha s not specifically adopted the clergy

- communicant privilege though most circuits have.

A party asserting the clergy

- communicant privilege must show that the communications were made: (a) to a member of the clergy, (b) in the clergy’s spiritual and professional capacity, and (c) with a reasonable expectation of confidentiality. “C lergy” includes minister, priest, pastor, rabbi, or other similar leader_______________ Courtroom Evidence 112 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 defe at 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 communic ant said. If the communication was not on a spiritual matter

- such as a joint criminal enterprise

- the privilege will not apply.

J. The Government

- Informant Privilege

In the other privileges di scussed so far, the privileged information is what the person holding the privilege said. The
government

- informant privilege is different in two respects: (a) what is privileged is not the communication, but the identity of

the informant and information that would reveal the informant’s identity and (b) the holder of the pri vilege is not the person who made the communication, but to whom the communication was made (the government). The privilege exists to encourage people to report crime and cooperate with the police.

Not everyone who provides information to the government is an informant for the purposes of this privilege. For example, victims of crimes and LEOs provide information that does not fall within the privilege. All agencies have special rules and procedures to follow that bring informants under the umbrella

of this privilege, and you must be sure that confidentiality is not promised contrary to agency policy.

The government holds the privilege. The AUSA will exercise the privilege on behalf of the government. You may NOT reveal the identity of the informant un less directed to do so by a judge or the AUSA.

A judge may order that the identity of a confidential informant be revealed. If the judge decides that the informant’s_______________ Courtroom Evidence 113 identity should be revealed, the AUSA must either do so or dismiss the case. The judge w ill 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 r elevant.

**•** If the informant witnessed activities that are part of either the government’s or the defense’s case, the judge will have to decide whether revealing the informant’s identity is relevant and helpful to the defense and necessary to a fair trial. Here the chance that the informant’s identity will be revealed becomes more likely.

**•** If the informant is a co

- defendant, conspirator, confederate, or a party to a charged offense, it is likely that the informant’s identity will be revealed.

VIII. Evidenti ary Foundations

Evidence must be authenticated to be admissible in

court. Authentication shows that there are fact s to prove that the item is what the person offering the evidence claims it to be. The process of authenticating evidence in court is called “laying a foundation.” The AUSA is responsible for laying a foundation for evidence using facts collected by you._______________ Courtroom Evidence 114 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 murde r.

A. Laying a Foundation

The attorney offering an item into evidence is required to lay a foundati on 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 d efendant prepared this fraudulent document.” A foundation is usually laid through the testimony of a witness who can say from personal knowledge that the exhibit being offered in court is the one they saw, seized, or collected.

B. Marking/Tagging Evidence

The evidence tag documents where and when the evidence was found and who found it. Proper marking, tagging and bagging will ensure you can identify that evidence as the same as that offered in court. The evidence should be marked, tagged, or bagged in such a way that you will recognize it in

court.

C. Chain of Custody

An evidence tag document s where and when the evidence was found and who found it. A properly prepared chain of custody document s where the evidence has been and who has

handled it from the time it was discovered until the time it is offered in court. It also documents any alterations to the evidence. The first entry on the chain of custody should be the person who found the evidence. A chain of custody does not eliminate the need to call a witness to lay a foun dation 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._______________ Courtroom Evidence 115 D. Legal Admissibility and Preserving Trace Evidence

Characteristics

Evidence collectors have two challenges: (1) ensuring that the evidence can be admitted in court; and (2) preserving the

item’s characteristics and associated trace evidence such as fingerprint s , hair, and fiber evidence. Laying a foundation for the admissibility of evidence does not satisfy evidence

- handling techniques designed to preserve trace evidence. Handling evidence in a way that preserves trace evidence may not always satisfy legal admissibility rules. You must collect and preserve

evidence to ensure that both a foundation can be laid in court and trace evidence is preserved.

E. Condition of the Evidence at the Time of Trial

There is no established legal standard that requires evidence to be in a certain condition in court when compared to how it appeared when it was collected. Usually it is sufficient

that the evidence is in the same o r 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 i n analysis. Mishandling evidence or alterations that cannot be documented may mean being unable to lay a proper foundation. The evidence may then be inadmissible. There is no limit to the ways an evidentiary foundation can be challenged, but here are some examples:

**•** The foundation witness cannot identify the exhibit

at trial.

**•** Unmarked, mis

- marked or incomplete tags, bags,

or chain of custody documents._______________ Courtroom Evidence 116 **•** 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 evide nce handling experts).

**•** Reuse of evidence tape, swabs, bags, or seals (these items are cheap; discard contaminated or used supplies).

**•** Documents or evidence marked in such a way that the evidence is “altered” (Did the LEO obliterate a fingerprint when the item was marked? Did page numbering of documents alter the meaning or authenticity of the document?).

**•** Work done on originals of computer disks, photos, documents, tape recordings or the like (make copies and work with copies).

IX. Foundations for Busine ss Records and Public

Documents (Not all programs are responsible for the material in this section. Check your course syllabus.)

A. The Best Evidence Rule (F RE 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._______________ Courtroom Evidence 117 This process lent itself to errors in copying, and what was supposed to be an exa ct copy was not always so. Though many of the rule’s concerns have been resolved by technology, the

rule must be followed.

1. An “Original”

The original of a document is the actual document itself or counterparts intended to be the equivalent of the original

such as identical document s executed by both parties at the same time. An original of a photograph is any print made from the negative. As to computer data, any visible printout of the data is an original.

2. “Duplicates”

Duplicates include carbon copies, photocopies, or copies made from other techniques t hat accurately reproduce the original. A duplicate is admissible to the same extent as the original unless a genuine question is raised as to the authenticity of the original, or it would be unfair to use a duplicate instead of the original such as when a duplicate is of poor quality or otherwise not legible. You must always, however, endeavor to find and safeguard originals.

The Best Evidence Rule states that to prove the contents of a writing, the original writing itself must be admitted into evidence; witnesses are not permitted to testify what a document says over objection by counsel. If the document or writing is available, it must be offered into evidence. There are exceptions such as when all originals have been lost or are unobtainable, or the o ther side has the original and will not produce it.

B. Self

- Authentication

A foundation is required to introduce a business record or public record. Ordinarily the foundation is laid by the

custodian of the r ecord who can state how the record was created and maintained. Special rules, however, allow certain_______________ Courtroom Evidence 118 documents and records to be “self

- authenticating.” Self

authenticating records and reports do not require a witness to testify and lay a foundation.

1. Public Records and Documents

The FRE permit documents that are public records to be

self

- authenticating if they are accompanied by a seal or certified as correct by the custodian. Federal agencies have established procedures and the necessary forms to provide public documents and records under seal or to certify them. The

cus todian does not have to lay a foundation for the document if

the document or record is certified or under seal. You do not have to personally obtain these records by hand.

2. Business Records

The FRE permit busine ss 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 knowledg e of the matter,

**•** The record was kept in the ordinary course of business,

and

**•** The business made such a record as a regular practice (it was not specially generated just for the trial)._______________ Courtroom Evidence 119 C. Hearsay and Public Records and Documents and

Business Records

Offering the contents of public records and documents

and business records for the truth of their contents can be hearsay , but there is a specific hearsay exception for them. If there is a seal or certificate that complies with the self

authentication rules, then not only will the business r ecords 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 enforcem ent.

Even self

- authenticated police reports are still subject to the hearsay rule.

X. Hearsay (Not all programs are responsible for the material in this section. Check your course syllabus.)

A. Hearsay Defined

Hearsay occurs when: (a) a statement is made out of court, (b) the out of court statement is offered in court (trial), and (3) the out of court statement is offe red for the truth of the

matter asserted in the statement.

B. Hearsay Examples

In each case, the witness wants to offer the quoted

statement in court.

(1) “Susan said Bob stole her purse.” (To prove that Bob is a thief).

(2) “John said he saw the green car that night.” (To prove there was a green car at the scene)._______________ Courtroom Evidence 120 C. Applicability of the Hearsay Rule

The hearsay rule applies only to trials. You can and often do rely on hearsay to develop probable cause, develop reasonable suspicion, guide your decisions, and develop leads. Hearsay may also be used in criminal compla ints and search

warrant affidavits.

D. Reason for the Hearsay Rule

Hearsay is inadmissible at trial because it is not possible

to confront and cross

- examine the person who made the out

- of

court statemen t, and the jury is unable to assess that person’s demeanor and credibility. Hearsay is just not considered sufficiently trustworthy to let the jury consider it.

E. What is a Statement?

A “statement” can be verbal, written (such as a written statement of a person) or an act intended to communicate information (nodding the head, pointing, gesturing). Memoranda, writin gs, statements, and reports

– even under

oath

- are “statements” within the meaning of hearsay.

F. “ Truth of the Matter Asserted ”

The third component of the hearsay rule is that the out

of

- court statem ent is being offered for the truth of the matter asserted in the statement being offered. If the jury is asked to believe the statement is true, the statement is hearsay. If the statement is being offered for a legitimate reason other than to prove that the statement is true, then the statement is not hearsay. For example, if the statement offered is “Bill told me

t hat Joe shot him” to prove Joe shot Bill, the statement is hearsay. If the statement is offered to show why an officer was looking for Joe, the statement is not hearsay because it is not offered to prove Joe shot Bill._______________ Courtroom Evidence 121 G. Non

- Hearsay

1. Statements of the Defendant

Because the prosecution cannot call the defendant to the stand to testify, statements made by the defendant and offered by the prosecution are specifically excluded from the definition of hearsay. It really does not matter whether the sta tement is classified as an admission, confession or just information.

2. Other Statements

Statements of the defendant’s co

- cons pirators made during and in furtherance of the conspiracy are excluded from the definition of hearsay. Also, earlier statements made by trial witnesses can sometimes be admitted to attack or support their trial testimony.

XI. Exceptions to the Hearsay Ru le (Not all programs are responsible for the material in this section. Check your course syllabus.)

If an exception to the hearsay rule applies, the statement is admissible. There are many hearsay exceptions, and this text will discuss only two of them. When taking a statement that might be hearsay, you must document the facts and

circumstances under w hich the statement was made. This may later aid the AUSA in getting the statement admitted at trial under a hearsay exception.

A. “ Excited Utterances ”

The law recognizes that a “non

- testimonial” statement

made un der 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, whi le yelling, holding_______________ Courtroom Evidence 122 their hand over a gunshot wound, and in a high emotional state, a victim blurts out, “Joe shot me!” This statement would meet the exception for excited utterance.

B. Statements for Purposes of Medical Diagnosis or

Treatment

The law recognizes that when a person is speaking to health care providers about their illness or injury, they are unlikely to fabricate those facts. The elements of this exception are: (a) a statement is made for the purposes of medical diagnosis or treatment, (b) the statement concerns medical history, past or present symptoms, pain, sensations, or the cause of the medical problem, and (c) the statement is pertinent to diagnosis or treatment. The person who receives the statement does not have to be a physician. If the person making the statement believes that the person they are speaking to is someone who is going to help them medically, the statement can qualify under this exception. Such statements can be made to nurses, emergency medical technicians, or to

th ose working in the medical field who are treating the person.

XII. Statements, Reports and Courtroom Testimony

Except for some expert witnesses and other limited circumstances, witnes ses cannot testify from their reports or notes. You should check with the AUSA about whether to bring reports or notes to trial.

Your reports, and notes, as well as written statements and notes of other witnesses, can be used to impeach a witness’

in

- cou rt 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.

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_______________ Courtroom Evidence 123 non

- LEOs can be used. Documents or statements used to refresh a witness’ memory do not have to be made under oath. When a witness’ memory is refreshed, the witness can then testify from memory . The report or item that was used to refresh memory is neither read nor given to the jury.

Notes, reports, statements or other writings that are used to refresh a witness’ testimony are available to the other side.

These items can be used to cross

- exam ine the witness and for other purposes.

Non

- LEO witnesses may testify at trial, and they too may need their memories refreshed. If during an investigation you

interview a witness and the witness needs to refresh their memory with an item, you should obta in the item so it will be available at trial to refresh the witness’ memory if that becomes necessary. For example, if during an interview a witness must refer to a phone bill to remember when they spoke to someone, the officer should obtain a copy of the phone bill so it will be

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

memory.

XIII. Authenticating Information Contained in Computers (Not all programs are responsible for the material in this

section. Ch eck your course syllabus.)

A. Involving Computer Forensics Experts

Computer forensics experts should participate in all search warrant phases

- determining whether probable cause

exists to searc h 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

off icer requiring it, may be present and acting in the execution of a search warrant. If a computer forensics expert is needed,

make sure the warrant indicates one is needed to aid in the

search.

B. Rules of Evidence Issues when Authenticating_______________ Courtroom Evidence 124 “Digital (o r Electronic) Evidence”

Digital evidence is nothing but an electronic series of 0s and 1s that is interpreted by a computer program. Below are

some of the special, significant issues in having digital evidence

admitted into court.

**•** Were the records altered, manipulated, or damaged after they were created?

**•** Who was the author of the record?

**•** Was the program that converted the digital evidence

to words or graphics reliable?

Proving authorship is usually solved by collecting circumstantial and other evidence during the search such as where the storage device (drive, disk, or other medium) was found; who had access to the data; trace evidence (DNA, finger prints); passwords and screen names and who had access to them; names on computer folders containing the data or passwords; and sources of e

- mails that contain attachments.

C. Admissibility of Digital Evidence

To be admissible , there must be a showing that there is a reliable compute r 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 we re 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 gener ated “associations” between particular file types and software. Having the program that creates the data goes a long way to prove the same program will accurately print it out. Many software applications embed data regarding when a document was created a nd_______________ Courtroom Evidence 125 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 tru stworthy, and the defense is afforded an opportunity to inquire into the accuracy of those

records.

D. The Best Evidence Rule Requirement for an “Original”

According to FRE 100 1(3): “[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original.” An accurate printout of computer data satisfies the

Best Evidence R ule. Doe v. United States

.

E. Hearsay Issues

Whether the hearsay rules apply dep ends on whether the document is one generated by a computer or contains statements of a human being. Documents created by humans that are stored on a computer are “statements” if the document

is offered into evidence for the “truth of the matter asserted. ” (If the document is a statement of the defendant, it is excluded from the definition of hearsay.) You must still provide facts to prove it was the defendant’s statement.

Records that are generated by a computer are NOT hearsay. Hearsay rules apply on ly 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 hea rsay 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 t he truth of the matter asserted._______________ Courtroom Evidence 126 

### NOTES_______________ Courtroom Testimony 127 

## Chapter Five

Courtroom Testimony

I. I NTRODUCTION

................................ ................................ . 128

II. S TAGES OF A C RIMINAL T RIAL

................................ ............ 128

III. E FFECTIVE W ITNESS C HARACTERISTICS

............................... 129

A. Meeting the Jury’s Expectations

................................ ........ 129

B. Characteristics that Jurors Expect of Witnesses

............... 129

1. Tell the Truth

................................ ............................... 129

2. Be Impartial and Objective

................................ ........... 129

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

........ 129

4. Be Prepared

................................ ................................ . 129

5. Be Properly Attired

................................ ....................... 130

6. Demeanor Counts

................................ ........................ 131

7. Stay Serious

................................ ................................ 131

8. Avoid Having a “Bad Attitude”

................................ ...... 131

9. Admit Mistakes

................................ ............................ 131

V. E SSENTIAL L AW E NF ORCEMENT T ESTIMONIAL S KILLS

............ 132

A. Manner of Answers

................................ ........................... 132

B. Testimonial Skills that make LEO Testimony Convincing

.. 132

1. Listen and Answer

................................ ....................... 132

2. Give Audible Responses

................................ ............... 132

3. Do not Volunteer Information

................................ ...... 132

4. Wait for Rulings on Objections

................................ ..... 133

5. Prosecutorial Assistance

................................ .............. 133

6. Speaking to the Judge

................................ ................. 133

7. Avoid Cop Talk

................................ ............................. 133

8. Just the Facts

................................ .............................. 133

9. “I Don’t Know ”

................................ .............................. 134

10. “I Don’t Recall”

................................ ............................. 134

11. Positive and Definitive Answers

................................ .... 134

12. Memorized Testimony

................................ .................. 134

13. Speak to the Audience

................................ ................. 134

V. S TATEMENTS A ND R EPORTS FOR C OURTROOM T ESTIMONY

...... 134

VI. I MPEACHMENT DURING C ROSS

- E XAMINATION

........................ 135

A. Direct , Cross

- Examination, and Impeachmen t

.................. 135

1. Direct Examination

................................ ...................... 135

2. Cross

- examination

................................ ....................... 135

3. Impe achment

................................ ............................... 13 5

4. Redirect Examination

................................ .................. 135

B. LEOs and the Frustration of Cross

- Examination

............... 136_______________ Courtroom Testimony 128 C. Common Cross

- Examination Techniques

.......................... 136

1. Yes or No Questions

................................ ..................... 136

2. Putting Words in the Witn ess’ Mouth

........................... 136

3. The Badgered Witness

................................ .................. 137

4. Do Not Volunteer Information

................................ ...... 137

5. Pretrial Discussions with the Prosecutor

...................... 137

6. Repetitive Questions

................................ .................... 137

7. Compound Questions

................................ .................. 138

8. Rapid

- fire Questions

................................ .................... 138

9. Admission of Mistakes

................................ ................. 138

10. Possibilities

................................ ................................ .. 139

11. Friendly Defense Counsel

................................ ............ 139

12. Twisting Prior Testimony

................................ .............. 139

13. Conflicting Testimony Among Witnesses

...................... 139

14. Impeachment by Prior Statements

............................... 140

15. Corrected Statements

................................ .................. 140

16. Previous Lies

................................ ................................ 140

VII. S UBJECTS NOT TO BE V OLUNTEERED WHEN T ESTIFYING

.......... 140

A. Prior Criminal History

................................ ....................... 140

B. Advisement of Constitutional Rights

................................ . 140

C. Suppressed Evidence

................................ ........................ 141



## *****

I. Introduction

No matter how well law enforcement officers (LEOs) perform their duties, justice ultimately depends on how the facts are presented in court. Law enforcement officers are often

the cente rpieces of the prosecution’s case. If the government’s witnesses are not believed or cannot convince the judge or jury of the truth, the government cannot win. The principles in this course apply to any situation when an officer testifies.

II. Stages of a Criminal Trial

In some programs, Courtroom Testimony includes an EPO on stages of a criminal trial

. (Check your syllabus.) If your program has this EPO, the student handout material is in

Section II of the Courtroom Evidence chapter of this Handbook._______________ Courtroom Testimony 129 III. Effective Witness Characteristics

A. Meeting the Jury’s Expectations

Witnesses wa nt to be believed by the jury. Witnesses who tell the truth serve justice. The jury is more likely to believe a

witnes s, and justice is better served, if the witness has certain

characteristics.

B. Characteristics that Jurors Expect of Witnesses

1. Tell the Truth

Telling the truth is the most important characteristic for any witness . Most jurors will believe LEOs until given some

reason to doubt their testimony

. L ying in a trial is a crime. It destroys the ability of the defendant to receive a fair trial and

the ability of the government to secure a conviction of a guilty

defen dant.

2. Be Impartial and Objective

The jury wants to believe you are fair to all, including the

defendant. Witnesses who are impartia l and objective are more likely to be believed.

3. Treat the Jury, Judge, and Counsel With Respect

A lways addre ss the counsel as “ Sir ” or “ Ma’am ” and the judge as “Your Honor.” M aintain eye contact with the peopl e

you are talking to

- it is a sign of respect.

4. Be Prepared

Unprepared witnesses are not effective. Because there is often a delay between the conclusion of the investigation and the trial or hearing, you will need to refresh your memory prior to testifying. This process should include a thorough re view of notes, reports, and other documents associated with the case._______________ Courtroom Testimony 130 Ensure everything reviewed is known to the prosecutor

– everyone should be on the “same sheet of music.”

R eview any physical evidence to help you identify it in

court. I t may be benef icial for you to revisit the crime scene

because the scene might have changed after the crime.

LEOs frequently go over their testimony with the prosecutor before trial. Rehearsing trial testimony in advance is an acceptable practice.

5. Be Properly Atti red

Clothing, grooming and jewelry can make an unfavorable

“statement” about the witness and his or her believability. If

you normally wear a uniform on th e job, jurors expect you to be

in uniform in court. L eave behind extra accouterments and equipment, such as whistles, pagers, and shoulder microphones . Havin g extra equipment can make a long period

in the witness chair uncomfo rtabl e. [Cellular phones and other electronic devices, if allowed at all, must be turned off or set to a silent setting prior to entering the courtroom.]

Your attire should always be clean, neat, and conservative. Always check the local Rules of Court to determine if firearms are permitted in court. Often they are not,

even for LEOs.

LEOs who are not uniformed officers, should wear the type of clothing they would wear to an important job interview

. Clothing suitable for an evening engagement is inapprop riate

. Men should wear a coat and tie. Women should wear the type of clothing suitable for a business setting

.

Avoid excessive jewelry or accessories that “make a statement” such as tie tacks in the shape of handcuffs, smoking

guns, or hangman’s nooses, or pins of social, fraternal, political, or religious organizations._______________ Courtroom Testimony 131 6. Demeanor Counts

Juries and judges consider your demeanor in evaluating you’re your credibility (believability). How you approach the witness stand, how you look while taking the oath, and your posture in the witness chair can all have an effect on whether the jury or judge will believe you . A convincing “Yes, I d o” in response to the oath makes a positive first impression. M ake a conscious effort to avoid sending unwanted messages through nonverbal communications. For example, rolling your eyes can be seen as an attempt to ridicule.

7. Stay Serious

Trials are serious occasions. When you testify, be serious and avoid laughing or smiling. Defense attorneys will commonly draw attention to an officer who smiles o r laughs by asking, “Do you think this is funny?” An individual’s life and liberty may be at stake . Do not allow the defense attorney to imply that you believe the matter to be less than serious.

8. Avoid Having a “Bad Attitude”

A clever, superior, or cocky attitude turns people off. Answering clearly, succinctly, accurately, and professionally makes the testimony more con vincing. A witness may be truthful in their testimony, but the judge or jury may not give

the witness credence because of a “bad attitude.”

9. Admit Mistakes

Witnesses often will make mistakes in their testimony. A mistake must be corrected as soon as possible

, even if it means bringing it up in the middle of a different line of questioning . If still being examined in the general area of the mistak e, correct the mistake immediately. If the subject matter of the mistake comes up during cross

- examination or redirect examination, the mistake should be admitted and corrected. If not given the opportunity to correct the mistake during your testimony,_______________ Courtroom Testimony 132 inform the AUSA at the earliest opportunity. In this case, the AUSA will decide what action is appropriate.

IV. Essential Law Enforcement Testimonial Skills

A. Manner of Answers

The demeanor and manner in which you answer questions is important to ensure the jury or judge is convinced of the truth of the officer’s testimony. These skills apply equally

to direct and cross

- examination.

B. T estimo nial Skills that make LEO Testimony Convincing

1. Listen, think

, and then Answer

L isten carefully to the questions asked and think ab out

your response before speaking. While answers should not be rushed, long delays before answering simple questions will seem suspect to jurors.

2. Give Audible Responses

Neve r just nod your head to give a “yes” or “no” answer.

S peak so that the court reporter can record the response. Similarly, if you g esture and say, “It was this big,” or “It happened here on the diagram

, ” the record will not ref lect the information you hope to convey. Therefore, describe their gestures or actions such as, “the knife was this big

– about 14 inches long.” Sp eak clearly , intelligibly, and loudly enough so

that you will be heard and understood throughout the courtroom. Monotone presentations are far less effective than presentations that contain variations in volume, speed of delivery, and tone.

3. Do N ot Volunteer Inf ormation

Answer the question and then wait for the next._______________ Courtroom Testimony 133 4. Wait for Rulings on Objections

S top immediately when an attorney objects to a question

and do not speak unless and until the judge has ruled. If an objection has been overruled, and yo u ha ve forgotten the question, ask to have the question repeated. If the judge sustains the objection, say nothing further on that subject, and instead await the next question. Continuing to testify after an objection and before a ruling is unprofessiona l.

5. Prosecutorial Assistance

Do not look to the prosecutor or others for an answer. Do

not look to others for he lp in answering a question. If a defense question is improper, the prosecutor will object. If you do not understand the question or it is unclear, ask that the question be repeated.

6. Speaking to the Judge

Unless spoken to by the judge, you should not ordinarily address their questions or concerns to the judge. A ddress

r equests to repeat, clarify, or rephrase questions to the counsel who asked the question. A ddress r equests to refer to your notes or reports while testifying to the examining counsel.

7. Avoid Cop Talk

A void using legalese or police jargon such as, “I proned him out,” “I did a protective sweep,” or “I frisked him.” To be an effective communicator, talk to jurors in a language they will

understand.

8. Just the Facts

T es tify only about matters within your p ersonal knowledge, such as what you personally did, saw, smelled, touched, or

, consistent with hearsay rules, heard. Let the other

witnesses be res ponsible for testifying to their observations and

actions. Do not offer their opinions unless specifically asked._______________ Courtroom Testimony 134 9. “I Don’t Know”

If the correct answer to the question is “I do not know,” say so in the same voice and manner used to answer other questions.

10. “I Don’t Recall”

This answer implies you once knew the information but at the moment, cannot recall it. This answer is not a truthful one

if you remember , but just do not want to answer.

11. Positive and Definitive Answers

G ive positive, definite answers when at all possible. Avoid saying, “I think,” or “I believe.” If you do not know, say so. If

you cannot offer a p recise answer but just an estimate, be sure to state that it is only an estimate.

12. Memorized Testimony

Don’t testify from a report verba tim or memorize testimony. P repare for trial and review the case, but do not

memorize what you are going to say. Memorized testimony sounds unconvincing.

13. Speak to the Audience

People are accustomed to being “looked in the eye” when someone is talking to them. On brief exchanges between you and counsel (yes or no answers, and quick replies), the jury does not expect you to turn back and forth between the counsel and the jury. On longer answers, turn to the jury (or the judge if there is no jury present) to give your reply.

V. Using Statements and Reports to Aid and Prepare for Courtroom Testimony

This topic is taught in some versions of Courtroom_______________ Courtroom Testimony 135 Testimony. (Check your syllabus.) If this topic is taught in your course, refer to section II of the Courtroom Evidence Chapter of this Handbook.

VI. Impeachment of Witnesses during Cross

- Examination

A. Direct Examination, Cross

- Examination, and Impeachment

1. Direct Examinat ion

When one side calls a witness, it is called “testifying on

direct examination .” Direct examination questions may not be leading ; that is, they may not suggest the answer. Direct examination questions will ordinarily begin with who, what, why, where

, when , or how

.

2. Cross

- examination

Every witness who testifies on direct examination may be

cross

- examined by the opposing counsel. On cross

examination, counsel is permitted to ask leading questions. So, instead of having to ask a question like, “What did you do next?” on cross, counsel can ask a question like, “Isn’t it true that you then searched my client?”

3. Impeachment

On cross

- examination , the defense counsel is permitted to impeach the witness. Impeachment is destroying or minimizing the believability of the witness’ testimony. Because counsel is permitted to ask leading questions on cross

- examination, you

mus t be especially careful when answering questions on cross

examination.

4. Redirect Examination

It is hard for witnesses to limit themselves to a yes or no answer and be denied the opportunity to explain it. R esist the temptation to be the government’s advocate; that is the_______________ Courtroom Testimony 136 prosecutor’s job. Your opportunity to explain answers or expand on a yes or no ans wer comes during redirect examination. At that stage, you will be asked if you wish to explain your answer or to expand on your testimony during

cross

- examination.

B. LEOs and the Frustration of Cross

- Examination

You are trained on, and survive by, being in control of the scene and the situation. Testifying in court, and especially on

cross

- examination, is frustrating for you because you are in an environment where the lawyers are in c ontrol. There is nothing that can be done about this except to learn how cross

examination works, being prepared for common cross

examination scenarios, and to trust that the prosecutor will clear up confusion caused by the defense during cross

examination.

C. Common Cross

- Examination Techniques

Below are some common cross

- examination techniques.

This list is provided to help you recognize these techniques and how to avoid being unfairly trapped by them. The suggested

counter

- measures are not to suggest a witness should ever give

an answer that is less than truthful.

1. Yes or No Questions

Generally, a party is entitled to a yes or no answer if one is possible. S uch an answer is not possible if you do n o t know the answer, do not recall the answer, or the answer is a compound question

- two questions rolled up into one and asking for a single response. Attempts to fully explain an

answer can be cut

- off, but the pr osecutor is entitled to have the explanation provided on re

- direct examination.

2. Putting Words in the Witness’ Mouth

Trial advocates are trained to “testify for the witness” on_______________ Courtroom Testimony 137 cross

- examination and then get the witness to agree with what the lawyer said. That is the es sence of leading questions that begin (or end) with, “Wouldn’t you agree that....?”, “Isn’t it true ....?”, or “You did X, didn’t you?” To properly answer a leading question that suggests the answer, carefully listen to what the defense counsel is asking. If what the defense suggests is true, then answer yes. If not, answer no or attempt to provide the

correct answer.

3. The Badgered Witness

Defense counsel knows that if a witness

- especially a law

enforcement officer

- becomes angry, two things happen. First,

you appear biased or not objective because you look like you are taking sid es. Next, you focus on the anger and not the facts of

the case

, thereby becoming distracted. Do not become angry or antagonistic even when the defense counsel is clearly doing

their best to bait you . An officer who is angry often exaggerates

or appears to be less than objective.

4. Do Not Volunteer Information

Do not volunteer extraneous information. If a question cannot be truthfully answered with a “yes” or “no,” request permission to expand upon or explain the answer. Sometimes

defe nse counsel will not say anything after the witness has answered suggesting to the witness they should keep talking.

R emain silent in the face of this tactic.

5. Pretrial Discussions with the Prosecutor

There is nothing improper with having discussed or even rehearsed testimony before the trial. That is part of normal trial preparation. If asked by the defense counsel, “Isn’t it a fact you rehearsed your testimony with the prosecutor?” do not hesitate to say, “Yes, Ma’am,” if that is the correct answer.

6. Repetitive Questions

The defense attorney may rephrase questions and ask the_______________ Courtroom Testimony 138 s ame thing again. This is done to either emphasize a defense

favorable point, or to see if the answer will change. When a defense attorney starts asking the same question in a slightly different manner, respond “As I stated earlier...” and then provide the same answer.

7. Compound Questions

The defense attorney ma y ask compound questions, that is, two or more questions presented as a single question. In such instances, if the prosecutor has not objected to the improper form of the question, address only one question at a time. For example, if asked “Is it true th at you arrested my

client and searched him?” when you did arrest but did not search, examine these possibilities:

**•** A “yes” or a “no” is untruthful

**•** The officer should answer, “I arrested the defendant

but did not search him.”

**•** If forced to answer yes or n o, respond, “I can’t answer that question with a yes or a no.”

8. Rapid

- fire Questions

This technique is meant to rush the testimony

, disallowing the witness the time to understand the question and provide a correct answer. R esist the temptation to keep up with the defense counsel, but instead speak at yo ur own pace in providing a truthful and accurate answer.

9. Admission of Mistakes

“Have you ever made a mistake ?” The answer should be “yes.” Do not be afraid to admit a mistake. Jurors find officers who honestly admit mistakes to be credible._______________ Courtroom Testimony 139 10. Possibilities

“Isn’t it possible that...” Anything is possible, but in many cases not probable. Testifying that “anything would be possible; however, based upon the facts in this case, it does not appear probable,” is responsive while remaining believable. If not allowed to provide a complete answer, a simple, “Anything is possible” will do.

11. Friendly Defense Counsel

The defense attorney may appear friendly to you during cross. This may lull you in to becoming overly familiar with defense counsel or appear to be less than professional. Additionally, if the defense attorney speaks softly or in a friendly tone and manner, often you will do the same. This technique is called mirroring. As a result, you may not speak up, the jurors may not hear your testimony, and your testimony

will be less effective.

12. Twisting Prior Testimony

The defense attorney may attempt to restate your testimony, and in doing so, misstate it. In such cases, l iste n very carefully when the defense attorney starts with the question “You stated earlier....” Do not presume that the defense counsel will accurately portray the prior testimony accurately and in many cases, may intentionally misstate the testimony.

13. C onflicting Testimony Among Witnesses

If two or more officers have participated in the same investigation, the defense attorney may question both officers about each officer’s observations in an attempt to find conflicts.

Do not be bullied into admitting an error, declaring anothe r officer “wrong,” or losing confidence in your own command of

the facts. O nly testify to your actions and knowledge._______________ Courtroom Testimony 140 14. Impeachment by Prior Statements

Showing a conflict between an earlier statement or report and the witness’s in court testimony is powerful impeachm ent.

L isten carefully to all prior statements attributed to you and decide whether the current testimony is truly different.

15. Corrected Statements

“So, you lied (in your report) (in your testimony )?” This question arises when there is a mistake in testimony that is

corrected or there is an irreco ncilable difference between testimony and a prior statement. D istinguish between a lie or being untruthful on one hand, and a mistake on the other. A lie or being untruthful is an intentional act. Mistakes are not

lies.

16. Previous Lies

“Have you ever lied before?” The answer is probably yes. Leave it to the prosecutor to conduct a redirect that any lie was never under oath, not in a report or official matter, and not related to anything that was important.

VII. Subjects that should not be Volunteered by a Witness

when Testifying at Trial

A. Prior Criminal History

Unless specifically directed by the Court (or by the prosecutor based upon the judge’s ruling), do not volunteer or offer the defendant’s prior criminal history during a trial. The admissibility of a defendant’s criminal history is subject to strict admissibility rules best left to the prosecutor.

B. Issues Surroun ding the Advisement of Constitutional Rights

Commenting in front of a jury about a defendant’s choi ce to exercise his Constitutional right to remain silent is grounds for a mistrial. A person questioned by law enforcement in a_______________ Courtroom Testimony 141 custodial setting ha s the Constitutional right to remain silent and/or have counsel present during questioning. Commenting

on the fact that a defendant exercised either or both of these constitutional rights is inherently prejudicial, and is a recognized basis for a mistrial or reversal of a conviction.

If you are asked at trial about what happened when the

defendant was arreste d or booked, talk about what you did (i.e., “I processed the defendant and turned them over to the jail”) without mentioning the Miranda warnings. Because this is a very tricky area, when in doubt, do not mention Miranda warnings, the defendant’s invocati on of the right to silence, or invocation of the right to counsel.

In the limited instances where it is permissible for you to testify about the Miranda process or the defendant’s Miranda choices, counsel will ask specific questions calling for exactly

th at information.

C. Evidence that has been Suppressed o r Declared

Inadmissible

If th e judge g rant s a motion to suppress evidence

, such

evidence is not admissible in trial

. For example, if a confession

is obtained in violation of Miranda

, the judge will suppress the confession. In other cases, evidence may be suppressed

because it was obtaine d in violation of the Fourth Amendment.

While there are exceptions that might allow suppressed evidence to be admitted, during the trial do not mention or allude to evidence that has been suppressed unless specifically

asked. Under the Fruit of the Poison ous Tree Doctrine

, evidence that is derived from evidence that has been suppressed must

also not be referred to

, unless you are specifically asked about

that evidence.

The FLETC would like to thank Mr. Ron Smith, Associate Director of the Mississippi Cri me 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._______________ Courtroom Testimony 142 

### NOTES_______________ Criminal Law Introduction 143 

## Chapter S ix

Introduction to Criminal Law

I. I NTRODUCTION TO C RIMINAL L AW

................................ ....... 143

A. What is a Crime?

................................ .............................. 143

B. Elements of Criminal Statutes

................................ .......... 144

C. Felonies and Misdemeanors

................................ .............. 145

D. Jurisdiction and the Assimilative Crim es Act

.................... 145



## *****

I. Introduction to Criminal Law

The subject of Criminal Law is very broad. All law

enforcement officers co ntinuously study criminal law throughout their career. By studying the selected federal laws presented in this course, you will gain an understanding of how to analyze and apply criminal statutes

. Following this introduction, the course is divided into numerous independent

sections. R ead the appropriate section prior to attending the class on that subject. Separate chapters have been created in the text for the largest criminal law topics.

Certai n concepts of criminal law apply to all federal crimes. These concepts include: the elements of an offense, the

difference between a felony and misdemeanor , and jurisdiction

. Additionally, the Assimilative Crimes Act outlines when state

statutes are assimilated into federal law and become federal

violations.

A. What is a Crime?

A crime is an act , or failure to act , prohibited by law and punishable by the government. Typical crimes include robbery,_______________ C riminal Law Introduction 144 rape, burglary, and murder. Crimes are different from torts in that criminal actions are brought by the government for the

pu rpose of punishing the wrongdoer and deterring others from similar conduct. A tort is a civil action for compensation. For example, if a criminal committed a burglary, the government could prosecute him and place him in jail. In a tort action, the

victi m could sue the wrongdoer for an intentional tort to recover the stolen items or their equivalent value.

B. Elements of Criminal Statutes

On a few occasions this text refers to the “ common law .”

You might also hear this term on the job. Common law w as the

unwritten law that existed before written statutes . There are no

common law crimes in the United States today.

All criminal laws in the Uni ted States are in written

statutes (statutory law). Each statute contains elements . Each

of these elements must be proven beyond a reasonable doubt to obtain a conviction. Most crimes require both a criminal intent

and a criminal act . In other words, an individual mus t both intend to commit a prohibited act and then act in furtherance of

that intent . However, that is not true in all cases. For example,

a pare nt could be criminally charged with child abuse for not acting to care for their child.

Motive is a very important fact for the investigator and prosecutor. It can be used to solve crimes by identifying potentia l perpetrators and to prove criminal intent . However,

motive is generally not an element of a crime.

The elements of crim es are best explained by example.

The federal crime of murder

, 18 U.S.C. § 1111, requires “the unlawful killing of a human being with malice aforethought.” Murder requ ires a criminal intent , malice aforethought. Murder also requires a criminal act , the unlawful killing of a human being. This statutory construction is typical of criminal

statutes in the United States._______________ Criminal Law Introduction 145 The federal crime of possession of a controlled substance, 21 U.S.C. § 844, makes it unlawful to knowingly possess a

contro lled substance without a valid prescription or order. Therefore, to secure a conviction, the government must prove

that the defendant “ knowingly ” possessed a controlled substance. If the defendant agreed to hold his girlfriend’s purse for her, he would in fact “possess” the cocaine hidden inside. However, the defendant would not be guilty of a crime unless the state could prove the defendant “knew” the purse contained

a controlled substance.

Additionally , all criminal statutes require a penalty. Without penalties, our criminal system would have no meaning. These penalties can include fines, probation, incarceration and

death.

C. Felonies and Misdemeanors

Crimes are classified by the maximum penalty

authorized. Title 18 U.S.C. § 3559 specifically cla ssifies a

federal felony as an offense for which the maximum term of imprisonment authorized is more than one year and a

misdemeanor as an offense for which the maximum term of imprisonment is one year or less. An infraction is a type of

misdemeanor where the term of imprisonment , if any, is no more than five days.

D. Jurisdiction and the Assimilative Crimes Act

Jurisdiction is the power to act when an offense has been committed. In many cases, the federal government can act when certain federal offenses are committed, regardless o f the location of the offense. For other violations however, the federal government, and its law enforcement officers, are only empowered to act when the offense is committed on federal property. In such cases, the government of the state in which

the fe deral property is located may also have jurisdiction

. Determining whether the federal or state government, or both,

can take jurisdiction depends on whether the federal_______________ C riminal Law Introduction 146 government has exclusive

, concurrent , or proprietary jurisdiction over th e federal property where the offense

occurred.

Exclusive jurisdiction means that on ly the United States government has criminal justice authority over the area. State or local law enforcement has no authority. All policing is done by the federal government.

Concurrent j urisdiction means that both the United States government and the state government have criminal justice authority over the area. Either, or both, the United States and the state authorities can investigate and prosecute

crimes committed within areas of concurrent jurisdiction

.

Proprietary jurisdiction m eans that the United States has

no more authority over the area than any other owner of private
property . The federal government has no particular right to execute any law enforcement activities in the se area s

.

Many State offenses are not included in the United States Criminal Code. However, this does not mean that people can simply go onto federal property and violate State laws. The Assimilative Crimes Act, 18 U.S.C. § 13, incorporates the laws of the State where the federal property is located. Therefore, in

an area of exclusive or concurrent jurisdiction , the federal
government can prosecute, under federal law, any acts which

are violations of the laws of the State where the offense occurred. This only applies when there is no federal law covering the offense._______________ Assault 147 

## Subpart A

Assault on Federal Employees

I. T HE L AW OF A SSAULT AND B ATTERY

................................ .... 147

I. A SSAULTING F EDERAL O FFICERS OR E MPLOYEES

................... 148

III. W HO IS C OVERED ?

................................ ........................... 149

IV. “F ORCIBLY ”

................................ ................................ .... 149

V. “E NGAGED IN OR ON A CCOUNT OF O FFICIAL D UTIES ”

.............. 150

V I

. P ENALTY

................................ ................................ ......... 150



## *****

I. The Law of Assault and Battery

At common law and under the law of most state criminal codes, an assault is any willful attempt or thr eat to inflict injury upon another person with the apparent present ability to do so, and any intentional display of force that would give the victim reason to fear or expect immediate bodily harm. For example, if

John attempts to punch Bob, but Bob evad es the swing by ducking, John has committed an assault. John also commits an assault if he approaches Bob while holding a baseball bat, and tells Bob that he is going to smash his head in with it. It is reasonable for Bob to fear immediate bodily harm ba sed on

John’s actions.

A battery is an intentional touching of another person, without consent, that is either harmful or offensive. If John gets angry at Bob and punches him in the face he has committed a battery . If John pokes Bob in the chest with his finger he has also committed a battery. A person does not need to actually touch another with his own body to commit a

batt ery. 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_______________ Assault 148 them. If John throws a rock at Bob and hits him in the head,

he has committed a battery.

Title 18 U.S.C. § 111 1 entitled, “Assaulting, resisting, or impeding certain officers or emp loyees,” does not distinguish

between the separate offenses of assault and battery . Federal

courts have dete rmined that both types of conduct constitute

an “ assault ” prosecutable under § 111.

II. Assaulting Federal Officers or Employees

Title 18 U.S.C. § 111 has two sections. The first section covers a broad range of conduct, making it a crime to forcibly assault, resist, oppose, impede, intimidate or interfere with any person designated in 18 U.S.C. § 1114 , while that person is engaged in his official duties, or on account of something that person did while performing his official duties. While § 1114 will be discussed later, this portion of § 111 protects current federal officers, employees, and those who assist them while they are performing their official duties. These individuals are afforded protection under § 111 when they are either, assaulted while performin g their jobs, or if not currently performing their jobs, are assaulted because of something they did while performing their jobs. For example, while on duty, a federal law enforcement officer is punched by a suspect while effecting an arrest. The suspect may be charged with assault under § 111

. If the suspect’s brother sees the same officer later that day, when he is off duty, and punches him because the officer arrested his brother earlier, he too m ay be charged with assault

under § 111.

The second part of § 111 provides protection for those

who formerly served as persons designated in § 1114. While not as broad as the coverage afforded in the first part of § 111, a person can be prosecuted under this section if he forcibly

assaults or intimidates a former federal officer, employee, or one who assisted them, on account of something tha t officer,

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Assault 149 employee, or assistant did while performing his job. For example, a federal law enforcement officer arrests a suspect who is convicted and sent to prison. The officer leaves government employment and is assaulted by the suspect, after

his relea se from prison, because the suspect is still angry at having been arrested by the former officer. The suspect may be charged with assault under § 111 because he assaul ted the

former federal officer on account of something the officer did while performing his official duties.

II I

. 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, i n order to determine who is covered by § 111, it is necessary to examine § 1114. Th is statute provides for the protection of

officers and employees of the United States, and reads

, in part,

as follows:

. . . any officer or employee of the United States or of any agency i n 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 mea ns that every federal employee and every person who assists a federal employee in the performance of his official duties is afforded protection under § 111.

IV

. “Forcibly”

For there to be a violation of § 11 1 , the force element

must be satisfied . In non

- contact (threat) assault cases, there must be, at the very least, a present apparent ability to inflict bodily harm upon the government employee, accompanied by a

threat or attempt to inflict such harm. An implied threat of the

use of force some time in the indefinite future does not

constitute a violation._______________ Assault 150 In a contact (battery) type assault

, minimal physical contact qualifies as a violation. This includes such acts as

pus hing an officer with a finger, bumping an officer

, hitting an officer with an object that has been thrown, or spitting o n an officer.

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

Official Duties”

Current federal officers and employees are covered by § 111 if they are assaulted while they are “engaged in” the performance of their official duties. The Supreme Court has

held that when a federal officer is assaulted while engaged in the performance of his official duties, it is not necessary for the government to prove that the defendant knew that the person

he assaulted was a federal officer. Therefore, if an undercover officer is assaulted while performing undercover duties, the suspect may be charged under § 111 even if he was unaware that the person he assaulted was a federal officer.

V I

. Penalty

The penalty f or violating § 111 when the defendant’s conduct amounts to only simple assault (no touching) is up to one year in prison. In all other cases, meaning an assault that does involve contact, but does not result in bodily injury , or involve a deadly or dan gerous weapon, the penalty is up to eight years in prison. Assaults resulting in bodily injury or involving

a deadly or dangerous weapon are punishable by up to twenty years in prison. Almost any object has the potential for being a deadly or dangerous weapon. Examples of violations of § 111

which resulted in enhanced penalty for using a deadly or dangerous weapon include: hitting an officer over the head with a phone, throwing a water pitcher at an Assistant United States Attorney, hitting a federal officer with a stick, and attempting to run over a federal agent with an aut omobile._______________ Bribery 151 

## Subpart B

Bribery

I. I NTRODUCTION

- T ITLE 18 U.S.C. § 201

.............................. 151

II. P UBLIC O FFICIALS

................................ ............................ 151

III. W ITNESSES

................................ ................................ ...... 152

IV. D IRECTLY OR I NDIRECTLY

................................ .................. 153

V. A NYTHING OF V ALUE

................................ ......................... 153

V I. T O I NFLUENCE AN O FFICIAL A CT

................................ ......... 153

VII. G RATUITIES

................................ ................................ ..... 154



## *****

I. Introduction

- Title 18 U.S.C. § 201 1

Title 1 8 U.S.C. § 201 entitled, bribery of public officials

and witnesses , was enacted to protect governm ent agents and

witnesses from corrupting influences while they are performing

their official duties . It covers any situation in which the judgment of a government agent or witness might be influenced because of payments or gifts made to him, while performing his

official duties

.

II. Public Officials

Two sections of 1 8 U.S.C. § 201 cover “ public officials .” It is a crime to give, offer or promise, a public offici al

, directly or indirectly

, anything of value

, with the intent to influence an y official act by that public official

. Conversely, it is a crime for a public official to either, directly or indirectly , corruptly demand, seek, receive, accept, or agree to accept anything of value

, in

return for influencing any official act by that public official

. The

term “ public official ” includes any officer or employee or person

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entit led “Selected Federal Statutes.”_______________ Bribery 152 acting for or on behalf of the United States, or any department or branch of the United States government, or a juror.

It would be a violation for a person to offer a federal agent five thousand dollars to destroy a piece of evidence that was going to be used in a criminal case. It would also be a violation for the agent to accept the five thousand dollars in exchange for destroying the piece of evidence.

III

. Witness es

Two sections of 18 U.S.C. § 201 cover witnesses . It is a crime to, directly or indirectly , corruptly give, offer or promise, anything of value , to any witness , with the intent to influence

that witness ’ testimony under oath, at any trial, hearing, or other proceeding before any court, or before eithe r of the

Ho uses of Congress. It is also a crime to, directly or indirectly

, corruptly give, offer or promise, anything of value , to any

witness , with the intent to influence the witness to be absent from any trial, hearing or other proceeding as described above.

It a crime under § 201 for a witness to, directly or indirectly , corruptly demand, seek, receive or accept or agree to
accept, anything of value , in return for being influenced in testimony as a witness or in return for being absent from any trial, hearing or other proceeding as desc ribed above.

Under this provision it is a crime to offer Bob the witness five hundred dollars to testify that the defendant was at his house watching television, when the robbery occurred, when this was not true. It would also be a crime for Bob to accep t 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._______________ Bribery 153 IV. Directly or Indirectly

In the previous examples the item of value, the currency, was given directly to either the “ public official ” or witness . It is

also a c rime under § 201 if the item of value is given “indirectly” to someone selected or designated by the “ public official ” or

witness . For example, if a person agreed to give five thousand dollars to the federal agent’s spouse, in exchange for the agent destroying a piece of evidence in a case, this would qualify as a violation of § 201. Using the same example it would also be a violation if the person gave the five thousand dollars to a p rivate school to cover the cost of tuition for the agent’s children.

V. Anything of Value

To charge a defendant with bribery under § 201, it must be proven that “ a thing of value ” was given, offered, promised, demanded, sought or accepted. A “ thing of value ” is br oadly 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 futur e employment, and all expense paid trips or vacations. It would be a crime under § 201 for a person to give a federal agent an all expense paid trip to Hawaii in exchange for the agent destroying a piece of evidence in a criminal case.

VI. To Influence Any Official Act

In order to have a violation of § 201 a connection must be

made between the “ thing o f 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_______________ Bribery 154 the IRS agent to violate his official duty to perform accurate

audits.

VII. Gratuities

Gratuities are also covered by 18 U.S.C. § 201. A gratuity is when a person gives, offers, promises, demands, seeks, receives or accepts anything of value for, or because of any

official act performed, or to be performed by the “ public official .” A gratuity is similar to a bribe in that a “ thing of value ” is involved; however, there is no corrupt intent to influence an official act by th e “ public official .” It is sufficient to demonstrate that a gratuity was offered or requested, given or accepted for the performance of an official act . It is no defense that the gratuity had no effect upon the actions taken by the public

official

.

Government employees may also be prohibited from receiving or taking gifts of all types and value by their agency’s administrative policies. Though some acts may not be worthy of criminal prosecution, the employee could be disciplined for violations of the agency policy._______________ Firearms Violations 155 

## Subpart C

Federal Firearms Violations

I. I NTRODUCTION

................................ ................................ . 156

II. P ROHIBITED P ERSONS

................................ ....................... 157

A. Definition of Firearm

................................ ......................... 157

B. Prohibited Persons

................................ ............................ 157

1. Convicted felon

................................ ............................ 157

2. Fugitive from justice

................................ .................... 158

3. Drug user/addict

................................ ......................... 158

4. Adjudicated mentally defective

................................ ..... 158

5. Non

- permanent resident alien

................................ ...... 158

6. Dishonorably discharged

................................ ............. 158

7. Renounced U.S. citizenship

................................ ......... 158

8

. Domestic relations restraining order

............................ 158

9. Domestic violence misdemeanor conviction

.................. 159

C. Pardon or Expungement

................................ ................... 159

III. E NHANCED M ANDATORY P ENALTIES

................................ ..... 160

A. Introduction

................................ ................................ ...... 160

B. Definitions

................................ ................................ ........ 160

1. Crime of Violence

................................ ......................... 160

2. Drug Trafficking Crime

................................ ................ 160

C. E nhanced Penalties

................................ ........................... 161

1. Firearm Possessed

................................ ....................... 161

2. Firearm Brandished

................................ ..................... 161

3. Firearm Discharged

................................ ..................... 161

IV. P OSSESSION IN F EDERAL F ACILITIES

................................ .... 161

V. W EAPONS R EQUIRING R EGISTRATION

................................ ... 162

A. Introduction

................................ ................................ ...... 162

B. Procedure

................................ ................................ .......... 162

1. Is Registration Required?

................................ ............. 162

2. Is Weapon Registered?

................................ ................ 162

C. Weapons Requiring Registration

................................ ....... 162

1. S hort

- Barrel Shotgun

................................ .................. 162

2. Short

- Barrel Rifle

................................ ......................... 163

3. Machine Guns

................................ ............................. 163

4. Silencer/Muffler

................................ ........................... 163

5. Destructive Devices

................................ ...................... 163_______________ Firearms Violations 156 III. T RACING A F IREARM

................................ ......................... 164

A. Introduction

................................ ................................ ...... 164

B. What Information is required?

................................ .......... 164

C. Trace Information

................................ ............................. 165



## *****

I. Introduction

All law enforcement officers face the possibility of encountering firearms on the job. This course introduces selected federal firearms laws. There are many federal firearms

laws whic h this course does not address. Likewise, this course does not address agency

- specific officer concerns, such as the ability to carry off

- duty, the ability to carry personal weapons,

etc.

Many states and municipalities have firearms laws which

are more r estrictive than federal law. You should acquaint yourself with state and local firearms laws in your jurisdiction. This knowledge can be invaluable. For example, in a state with less restrictive firearms laws, it is not uncommon to spot a citizen carryi ng a concealed weapon. However, in a state that prohibits citizens from carrying concealed weapons, your observation of such a weapon could create reasonable suspicion to justify an investigative stop and often a frisk for weapons.

Some dangerous weapons such as machine guns and

sawed

- off (“short

- barrel”) shotguns can be legally possessed if those in possession have met strict legal requirements. However, as in all cases involving armed suspects, officer safety is a paramount concern. You should always take steps to

insure your safety and the safety of others before investigating to see if a weapon is legally possessed._______________ Firearms Violations 157 II. Title 18 U.S.C. § 922(g)

- Prohibited Persons

A. Definition of “Firearm”

Firearms are generally described as any weapon that will expel a projectile by explosive, including the frame or receiver of such weapon. The definition of “firearm” also includes silencers and destructive devices such as bombs. However, the definition of “firearm” does not include “antique firearms” (those

manufact ured prior to 1899), air

- powered weapons like BB and pellet guns, black powder weapons and authentic replicas of antique firearms.

B. Prohibited Persons

Federal law prohibits c ertain persons from possessing a firearm or ammunition. At trial, the government must prove a connection (“nexus”) between the firearm and interstate

commerce.

Federal law prohibits the following persons from knowingly possessing firearms or ammunition:

1. Convicted felon

A “convicted felon” is anyone “who has be en convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” The Supreme Court determined in 2005 that convictions by foreign courts do not bar an individual from possessing a firearm even if the conviction was for a fel ony

- level offense. The term “any court” does include federal convictions, state convictions, and military courts

- martial convictions.

This is called t he “convicted felon” prohibition. There are a few felony

- level convictions that do not bar an individua l from possessing a firearm. These exceptions include: (1) individuals

convicted of “a federal or state offense pertaining to antitrust violations, unfair trade practices or similar offenses relating to the regulation of business practices ;” o r (2) “any State offense classified by the laws of the State as a misdemeanor and_______________ Firearms Violations 158 punishable by a term of imprisonment of two years or less.” 18 U.S.C. § 921(a)(20).

2. Fugitive from justice

The term “fugitive from justice” means “any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.” 18 U.S.C. § 921(a)(15).

3. U nlawful user or addict of a controlled

substance

4. An individual who has been adjudicated a mental defective or who has been committed to

a mental institution

Note that th e individual must have been “adjudicated” mentally defective or “committed” to a mental institution. Legal advice is sometimes helpful in deciding whether a specific case falls within this category. Voluntary outpatient treatment or counseling does not m ake an individual a prohibited person.

5. An illegal alien or non

- permanent resident alien, unless given special permission to carry a firearm

6. An individual who has been dishonorably discharged from the Armed Forces

7. Anyone who has renounced United States citizenship

8. Anyone subject t o a court order restraining him from harassing, stalking or threatening an intimate partner, or child of such intimate
partner

This prohibition applies only after the prohibited person has had a chance to participate in a hearing bef ore the court._______________ Firearms Violations 159 Additionally, the restraining order must find the person a credible threat or explicitly restrain the prohibited person from the use of force against the protected person.

9. Anyone who has been convicted of a

misdemeanor crime of domesti c violence

This means a conviction for a crime that is a

misdemeanor under federal or state law and that

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, commi tted 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 f orbid lawful possession of a firearm, it must meet two qualifications: the

defendant (1) must have been represented by counsel, or knowingly and intelligently waived the right to counsel; and (2) if right to trial by jury existed, either waived that r ight or been convicted by jury. 18 U.S.C. § 921 (a)(33)(B)(i).

C. Pardon or Expungement

A person who recei ves a complete pardon or expunge ment
of a felony or misdemean or crime of domestic violence conviction is no longer considered convicted , and is, t herefore, no longer disqualified from possessing a firearm. However, possessing firearms remains a crime under federal law if the pardon or expungemen t states that the p e rson may not possess
firearms. 18 U.S.C. § 921 (a)(20) and 18 U.S.C. § 921 (a)(33)(B)(ii)._______________ Firearms Violations 160 III. Title 18 U.S.C. § 924(c)(1)

- Use or Carrying of Firearm during Crime of Violence or Drug Trafficking Crime

A. Introduction

Title 18 U.S.C. § 924(c)(1) provides enhanced mandatory penalties for any person who possesses, brandishes or discharges a firearm during the commission of a crime of violence or drug trafficking crime. The term “brandish” means to display the weapon or make possession of the weapon known. Any person subject to these enhanced penalties is not eligible for parole, probation or a suspended sentence. Further, the law requires that the enhanced penalty run consecutively to the term of imprisonment imposed for the crime of violence or drug trafficking crime.

B. D efinitions

1. “Crime of Violence”

The term “crime of violence” means

an offense that is a felony and

–

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a subs tantial risk that physical force against the person or property of another may be used in the course of committing

the offense.

2. “Drug Trafficking Crime”

The term “drug trafficking crime” means “ any felon y punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Cont rolled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law_______________ Firearms Violations 161 Enforcement Act (46 U.S.C. App. 1901 et seq.).” This is a very

broad definition.

C. Enhanced Penalties

1. Firearm Possessed

If the firearm is possessed during the comm ission of a crime of violence or a drug trafficking crime, the mandatory penalty is imprisonment for not less than five years

.

2. Firearm Brandished

If the firearm is brandished during the commission of a crime of violence or drug trafficking crime, the mandatory penalty is imprisonment for not less than seven years.

3. Firearm Discharged

If the firearm is discharged during the commission of a crime of violence or drug trafficking crime, the mandatory penalty is imprisonment for not le ss than 10 years.

IV. 18 U.S.C. § 930

- Possession of Firearms and Dangerous Wea pons in Federal Facilities

It is unlawful to knowingly bring or possess a “dangerous weapon” into a “ f ederal facility.” The term “ f ederal facility” i s defined broadly to include any building (or pa rts of buildings) owned or leased by the f ederal government where f ederal 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

se rious bodily injury. However, a pocket knife with a blade less

than 2 1⁄2 inches in length is listed by statute as not being a dangerous weapon.

State, local and f ederal law enforcement officers are exempt from this law while performing their official dutie s._______________ Firearms Violations 162 However, this does not give you an automatic right to carry weapons into f ederal facilities. For example, most f ederal courts require you to check your weapons and not bring them into the

court.

V. Weapons listed in 18 U .S.C. § 922(a)(4) which require

r egistration with the Bureau of Alcohol, Tobacco

, Firearms and Explosives [“ATF” or “BATF”]

A. Introduction

Certain weapons are under strict scrutiny. They are not illegal to possess per se, but must be registered with ATF for their possession to be legal. 26 U.S. C. § 5861 prohibits

po ssession of such unregistered weapons. These weapons

include short

- barrel shotguns, short

- barrel rifles, machine guns, silencers/mufflers and destructive devices.

B. Procedure

If you encounter or re asonably suspect that a weapon must be registered, the following procedures are recommended:

1. Determine if Registration Required

D etermine whether the weapon is required to be registered by examining the weapon or measuring the weapon

.

2. Determine if Wea pon Is Registered

If registration is required, determine if the weapon is properly registered to the current possessor o f the weapon.

C. Weapons Requiring Registration

1. Short

- Barrel Shotgun or Weapon Made From a Shotgun

Any short

- barrel shotgun or weapon made from a shotgun must be registered if the barrel of the weapon is less_______________ Firearms Violations 163 than 18 inches in length and/or the overall length of the weapon i s less than 26 inches. To check the weapon for compliance, measure from the tip of the muzzle to a point perpendicular to the end of the stock of the weapon.

2. Short

- Barrel Rifle or Weapon Made From a Rifle

Any short

- barrel rifle or weapon made from a rifle must be registered if the barrel of the weapon is less than 16 inches in length and/or the overall length of the weapon is less than

26 inches. Again, to check the weapon for compliance, measure from the tip of the muzzle to a point perpendicular to the end of the stock of the weapon.

3. Mach ine Gun

All machine guns must be registered. A machine gun is any weapon which shoots, is des igned 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 gu n can be

assembled , and parts which convert an ordinary firearm into a machine gun . Generally, there are two types of machine guns encountered by law enforcement officers: Originally manufactured machine guns and those converted from semiautomatic weapons

.

4. Silencer/Muffler

Any device for silencing, muffling, or diminishing the explosive noise of a firearm must be registered.

5. Destru ctive Device

A ll 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_______________ Firearms Violations 164 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

diam eter, except a shotgun or shotgun shell which is generally recognized as particularly suitable for sporting purposes. Common examples of destructive devices include: rocket launchers, mortars, land mines, and hand grenades.

VI. Tracing a Firearm through the National Tracing Center, Bureau of Alcohol, Tobacco, Firearms and Explosives

A. Introduction

The ATF National Tracing Ce nter handles about 250,000 firearm trace requests annually. Tracing a firearm may assist

your investigation in any number of ways. The main reason you trace firearms is to link weapons used criminally to a specific person. Additionally, the trace may ass ist in identifying : (1) stolen property; (2) associates of suspects ; and (3) sources and suppliers of firearms for criminal suspects. Finally, tracing firearms helps to prove the connection (“nexus”)

between the firearm and interstate commerce

-- a connect ion that must be proved for some federal firearms violations.

B. What Information is Required to Trace a Firearm?

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

.

**•** Make: For example, a “Colt.”

**•** Model: For example, a “Det ective Special.”

**•** Caliber/Gauge: For example, “.38 Caliber.”

**•** Serial Number: For example, “33419.”_______________ Firearms Violations 165 C. Infor mation Gained from Successful Trace

Tracing the weapon should reveal the following information: the manufacturer, the importe r if the weapon is foreign

- made, the wholesale distributor, the retail gun dealer

and the first lawful retail purchaser from the dealer. Subsequent transactions (like sales between private citizens) might also be noted._______________ Firearms Violations 166 

### NOTES_______________ Drug Offenses 167 

## Subpart D

Federal Drug Offenses

I. I NTRODUCTION

................................ ................................ . 167

II. C ONTROLLED S UBSTANCES

................................ ................. 167

A. Defined

................................ ................................ ............. 167

B. Possession

................................ ................................ ........ 168

C. Distribution

................................ ................................ ...... 169

D. Penalti es and Charging

................................ ..................... 170



## *****

I. Introduction

Due to pervasive substance abuse in our society, it is imperative that law enforcement officers have a working knowledge of controlled substanc e offenses. At various times during their ca reers, law enforcement officers, regardless of agency assignment, are likely to face a variety of controlled

substance offenses.

II. Controlled Substances

Unlawful and knowing possession and possession with the intent to distribute (transfer) c ontrolled substances are criminal offenses. These substances would be legal to possess and distribute, but for the statutes which “control” them.

Alcohol and tobacco are not listed as controlled substances.

A. Defined

A controlled substance is defined by federal statute as a “drug or other substance...” identified in schedules I, II, III, IV, and V of Part B of [21 U.S.C. § 812]

. Schedule I substances are considered the most dangerous, as they have no currently accepted medical use and have a very high potential for abuse. The remaining schedules list drugs based on their accepted medical use and their potential for abuse. The schedules list_______________ Drug Offenses 168 drugs by their scientific names. They also list finished drugs like cocaine, and the raw material, such as cocoa leaves, from which it is created. Controlled substance analogs are substances which have substantially similar chemical

structures to controlled substances . Analogs are criminalized, as are immediate precursor chemicals necessary to create the drugs. When charging these offenses, the controlled substance must be listed in one of the five schedules and must be proven beyond a reasonable doubt.

B. Possessi on

Pursuant to 2 1 U.S.C. § 844 1 , it is “unlawful for any person knowingly or intentionally to possess a controlled

substance...” unless such substance was o btained directly from a medical practitioner pursuant to a valid prescription or as otherwise authorized by law. Thus, a person with a valid prescription from his physician or who has received the drug from his physician for use in treating an ailment woul d be in lawful possession of the drug. Knowingly means that a person realizes what he is doing and is aware of the nature of the conduct and does not act through ignorance, mistake, or accident. A person’s words, acts, or omissions can be used to

determi ne 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 contro l the substance. Knowing possession means that the person has knowledge of

the nature of the possessed substance. It is not necessary that the person knows the exact nature of the substance (that it is

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Drug Offenses 169 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).

C onstructive 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 i n their desk drawer, they have constructive possession. Joint possession occurs when more than one person possesses the same controlled substance. For example, if two people knowingly transport cocaine, a controlled substance, in the trunk of a car, they jointly possess the cocaine through constructive possession.

Any amount of a controlled substance can support a

conviction for a properly charged offense. A trace amount of cocaine, a marijuana seed, residue on a roach clip, or a dried solution on a syr inge 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 i tself.

C. Distribution

Title 21 U.S.C. § 841(a) 2 makes it unlawful for any person knowingly or intentionally: “(1) to manufacture, distribute, or dispen se, or possess with intent to manufacture, distribute, or dispense, a controlled substance...” Possession with intent t o

2 This statute c an be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Drug Offenses 170 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

ar rangements can all be used to circumstantially prove possession with intent to distribute. No commercial transaction (exchange of drugs for money) is required. All that is necessary is evidence to support the knowing distribution (transfer) or possession with intent to distribute (transfer) the controlled

substance. It is the law enforcement officer’s responsibility to develop facts to prove elements of the offense.

D. Penalties and Charging

Penalties are dependent upon the amount and type of drug (which schedule is affected) and how the offense is charged. Distr ibuting controlled substances within 1,000 feet of a school or playground, or at a publ ic transportation highway rest stop or truck stop, o r by usin g or employing a minor, are chargeable offenses with enhanced punishments. Attempts, conspiracies (no overt act is required for a drug conspiracy

– only the agreement is required), and importation are other examples of ways in which controlled substances can be charged and penalized. Simple posse ssion of “user amounts” is

a misdemeanor offense. Offenses ca n result in criminal forfeitures and civil penalties as well._______________ Entrapment 171 

## Subpart E

The Entrapment Defense

I. I NTRODUCTION AND O VERVIEW

................................ ........... 171

II. H OW THE E NTRAPMENT D EFENSE W ORKS

............................. 172

III. A NALYSIS OF THE E NTRAPMENT D EFENSE

............................. 172

A. Government Inducement

................................ ................... 172

1. Permitted Inducements

................................ ................ 173

2. Prohibited Inducements

................................ ............... 173

B. Predisposition

................................ ................................ ... 173

C. Examples of Predisposition

................................ ............... 174

1. An Existing Course of Similar Conduct

........................ 174

2. Previously Formed Intent

................................ ............. 174

3. A Ready Response to a Criminal Offer

.......................... 175

D. Examples of NO Predisposition

................................ ......... 175

1. Extreme Appeals to Emotion

................................ ........ 175

2. Threats

................................ ................................ ........ 175

3. Excessive Amounts of Money

................................ ....... 175

I V. C ONCLUSION

................................ ................................ .... 176



## *****

I. Introduction and Overview

Entrapment is the act of government officers or their agents (e.g., informants) inducing a person to commit a crime not contemplated by that person, for the purpose of prosecuting

that individual. It is the conception and planning of an offense by officers or their agents and their procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer/agent. Government agents may not originat e 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 act ivity of law enforcement officials. This____________ ___ Entrapment 172 means that entrapment cannot result from the inducements of a purely private citizen, but must be the product of government conduct initiated by its officers or their agents.

II. Overview of How the Entrapment Def ense Works

Entrapment is an affirmative defense. The defendant must establish sufficient evidence from which a reasonable jury could find entrapment. This is typically done during the government’s case

- in

- chief through the cross

- examination of the government’s witnesses. It can also be a part of the defense case if one is presented. The question of entrapment is one for the jury to decide unless the right to j ury trial is waived and the case is submitted to the judge.

The critical factor in the entrapment defense is the state

of mind of the defendant. At issue is the defendant’s predisposition to commit the offense charged. The question is whether the defendant, before contact with law enforcement officers or their agents, already possessed the state of mind to commit the offense charged. Once the defendant has raised the entrapment defense, the government must negate it by establishing predisposition beyond a reasonable doubt. If defendant’s predisposition is established, there is no
entrapment.

III. Analysis of the Entrapment Defense

A valid entrapment defense consists of two components:

**•** Government inducement of the crime, and

**•** Lack of predisposition by the defendant to commit

the crime.

A. Government Inducement

Entrapment occurs when the criminal activity is induced by government officers or agents. Inducement by law

enforcement officers may take many forms including_______________ Entrapment 173 persuasion, fraudulent re presentations, threats, coercive tactics, harassment, promises of reward, or pleas based upon need, sympathy, or friendship.

1. Permitted inducements

Some inducements are unlikely to tempt a law

- abiding person to commit a crime. Some inducements are so innocuous that courts generally condone their use. Examples include: use of decoys (‘robo’ deer

– metal decoys to catch poachers), payments of reasonable amounts of money, assistance in facilitating the commission of the crime by providing equipment or supplies (e.g., paper for counterfeiting or chemicals for drug manufacture).

2. Prohibited inducements

Some inducements are so coercive that their use jeopardizes any chance of successful prosecution. These may

create t he appearance, and sometimes the reality, of outright duress. Examples are:

**•** a threat against the well

- being of the target’s family

**•** extreme appeals to the sympathy or emotions of the person solicited

**•** offers of unreasonable amounts of money to an impover ished or financially desperate target

**•** continual pressure such as repeated phone calls, visits or requests; repeated insistence, badgering

**•** violent demonstrations or threats.

B. Predisposition

Predisposition does not mean that the defendant on his own, under some conceivable set of circumstances, might____________ ___ Entrapment 174 commit the crime. Predisposition means that the defendant is

pres ently ready and willing to commit the crime. Predisposition is a state of mind that readily responds to the opportunity furnished by the government or its agent to commit the offense.

Predisposition can be shown in many ways such as:

**•** statements made by the defendant before, during

, and even after the inducement

**•** character and reputation

**•** motive for committing the crime

**•** eagerness or ready acceptance of the government’s suggestion

**•** possession of contraband for sale on his premises

**•** prior convictions or criminal activity of the same or similar nature evidencing intent, motive or knowledge

**•** acceptance of an offer to supply the last essential ingredient to manufacture drugs.

C. Examples of Fact Situations Establishing Predisposition

1. An Existing Course of Similar Conduct

The defendants h ave been selling cocaine for some time when an undercover agent makes a purchase from them. The criminal intent or design did not originate from the government.

2. Previously Formed Intent

The defendant had purchased paper and ink and was trying to get a counterfeit operation underway when government_______________ Entrapment 175 agents heard of her intent and provided additional materials and expertise. The criminal intent in this instance was not the creation of the government.

3. A Ready Response to a Criminal Offer

An undercover agent asks a bootlegger, “How much for a bottle?” The bootlegger promptly replies, “$5.00.” Here, it was obviously not necessary for the agent to “lure, inspire, or persuade” the bootlegger, who was clear ly ready and willing to commit the crime as soon as an opportunity arose.

D. Examples of Fact Situations Suggesting NO Predisposition

1. Extreme Appeals to Emotion

An undercover government agent approaches a nurse in a hospital and asks for a prescription pain

- killing drug. The

nurse is reluct ant to provide it. The agent persists, telling the nurse that his daughter is dying of cancer and he can’t stand to see his daughter suffer. After numerous requests, the nurse finally relents and provides a small amount of the drug.

2. Threats

A government informant advises a government agent that Bob might be interested in drug smuggling. The informant then kidnaps Bob’s wife and tells Bob he had bet ter smuggle a load

of cocaine for the informant to sell or the informant will kill his wife. Bob agrees to smuggle the cocaine.

3. Excessive Am ounts of Money

An ATF agent knows that a middle class businessman is having serious money problems. The agent offers the businessman $75 million to smuggle some illegal weapons into the country. After a f ew requests, the businessman agrees to smuggle the weapons.____________ ___ Entrapment 176 IV. Conclusion

Whenever you induce a person to commit a crime, you should be prepared to refute an entrapment defense with facts

that demonstrate the defendant’ s predisposition. Thorough reports detailing statements and actions of the defendant can greatly enhance the government’s ability to negate the defense. Be aware however, the Supreme Court has clearly indicated that outrageous government condu ct, which o rchestrates a

criminal offense

, can be as a matter of law, an absolute bar to a prosecution even if the defendant is predisposed. Thus, proper investigation planning, to include monitoring and controlling

informants to ensure even

- handed treatment, is ess ential._______________ False Statements 177 

## Subpart F

False Statements

I. E LEMENTS

................................ ................................ ....... 177

A. Regarding Certain Federal Matters

................................ .... 177

1. Judicial Proceedings

................................ .................... 178

2. Legislative Branch Matters

................................ ........... 178

B. Knowingly and Willful ly

- Intent

................................ ........ 179

C. False Material Statement or Con cealing a Material Fact

.... 179



## *****

I. Elements

In order to successfully pros ecute a defendant for violating 18 U.S.C. § 1001 1 , the following elements must be

met:

**•** The defendant

**•** Regarding certain federal matters

**•** knowingly and wi llfully

**•** ma d e a false material statement, or

**•** conceal ed or cover ed up a material fa ct.

A. Regarding Certain Federal Matters

Section 1001 applies to false sta tements made in a matter within the criminal jurisdiction of the executive, legislative, or judicial branches. The statute applies to statements made

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitl ed “Selected Federal Statutes.”_______________ False Statements 178 during administrative, civil, or criminal investigations, or during regulatory or rule

- making activities, with the following

limitations:

1. Judicial Proceedings

Section (a) of the Act does not apply to a party or that party’s counsel for any statements, representations, writings or documents submitted by them to a judge or magistrate during a judicial proceeding. Thus, non

- parties could be prosecuted for any false statements made during a judicial proceeding, while a party could only be prosecuted for fa lse submissions made to a judicial entity during administrative housekeeping matters. Such entities include, for example, the Office of Probation and

the Clerk of the Court.

2. Legislative Branch Matters

Section (a) of the Act applies to matters within the jurisdiction of the legislative branch only if they relate to administrative matters or Congressional investigations

conducted consistent with applicable Congressional rules. Administrative matters include such things as financial disclosure filings, claims to the House Finance Office, and submissions to legislative entities, such as the General Accounting Office, the Government Printing Office, the Library of Congress, the Office of the Inspector General of the House, and the Capitol Police.

Duly authorized investigations or reviews are those that are initiated through a formal action of a House or Senate committee, or the whole House or Senate . Inquiries by members of Congress or their staff are not a duly authorized investigation under § 1001.

The statute covers false statements made to a federal agency by a witness/informant about alleged criminal acts within the jurisdiction of the agency, even when no such criminal acts actually occurred. False statements made to an agency regarding the regulatory functions of a federal department or agency fall under § 1001. Courts have upheld_______________ False Statements 179 convictions under this section where individuals have made

f alse statements to state agencies which are recipients of federal

funds.

B. Knowingly and Willfully

- Intent

In order to be a violation of § 1 001, a statem ent must be capable of affecting the exercise of a government function. The

intent must be to deceive or mislead. Intent to defraud is not required for a successful § 1001 prosecution.

C. Makes a False Material Statement or Conceals or Covers Up a Mate rial Fact

The false statement must be material for a person to be convicted of making a false statement under § 1001. The Supreme Court has held that a material statement ... must have a natural tendency to influence, or be capable of influencing, the decision of the decision making body to which it was addressed. Materiality is a mixed question of law and fact for

the jury.

A false statement, under § 1001, is not required to be

made under oath or affirmation. The false statement can be oral (a statement made during an interview) or can be written (part of a document submitted to an agency). Case law has

shown that fa lse statements made on federal tax documents, in interviews related to a tax investigation, on an application for federal employment, and during an interview with a Customs official at a secondary inspection site were all violations of §

1001.

At one time , some circuits held that false “exculpatory no” statements made by a suspect to agents in a criminal investigation did not violate § 1001. An “exculpatory no” statement is a statement in which a suspect merely deni es that he is guilty of the crime which he committed. However, the Supreme Court has now ruled that § 1001 covers any false statement, of whatever kind, including the use of the word “no” in response to a ques tion. A suspect has the right to remain

silen t but no right to lie._______________ False Statements 180 

### NOTES_______________ Theft 181 

## Subpart G

Theft, Embezzlement

, and Conversion

I. I NTRODUCTION

................................ ................................ . 181

II. T ERMS OF THE S TATUTE

................................ .................... 181

III. T HEFT

................................ ................................ ............ 182

A. Elements

................................ ................................ ........... 182

B. Example

................................ ................................ ............ 182

IV. E MBEZZLEMENT

................................ ............................... 183

A. Elements

................................ ................................ ........... 183

B. Example

................................ ................................ ............ 184

V. C ONVERSION

................................ ................................ .... 185

A. Elements

................................ ................................ ........... 185

B. Example

................................ ................................ ............ 185

VI. R ECEIPT OF S TOLEN P ROPERTY

................................ .......... 186

A. Elements

................................ ................................ ........... 186

B. Example

................................ ................................ ............ 186



## *****

I. Introduction

Title 1 8 U.S.C. § 641 1 , titled “Public Money, Property or Records,” is a comprehensive statute designed to address four crimes which, at common law, were separate and distinct offenses. The statute applies to theft, embezzlement, conversion, and receiving stolen property of the United States government or any department or agency thereof.

II. Terms of the Statute

For purposes of the statute and this text, “property” refers to any records, vouchers, money, or things of value of (or any property made or being made under contract for) the United

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”___ ____________ Theft 182 States or a ny department or agency thereof. If the value of the property stolen, embezzled, converted, or received is more than $1,000, the offense is a felony and could result in ten y ears 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 1 8 U.S.C. § 3571, a maximum fine of $100,000.

III. Theft

Secti on 641 codifies the common law crime of larceny. “Theft” is defined as the wrongful taking and carrying away of property belonging to the United States government or any agency thereof with the intent to deprive the Unit ed States government of the use or benefit of the property so taken.

A. Elements

Three elements must be proven to convict a defendant of “theft” under § 641. These elements are:

**•** That the defendant voluntarily, intentiona lly, and knowingly

**•** Stole property belonging to the United States or any department or agency thereof

**•** With the intent to deprive the United States of the use or benefit of the property so taken.

B. Example

A defendant tak es a vehicle that belongs to the United States government, intending to keep it for his own use and enjoyment. The defendant is guilty of theft of government property. He knowingly stole property belonging to the United States with the intent to deprive the United States of the use of the property._______________ Theft 183 A defendant “steals” property when he or she takes and

carrie s away property belonging to another with the intent to deprive the owner of the property. To successfully prosecute a defendant for theft under § 641, the government must prove that the defendant had, at the time of the taking, the specific intent to dep rive the United States of the use or benefit of the property. The defendant is not required to know that the item he stole belonged to the United States or one of its departments or agencies. Rather, all that needs to be proven is that the

defendant knew he was taking something that did not belong to him. The fact that the item belonged to the United States government is something the government must show in order to furnish a basis for federal jurisdiction over the crime. The defendant’s knowledge of t his jurisdictional fact is irrelevant. In order to prove that an item belongs to the United States, the government must prove that it had “title to, possession of, or control over” that item. If the defendant takes the property believing that it was abandoned, that is a defense to a prosecution brought under § 641. In cases where the crime is alleged to have been a felony, the government must prove one

additional element: That the value of the item stolen is greater than $1,000.

IV. Embezzlement

“Embezzlement” is defined as the wrongful, intentional taking of property of another by an individual to whom the property had been lawfully given by reason of some office, employment, or position of trust (such as a bank manager). In other words, the original taking of the property is lawful or done

with the express or implied consent of the owner. However, once the property is lawfully acquired by reason of the defendant’s position of trust (sometimes referred to as a “fiduciary” relationship), the defendant intentionally takes the property and applies it f or his personal use

.

A. Elements

In order to prove the crime of embezzlement, the government must again prove three elements. With the___ ____________ Theft 184 exception of the second element, the elements of embezzlement

are the same as those fo r theft. The se elements are:

**•** That the defendant voluntarily, intentionally, and knowingly

**•** Embezzled property belonging to the United States or any department or agency thereof

**•** With the intent to deprive the United States of the use or benefit of the pr operty so taken.

B. Example

A federal employee is responsible for selling stamps to the public. Instead of depositing the money received into a government account, the employee keeps the money for his personal use. The em ployee has committed the crime of embezzlement. The money was property of the United States; the employee was entrusted with the money legally; he deprived the United States of the use of the money taken; and intentionally appropriated the money to his ow n personal use.

While the elements are virtually identical for both crimes, embezzlement and theft are separate and distinct offenses. With the crime of embezzlement, the original acquisition of the property is lawful; there is no fraud or crime committe d in the original obtaining of the property. It is only after the property

has been entrusted to him or her that the defendant forms the intent to deprive the owner of the use of the property taken. This is the primary difference between embezzlement and theft of government property. In embezzlement, the original taking was lawful or with the consent of the owner, and the intent to deprive the United States of the property originated later. In theft, the intent to deprive the United States of the proper ty must exist at the time of the taking. Again, if the crime is alleged to have been a felony, the government must also prove that the value of the property embezzled was over $1,000._______________ Theft 185 V. Conversion

“Conversion” is defined as wrongfully depriving the United States or any department or agency thereof of its property. In its most basic form, “conversion” sim ply means that an individual lawfully comes into possession of United States property and wrongfully converts it to his or her own use. Conversion does not require that the defendant intend to keep the property permanently, nor does it require an unlawfu l taking by the defendant. Under § 641, conversion may include misuse or abuse of government property, as well as use of the property in an unauthorized manner or to an unauthorized

extent.

A. Elements

Like theft and embe zzlement, there are three elements necessary to convict a defendant of conversion under § 641. Again, with the exception of the second element

, the elements of

conversion are identical to those of theft and embezzlement.

The se elements are :

**•** That the def endant voluntarily, intentionally, and knowingly;

**•** Converted property belonging to the United States or any department or agency thereof;

**•** With the intent to deprive the United States of the use or benefit of the property so taken.

B. Example

A federal agency has a government vehicle for its employees to use for official purposes. At lunch one afternoon, one of the employees uses the government vehicle to go shopping for a couple of hours at a local mall. The employee is guilty of conversion under § 641. The employee wrongfully deprived the United States government of its property during the unauthorized use of the government vehicle.___ ____________ Theft 186 VI. Receipt of Stolen Property

The statute also prohibits knowingly receiving stolen, embezzled, or converted United States government property.

Be cause the individual receiving the stolen property knows that it has been stolen, he or she does not have any legal interest in the property, which continues to belong to the party from which it was stolen (i.e., the United States).

A. Elements

In order to convict a defendant of receiving stolen property, the government must prove these four elements :

**•** That the defendant voluntarily, intentionally, and knowingly received

**•** Stolen, embezzled, or converted property belonging

t o the United States government or any department or agency thereof

**•** Knowing that the property had been stolen, embezzled, or converted

**•** With the intent to deprive the United States of the use or benefit of the property by using it for his or her own gain o r purposes.

B. Example

A federal employee steals a computer belonging to the United States government. The employee takes it to a friend and asks him if he would like to buy it at a discount. When asked about the origin of the computer, the employee admits to the friend that it was stolen. The friend decides to purchase the computer anyway for his own use. While the federal employee is responsible for theft of government property, the friend is responsible for receiving stolen property. The friend knowingly received the computer; the computer had been stolen from the United States government or any agency or department thereof;_______________ Theft 187 the friend had knowledge that the computer had been stolen; and the friend received the prope rty with the intent to deprive the United States of the use of the property by converting it to

his own use.

As with theft, a defendant accused of receiving stolen property under § 641 need not have knowledge that the stolen property belonged to the Unite d States government or any agency or department thereof, although he does need to know that the property was stolen. Knowledge of who actually owned the property is a jurisdictional issue, not an ele ment of the

offense. If the value of the property is over $1,000, the crime is a felony.___ ____________ Theft 188 

### NOTES_______________ Obstruction of Justice 189 

## Subpart H

Obstruction of Justice

I. I NTRODUCTI ON

................................ ................................ . 189

II. T ITLE 18 U.S.C. § 1503

................................ ................... 190

III. T ITLE 18 U.S.C. § 1510

................................ ................... 191

IV. T ITLE 18 U.S.C. § 1512

................................ ................... 192

V. T ITLE 18 U.S.C. § 1513

................................ ................... 195

VI. § 1503 O MNIBUS C LAUSE AND § 1512

................................ 196

VII. T HE V ICTIM AND W ITNESS P ROTECTION A CT OF 1982

............ 197



## *****

I. Introduction

The part of the federal criminal code dealing with

obstructio n of justice covers those statutes that protect the integrity of proceedings before the federal judiciary, federal executive departments and agencies, and Congress, as well as the individuals connected with those proceedings. This area of the law saw majo r revisions as a result of the passage of the

Victim and Witness Protection Act in 1982. Prior to these revisions, the primary focus of the statutes was protection of

witn esses and parties in ongoing proceedings. Now, the focus is

on the intent of the defendants.

The statutes provide protection for victims of crime, witnesses and informants. Also, there is protection for any person who is injured, threatened, intimidated , harassed, or retaliated against, on account of his relationship to a victim, witness or informant. Property is also protected in many

situations._______________ Obstruction of Justice 190 II. Title 18 U.S.C. § 1503 1

- Influencing or Injuring

Officers or Jurors Generally

Congress enacted § 1503 to ensure that judicial proceedings would take place in an atmosphere conducive to seeking and finding the truth, without fear of intimidation, coercion or corruption.

The first part of § 1503 covers tampering with, and retaliation against jurors and officers of the court. Officers of the court include judges, prosecutors, and defense counsel.

Law enforcement officers are not considered officers of the court under § 1503. Specifically, § 1503 is designed to protect grand or petit jurors, and officers of the court from being intimidated, influenced or impeded, by threat or force, while discharging their official duties. It also protects grand or petit jurors from

retaliati on if they are injured on account of any indictment passed, or verdict rendered. Officers of the court are protected from retaliation if they are injured on account of something they did while performing their official duties. The statute protects

these individuals as well as their property.

Section 1503 also contains an omnibus clause prohibiting obstruction of the “due administration of ju stice.” This clause
protects persons who participate in federal criminal

in vestigations, (e.g., grand juries) or judicial proceedings. The omnibus clause is interpreted very broadly and covers a wide range of activities that may affect the operation of the federal courts. For example, trying to destroy the government’s

evidence would obstruct the “due administration of justice.” The “due administration of justice” would also be obstructed by an attempt to kill a government witness or by an attempt to get a witness to retract his testimony while the defendant’s

conviction is on appeal. In the event the person obtained a new trial, the death of a witness or the issue of perjured testimony would affect the due administration of justice.

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Obstruction of Justice 191 In a prosecution for tampering with a juror or officer of the court under § 1503, the governme nt is required to prove (1) the existence of a pending judicial proceeding, such as a grand jury investigation, a pending criminal case, or an open criminal appeal, and (2) that the defendant acted with the specific intent to obstruct justice; that is, the defendant was aware of the existence of a pending federal judicial proceeding and his conduct was intended to obstruct that proceeding.

In a prosecution for retaliating against a juror under § 1503, the government must prove that the defendant injured

th e juror because of a verdict or indictment assented to by the juror, or on account of the person having been a juror. In a prosecution for retaliating against an officer of the court under § 1503, the government must prove that the defendant injured

the o fficer of the court because of something he did while in the performance of his official duties.

III. Title 18 U.S.C. § 1510 2

- Obstruction of Criminal Investigations

Section 1510 (a) makes it a criminal offense to obstruct, delay or prevent the communication of information regarding a

federal crime to a law enforc ement officer (LEO) through bribery

.

The objective of § 1510 is to protect the flow of

information to fed eral criminal investigators before the initiation of formal federal judicial proceedings. It is aimed at those who try to buy the silence of actual or potential witnesses by bribing

them.

In any prosecution under § 1510, the government must prove that th e defendant knew that the intended recipient of the

information was a federal LEO , and that the defendant acted with the specific intent to obstruct, delay or prevent the

communication of that information.

2 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Obstruction of Justice 192 The defendant does not need to know that the

infor mation has already been, or is about to be supplied to a

federal LEO . Rather, the government is only required to prove

that the defendant believed that information might be supplied

to a federal LEO . For example, whe n an airline captain offers money to h is crew if they will not reveal to a United States Customs search team that there are drugs hidden on board the aircraft, a violation of § 1510 has occurred.

The government is not required to show that the person with the information actually intended to give it to a federal

LEO , but only that the defendant believed the person might do so in the future. It is not necessary that the defendant know the precise content of the information that he is trying to prevent from being communicated to a federal LEO

. Finally, the government does not have to prove that the person with the information felt threatened by the defendant’s attempt to buy his silence. The government only has to show that the defendant, by bribing the person, tried to prevent the disclosure

of information to a federal LEO

.

There is no requ irement that an investigation be underway or ongoing at the time when the defendant tries to prevent the communication of information to the federal law

enforceme nt officer. Actions taken by the defendant, prior to the commencement of a formal investigation come within the statute if the government can prove the defendant believed that the person he sought to bribe had relevant information and might give it to a federal LEO

.

IV. Title 18 U.S.C. § 1512 3

- T ampering with a Witness, Victim, or an Informant

Section 1512 is desig ned to protect witnesses, victims, and informants before they testify or communicate information to a law enforcement officer or federal judge. It prohibits conduct that is intended to influence the presentati on of

3 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Obstruction of Justice 193 evidence in federal proceedings, (e.g. grand jury or criminal trials) or the communication of information to federal law enforcement officers or federal judges. It applies to all federal civil and criminal proceedings as well as to all proceedings

b efore Congress, executive departments, and administrative agencies. Unlike § 1503 there is no requirement that the government prove the existence of a “pending proceeding” at the time of the offense. Section 1512 applies to witnesses, victims,

and inform ants and includes third parties such as spouses and family members. For example, if a person threatens to kill a witness’ child, with the intent to prevent the witness from testifying, a violation of § 1512 has occurred.

Section 1512 covers four kinds of prohibited conduct, or tampering:

A. Killing, attempting to kill, or using physical force against another person with the intent to:

**•** prevent their attendance or testimony in an official proceeding, or

**•** prevent the production of documents, or other objec ts in an official proceeding, or

**•** prevent the communication of a federal

criminal violation to a federal law enforcement officer or judge.

B. Intimidating, threatening or misleading another person with the intent to:

**•** prevent their attendance or testimony in an official proceeding, or

**•** prevent the production of documents or other objects in an official proceeding, or

**•** prevent the communication of a federal

criminal violation to a federal law enforcement officer or judge._______________ Obstruction of Justice 194 C. Harassing another person that re sults in hindering, delaying, preventing, or dissuading:

**•** their attendance or testimony in an official proceeding, or

**•** the communication of a federal criminal

violation to a federal law enforcement officer or judge.

D. Altering, destroying, mutilating or concealing a record, document or other object with the intent to impair the object’s integrity or availability for use in an official proceeding.

Section 1512 provides protection against a wide variety of conduct. It protects aga inst violent tampering such as killing, assaulting, or threatening a witness, victim or informant. It also protects against more subtle forms of tampering such as deliberately using false or misleading statements to cause a witness, victim or informant to fail to appear at a proceeding, or to destroy or alter evidence. Whenever a defendant makes contact with a witness, victim or informant it is important to establish the defendant’s intent. Not all contact made by a defendant with a witness, victim or in formant is going to automatically be considered tampering. If the defendant’s intent is to injure, threaten, mislead or harass the witness, victim or informant in regard to his attendance or participation in an investigation or proceeding, a violation of § 1512 has occurred. However, if a defendant contacts a victim to apologize for his actions or to offer restitution without intending to affect the victim’s attendance or testimony in a proceeding, a violation of § 1512 has not occurred.

The statute prov ides for extraterritorial jurisdiction. This means that a person can be prosecuted for tampering with a witness, victim or informant even if th e conduct constituting the tampering occurs outside the United States._______________ Obstruction of Justice 195 V. Title 18 U.S.C. § 1513 4

- Retaliating Against a Witness, Victim or an Informant

Section 1513 is designed to provide protection to witnesses, victims and informants , and their pro perty , after they have testified in a federal proceeding, or reported information to a federal law enforcement officer. Like § 1512 it protects not only witnesses, victims and informants, but it also covers third parties as well. For example if a person injures a witness’ friend in an effort to retaliate against the witness for having testified in a federal proceeding, a violation of § 1513 has

occurred.

Section 1513 covers three types of prohibited conduct

that constitute retaliation.

A. Killing or a ttempting to kill a witness, victim or informant with the intent to retaliate against them

for:

**•** their attendance or testimony in an official federal proceeding, or

**•** the production of a document or other object in a federal proceeding, or

**•** the communicatio n of a federal violation to a

federal law enforcement officer.

B. Causing bodily injury to a witness, victim or informant, or damage to their property with the intent to retaliate against them for:

**•** their attendance or testimony in an official federal pro ceeding, or

4 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment enti tled “Selected Federal Statutes.”_______________ Obstruction of Justice 196 **•** the production of a document or other object in a federal proceeding, or

**•** the communication of a federal violation to a

federal law enforcement officer.

C. Taking any action harmful against a witness, victim or informant, to include interfer ence with their lawful employment or livelihood, with the intent to retaliate against them for providing information, relating to a federal criminal violation, to a federal

law enforcement officer.

Section 1513 covers retaliation, attempts to retaliate and threats of retaliation against witnesses, victims and informants. The government must first prove that either the retaliation, attempt to retaliate or threat to retaliate was made against a witness, victim or informant who had testified or reported

information to a federal law enforcement officer. Second the government must prove that the defendant acted with the specific intent to retaliate against the individual because of his testimony, or reporting of inf ormation. The defendant need not intend to carry out the threat; simply making the threat is

sufficient.

Like § 1512, § 1513 provides for extraterritorial jurisdiction

.

VI. § 1503 Omnibus Clause and § 1512

Prior to 1982 a defe ndant could be charged under the

omnibus clause of § 1503 for obstructing the due administration of justice if he tampered with a witness in pending judicial proceedings. The VWPA of 1982 was enacted to give victims of crimes and witnesses more protection than was presently being afforded to them under the Omnibus

Clause of § 1503. Specifically, it did not require a pending judicial proceeding before a defendant could be charged with

obstruct ion of justice for tampering. The VWPA of 1982 created § 1512 “Tampering With A Witness, Victim or Informant.” While_______________ Obstruction of Justice 197 the VWPA created § 1512 to prosecute those who tampered with witnesses, the Omnibus Clause of § 1503 was still a vailable to prosecute defendants who obstructed the “due administration of justice” by tampering with a witness in a pending judicial proceeding. Therefore, a person who tampered with a witness in a pending judicial proceeding c ould potentially be charged with obstruction of justice under both § 1512 and § 1503 (Omnibus Clause).

With the enactment of § 1512 some prosecutors elected to use it exclusively for witness tampering prosecutions, while some continued to use §1503 only, wh ile some used both § 1503 and §1512 to charge the person with two criminal offenses

for the same conduct.

The appellate courts were eventually faced with the prospect of determining whether § 1512 was the exclusive charge to bring against a defendant for witness tampering, or whether §1503 could be used, or if both § 1512 and § 1503 could be used. A majority of the circuits have held that in prosecuting witness tampering cases the government may charge the defendant under § 1503, or § 1512, or both. A

mino rity of the circuits have held that § 1512 is the exclusive statute to use when prosecuting a defendant for witness tampering.

VII. Victims’ Rights and Justice for All Acts of 2004

Co ngress enacted The Victim and Witness Protection Act of 1982 (VWPA). In the VWPA Congress established a list of victims’ rights and directed the Department of Justice, alo ng with other agencies, to make their best efforts to see that crime victims were afforded these rights. Congress enacted the VWPA as a response to the statistical problem that one of every three

households in the United States was a victim of crime in som e manner. Its purpose was to enhance and protect the necessary role of victims and witnesses in the federal criminal justice process. Congress wanted to ensure that the federal government did all that was possible, within the limits of available_______________ Obstruction of Justice 198 resource s, to assist victims and witnesses of crime without infringing on the constitutional rights of a defendant.

The VWPA authorized the imposition of r estitution to a victim in addition to any other sentence imposed on a defendant. The government has the burden of proving the amount of the victim’s loss. Every Pre

- sentence Investigative Report prepared by the U.S. Probation Officer for the judge’s

cons ideration before sentence is imposed must include a Victim Impact Statement. While the provision of such information is the responsibility of the U.S. Attorney’s Office, law enforcement officers should be expected to be involved in gathering facts for

inc lusion in this report. Although each U.S. Attorney’s Office employs a Victim

- Witness Coordinator, it cannot be expected that one person can attend to the details of every criminal case in the office. Further, the Crime Control Act of 1994 created

four cl asses of crimes in which restitution is mandatory as part

of the sentence. These four classes are for victims of sexual abuse, sexual exploitation and other abuses of children, telemarketing fraud, and domestic violence.

To give effect to the VWPA, the A ttorney General was required to develop and implement guidelines consistent with the purposes of the Act. All other federal agencies having law enforcement functions were required to adopt similar guidelines. The Act also required that all law enforcemen t personnel receive training on their responsibilities in carrying out the guidelines developed by the Attorney General.

The guidelines required that every office of every investigative agency designate one or more persons specifically for the purpose of carrying out the requirements of the VWPA. All offices are required to keep on file a written description of the procedures and materials used to provide assistance to victims and witnesses. Although many of the following services are the responsibility of the U.S. Attorney, law enforcement officers should anticipate being asked to assist in providing this

information to victims and witnesses._______________ Obstruction of Justice 199 In 2004 Congress enacted Victims’ Rights and Justice for

All Act (18 U.S.C. § 3771 5 ) which expanded and re

- codified the victims’ bill of rights, and gave victims standing to enforce those rights. The Justice For All Act established a list of victims’

r ights and directed the Department of Justice and other departments and agencies of the federal government engaged in the detection, investigation, or prosecution of crime to make

their best efforts to see that crime victims were afforded these rights.

Pur suant to § 3771(a) crime victims have the following rights:

**•** The right to be reasonably protected from the accused. This is a pre

- existing right in which the threat level, risk and resources available are analyzed in order to establish a reasonable plan t o protect the victim.

**•** The right to reasonable, accurate and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. The Department of Justice

shall make their best efforts to see that crime victims are notified of, and accorded these rights.

**•** The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be mater ially altered if the victim heard other testimony at the proceeding.

**•** The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.

5 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Obstruction of Justice 200 **•** The reasonable right to confer with the at torney for

the Government in the case.

**•** The right to full and timely restitution as provided

in law.

**•** The right to proceedings free from unreasonable delay.

**•** The right to be treated with fairness and with respect for the victim’s dignity and privacy.

Cong ress also enacted 42 U.S.C. § 10607 6 , which defined a list of services that federal agencies have the responsibility to provide to crime victims.

6 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Federal Fraud Statutes 201 

## Subpart I

Federal Fraud Statutes

I

. I NTRODUCTION

................................ ................................ . 201

II. M AIL F RAUD

- 18 U.S.C. § 1341

................................ ........ 203

A. The Elements

................................ ................................ .... 203

B. Definition of Fraud

................................ ............................ 203

C. Application of the Mail Fraud Statute

................................ 203

1. In General

................................ ................................ .... 203

2. “In Furtherance of the Scheme”

................................ ... 204

D. A Sampler of Common Schemes

................................ ........ 205

1. Bribes and Ki ckbacks

– Public Corruption

................... 205

2. Bribes and Kickbacks

– Private Corruption

.................. 205

3. Fraud Against Consumers

................................ ........... 206

4. Fraud Against Business

................................ ............... 206

5. Fraud Against Government

................................ .......... 206

6. Private Fraud

................................ ............................... 207

III. W IRE F RAUD

- 18 U.S.C. § 1343

................................ ........ 207

A. The Elements

................................ ................................ .... 207

B. Application of the Wire Fraud Statute

............................... 207

IV. T HE N ATIONAL S TOLEN P ROPERTY A CT

- 18 U.S.C. § 2314

.... 209

A. Paragraph One

................................ ................................ .. 209

1. The Elements

................................ ............................... 209

2. Proving the Elements

................................ ................... 210

B. Paragraph Two

................................ ................................ .. 212

1. The Elements

................................ ............................... 212

2. Proving the Elements

................................ ................... 212

C. Paragraph Th ree

................................ ............................... 213

1. The Elements

................................ ............................... 213

2. Proving the Elements

................................ ................... 213

V. V ENUE

................................ ................................ ............ 215



## *****

I. Introduction

The concept of “federalism” embodied in our U.S.

Constitution

- independent states relinquishing certain of their_______________ Federal Fraud Statutes 202 rights, while maintaining others to form a m ore workable union

- helped create the world’s greatest democracy, but also posed significant challenges. In the realm of law enforcement, issues arose regarding how to prevent and prosecute crimes spanning

more than one state. When con artists used the mail, transported by pony express, to defraud victims in distant states, which state’s law did they violate and where were they properly prosecuted once apprehended? If personal items stolen in one state were transported across boundaries for sale

in anot her state, which sovereign’s laws applied and which state officials were responsible for the investigation, arrest and prosecution of the thieves? As a result, early in our history, a suspect’s flight across state lines for all but the most heinous

crimes was the most effective means of eluding capture and

conviction.

As the nation’s borders expanded and its population grew, Congress recognized the increasing need to combat these interstate crimes and responded by enacting legislation based primarily on i ts authority under Article I, Section 8 of the Constitution to regulate commerce among the several States. Consequently, federal investigators and prosecutors now have a vast array of federal statutes to combat crimes that cross states lines by employing means of interstate transportation and communication. In the fraud area, those statutes include 18 U.S.C. § 1343, Fraud by Wire, Radio, or Television (more commonly referred to as the Wire Fraud Statute), and 18 U.S.C. § 2314, Transportation of Stolen Goo ds, Securities, Moneys, Fraudulent State Tax Stamps, or Articles Used in Counterfeiting (more commonly known as the Interstate Transport of Stolen Property or “ITSP”). Congress also looked to its Constitutional authority to establish post offices and post roads to enact 18 U.S.C. § 1341, Frauds and Swindles (the Mail Fraud Statute). Together, these three statutes constitute the federal government’s primary weapons in prosecuting fraud schemes touching interstate commerce or using the mails._______________ Federal Fraud Statutes 203 II. Mail Fra ud

- 18 U.S.C. § 1341 1

A. The Elements

The statute requires proof of the following elements:

**•** Any person who

**•** Intentionally

**•** Devises a fraudulent scheme and

**•** Uses or causes the mails to be used (postal service or private/commercial interstate carrier)

**•** In furtherance or in support of the scheme

B. Definition of Fraud

Fraud is the intentional presentation of falsehoods as truth with the goal of causing someone to part with something of value under false pretenses. The words “to defraud” commonly refer to wronging one in his property rights by dishonest methods or schemes, and usually signify deprivation of something of value by trick, deceit, chicane or overreaching.

C. Application of the Mail Fraud Statute

1. In Genera l

Several essential features of the mail fraud statute are worthy of mention. First, each use of the mail or an interstate carrier (such as United Parcel Service or Federal Express) in

furtherance of a fraud scheme const itutes a chargeable count of mail fraud. A simple example would be a defendant who used the mail to order goods for which he had no intention of paying.

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Federal Fraud Statutes 204 His mailing of the order form would be chargeable as one count of mail fraud and the mailing of the goods he ordered by the

victimized vendor would constitute a second count of mail fraud under § 1341. It is well

- established that the defendant need not intend, nor even know, that the mail was or will be used. In fact, he or she may take deliberate acti ons to avoid using the

mail and still violate the statute. It is sufficient that the use of the mail was reasonably foreseeable. Thus, a defendant who

hand

- delivers his fraudulent claim for insurance proceeds can be still be prosecuted under the mail frau d statute if his insurance agent then sends the claim by mail to the home office for processing. Though the defendant sought to avoid the mail, the mailing of his claim by the agent was reasonably foreseeable. In addition, a defendant can be charged with a mailing which he or she did not personally place in the mail and which does not itself contain any false representations. It is

sufficient that the defendant caused the mail to be used and that the mailing was in furtherance of the scheme. Finally,

un like the Wire Fraud statute (§ 1343) discussed below, the mailings charged in a mail fraud prosecution can be intrastate (solely with in one state) as long as the U.S. Mail or an interstate carrier is used. Thus, a victim’s check mailed from

Manhattan to t he defendant in Brooklyn, N.Y., can be charged

as a mail fraud count.

2. “In Furtherance of the Scheme”

A mailing is chargeable under the mail fraud statute if it

is made in furtherance of the scheme to defraud. To meet this requirement, a use of the mail or an interstate carrier does not need to be an “essential” part of the scheme; it need only be incident to an essential part of the scheme or a step in the plot. Mailings made after the fraudulent scheme has reached fruition are not chargeable. Thus, where the defendant used a stolen credit card to purchase products and services, the invoices

mailed to the authorized holder of the credit ca rd seeking payment for these items and checks mailed in payment of the invoices by the victim occurred after the fraud was completed, and could not be charged as mail fraud counts. However, the courts have distinguished between mailings after the_______________ Federal Fraud Statutes 205 completi on of the fraud, which are not chargeable under § 1341, and “lulling letters.” Lulling letters are mailings designed to lull the vi ctims 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 prec luded by the expiration of the five

- year statute of limitations.

D. A Sampler of Common Schemes

Fraud schemes come in all shapes and sizes, limited only by the perpetrator’s creativity. The great benefi t 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

prosecu ted utilizing the mail fraud statute. The investigator should keep in mind, however, that these are only a sampling of the many schemes to which the mail fraud statute can be applied.

1. Bribes and Kickbacks

– Public Corruption

Where a public official solicits or receives a kickback in exchange for official action benefiting certain persons or groups, the government may prosecute that public official for mail fraud

if the mails were used in furtherance of the scheme.

2. Bribes and Kickbacks

– Private Corruption

An employee of a business entity who solicits or receives a_______________ Federal Fraud Statutes 206 kickback from entities doing business with the employer

c ommits a breach of trust by depriving the employer of an honest employee. Any mailing to execute the kickback scheme

constitutes mail fraud.

3. Fraud Against Consumers

A business is allowed to “puff” or exa ggerate the virtues of its product, but is not permitted to fabricate non

- existent qualities; nor may a business offer an item and fail to deliver it or substitute another of materially different quality or characteristics. Any mailing which assists in th e 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 victim s send the money to obtain the non

- existent product); and sweepstakes that require people to send money to win or receive their prize.

4. Fraud Against Business

Anyone who files a false claim with a business by using

the mail violates the mail fraud statute. Such schemes include false claims for insurance benefits, bad faith refusals to pay for goods and services rendered, sales of supplies and equipment of inferior quality or not conforming to agreed

- upon sp ecifications, and false applications for financing.

5. Fraud Against Government

Anyone who files a false claim with the federal, state or local government by using the mail violates the mail fraud

statute. Examples include state or local tax fraud, false claims for Veterans Administration, social security, workers compensation and other government benefits; false education certifications; or false college loan applications._______________ Federal Fraud Statutes 207 6. Private Fraud

Any person who commits a fraud against another person

and either uses the mail or causes the mail to be used in

furtherance of the scheme has committed mail fraud. For example, a defendant who married a recently

- widowed person

and used the mail in furtherance of a scheme to deplete the assets left to that person by the deceased spouse has violated

the mail fraud statute.

III. Wire Fraud

- 18 U.S.C. § 1343 2

A. The Elements

The statute requires proof of the following elements:

**•** Any person who

**•** Intentionally

**•** Devises a fraudulent scheme and

**•** Uses or cause s an interstate wire transmission to

be used

**•** In furtherance or in support of the scheme

B. Application of the Wire Fraud Statute

The wire fraud statute prohibits the telephone, television,

te legraph, and more recently, the internet, from being used in interstate commerce to promote a fraud scheme. In applying § 1343, the courts have stated consistently that its elements are the same as those of the mail fraud statute. The major

differences be tween the wire fraud and mail fraud statutes are

2 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Federal Fraud Statutes 208 the nature of the communication method and that the wire fraud statute requires that the signal or wire transmission forming the basis of the charge must have crossed state lines. Thus, a telephone call pla ced 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 indict able 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 w ith 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 wa s 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 whi ch 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 t he 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 effec ted by telephones_______________ Federal Fraud Statutes 209 other than “land lines,” based on its application to radio

transmissions.

IV. The National Stolen Property Act

- 18 U.S.C. § 2314 3

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 provis ion requires its own elements of proof and will be considered in order of appearance. This course will address only the first three provisions of the

statute.

A. Paragraph One

1. The Elements

The first paragraph of ITSP prohibits the interstate transportation of stolen, converted or fraudulently obtained goods. It requires proof of the following elements:

**•** Transportation in interstate or foreign commerce

**•** Of any goods, wares, m erchandise, securities or money valued at $5,000 or more

**•** Knowing the same to have been stolen, converted or taken by fraud

3 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment enti tled “Selected Federal Statutes.”_______________ Federal Fraud Statutes 210 2. Proving the Elements

(a) Interstate or Foreign Commerce

The property or monies obtained by the ft or fraud must have been transported or transferred across state lines or in foreign commerce. Transportation or transfer of such items within a single state does not satisfy the requirements of the statute. It is the transport or transfer of the stole n 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

tra nsports 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 th e 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 merchan dise, 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 stat utes 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 onc e 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._______________ Federal Fraud Statutes 211 (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 applicatio n to
more substantial frauds and thefts. To determine the appropriate measure of value, the courts refer initially to 18 U.S.C. § 2311 , which defines value as face, par, or market value, whichever is the greatest. For items with no face or par value, the courts have generally defined market value as the price a willing buyer would pay a willing seller either at the t ime 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

p erson 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 upo n 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_______________ Federal Fraud Statutes 212 jury may infer that a person in possession of recently stolen property knew the property was stolen, unless such possession is satisfactorily explained.

B. Paragraph Two

1. The Elements

The second paragraph of ITSP prohibits “travel fraud”

- causing potential victims of a fraudulent scheme to travel in interstate or foreign comme rce in furtherance of or to conceal the scheme. Thus, a con artist who misleads his victim in a

face

- to

- face encounter can still be charged with ITSP if the

victim crossed state lines or traveled into or out of the United States to investigate or learn of the fraudulent offer. The elements of this second paragraph are:

**•** Transportation of or inducement of a person to travel in interstate or foreign commerce

**•** For the purpose of defrauding that person of money or property valued at $5000 or more.

2. Proving the Elements

(a) Transport or induce to travel in interstate or foreign commerce

This element of the second paragraph of ITSP is met if a potential or actual victim of a fraud scheme travels in interstate

or f oreign commerce in connection with the scheme. It is not
necessary t o prove the victim actually parted with their money or property; instead it is sufficient if the defendant induced them to travel in an effort to defraud them. Likewise, the government need not prove that the money or property lost by

the victim to the de fendant 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_______________ Federal Fraud Statutes 213 charged with ITSP based on the interstate travel of the neighbor even if the neighbor does not invest until he returns home and

hands his funds to the con artist.

(b) To Defraud a person of $5000 or More

As with the Mail Frau d 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 IT SP, travel fraud under the second paragraph of ITSP requires that the suspect defrauded or endeavored to defraud the victim of $5000 or more.

C. Paragraph Three

1. The Elements

The third paragraph of ITSP prohibits the transportation of falsely made, forged, alte red or counterfeited securities or tax stamps in interstate and foreign commerce. It requires proof of the following elements:

**•** Transport in interstate or foreign commerce

**•** Falsely made, forged, altered or c ounterfeited securities or tax stamps

**•** With unlawful or fraudulent intent

**•** Knowing the securities or tax stamps to be forged,

altered or counterfeited.

2. Proving the Elements

(a) Securities

Securities i nclude stock certificates, bonds, money orders, motor vehicle titles, and checks. While the courts have included checks within the definition, they have found the_______________ Federal Fraud Statutes 214 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 acco unts, 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

paragr aph one of ITSP if they meet the $5000 valuation requirement).

Airline tickets, credit cards, credit card slips, and leases

do not fall within the definition of “securities” under this third paragraph. In addition, the final paragraph of Section 2314

sta tes 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 a nd 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 fal sely 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. Alternat ively, 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 b ank can be charged with ITSP based on each negotiation and subsequent interstate transfer of the check in the bank collection process._______________ Federal Fraud Statutes 215 (c) Fraudulent Intent

The government must establish that the defendant transported the forged or counter feit check or security with unlawful or fraudulent intent. The requisite intent may be established through the defendant’s own statements and/or his participation in the scheme to transport or negotiate the

securities.

(d) Knowledge of Forgery or Counter feit

To sustain a conviction under this paragraph of ITSP, the government must prove the defendant knew the security transported in interstate or foreign commerce was forged or counterfeited at the time of its transportation. It is not necessary to prove in the case of a forged securit y that the defendant forged the signature himself; the government need only show that he knew the instruments he cashed had been forged.

V. Venue

Venue for violations of the Mail Fraud statute, Wire Fraud statute and ITSP is governed by 18 U.S.C. § 3237 , which provides in pertinent part: “Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, . . . may be inquired of and prosecuted in any district from, through, o r 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 travele d, 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_______________ Federal Fraud Statutes 216 beginning or ending points, rather than in the districts through which the mail, transmiss ion, victims or property merely passed._______________ Electronic Law and Evidence 217 

## Chapter Seven

Electronic Law and Evidence

I. I NTRODUCTION

................................ ................................ . 218

II

. H ISTORY OF T ITLE III

................................ ....................... 219

III. W HEN A T ITLE III C OURT O RDER IS R EQUIRED

...................... 220

IV. H OW TO O BTAIN A T ITLE III C OURT O RDER

.......................... 222

A. Who Can Apply?

................................ ............................... 222

B. Enumerated Crimes Only

................................ .................. 222

1. Wire or Oral C ommunications

................................ ...... 223

2. Electronic Communications

................................ ......... 223

C. Authorization to Apply

................................ ...................... 223

1. Wire or Oral Communications

................................ ...... 223

2. Electronic Communications

................................ ......... 223

D. Contents of the Application

................................ ............... 224

1. Identity

................................ ................................ ........ 224

2. Statement of Facts and Circumstances

........................ 2 24

3. Necessity Statement

................................ ..................... 225

4. Time Period

................................ ................................ .. 225

5. Statement Regarding Previous Applications

................. 226

6. Minimization Statement

................................ ............... 226

7. Request for Covert Entry

................................ .............. 227

E. Who may Issue?

................................ ................................ 227

V. I NTERCEPTIONS E XEMPTED FROM T ITLE III

.......................... 228

A. No Reasonable Expectation of Privacy

............................... 228

B. Consensual Monitoring

................................ ..................... 229

1. Written Approval Required

................................ ........... 230

2. Prior AUSA Advice

................................ ........................ 230

C. Special Limitations on Consensual Monitoring

.................. 230

1. Device Located on the Person

................................ ....... 231

2. Device in a Fi xed Location

................................ ........... 231

D. Electronic Communications Exempted from Title III

.......... 231

V I

. E LECTRONIC T RACKING D EVICES

................................ ........ 232

A. Installation

................................ ................................ ....... 232

1. Vehicles

................................ ................................ ....... 233

2. Government Property

................................ ................... 233

B. Monitoring of an Electronic Tracking Device

..................... 234

1. In Areas with No REP

................................ ................... 234

2. I n Areas with REP

................................ ........................ 234

C. Warrants to Install and Monitor

– Rule 41

....................... 235_______________ Electronic Law and Evidence 218 VII. P EN R EGISTERS AND T RAP AND T RACE D EVICES

.................... 236

A. Definitions

................................ ................................ ........ 236

1. Pen Registers

................................ ............................... 236

2. Trap and Trace Devices

................................ ................ 237

B. Regulations

................................ ................................ ....... 237

C. Obtaining a Court Order

................................ ................... 237

VIII. V IDEO

- O N LY S URVEILLANCE WHERE REP E XISTS

................... 238

IX. S TORED E LECTRONIC C OMMUNICATIONS

.............................. 240

A. Classifying the Information Sought

................................ ... 240

1. Basic Subscriber Information

................................ ...... 240

2. Transactional Records

................................ ................. 241

3. Cont ents

................................ ................................ ...... 241

B. Methods for Obtaining

................................ ...................... 242

1. Basic Subscriber Information

................................ ...... 242

2. Transactional Records

................................ ................. 242

3. Contents

................................ ................................ ...... 243

C. Preservation Orders

................................ .......................... 245

D. Multi

- Jurisdiction Warrants

................................ .............. 246



## *****

I. Introduction

Electronic surveillance methods have taken on an increased importance because criminals are making more use

o f technology. This chapter gives you a basic overview of federal laws to (1) intercept wire, oral and electronic communications; (2) track the movements of vehicles and other objects; and (3) trace telephone calls and electronic communications. This chapt er will also address using video

- only surveillance, and the federal requirements governing access to stored electronic communications held by network service providers.

This chapter will not cover state law regarding electronic

surveillance. While state and local law enforcement must follow, at a minimum, the federal laws regarding electronic surveillance, each state is free to make its laws more restrictive than federal law. This chapter will also not cover the Foreign Intelligence Surveillance Act (FIS A) which addresses national security investigations._______________ Electronic Law and Evidence 219 The statutes pertaining to the laws of electronic

surveillance are codified at 18 U.S.C. § 2510, et seq. In 1968 when Congress passed the “Omnibus Crime Control and Safe Streets Act,” these provisions were in Title III, an d this body of law is still referred to as “Title III” (even though they are currently located in another Title.)

II. A Little History on Title III

Before 1934, no federal statute regulated w iretapping. In 1928, the Supreme Court decided 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 becau se the Fourth Amendment protected property rights, not privacy rights. Because the agents did not intrude onto the suspect’s property when tapping the telephone line, there was no Fourth Amendment “search.” The Court noted that Congress could regulate wi retapping if it so desired.

Six years after Olmstead , Congress passed the Federal Communications Act of 1934 which prohibited wiretapping by any person, includ ing federal law enforcement officers.

Almost 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 Fourth Amendment analysis by adding a focus on ind ividual

“ 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 microp hone on top of the telephone booth. Because they had not intruded onto the defendant’s property in installing and utilizing this device, the officers had complied with Olmstead

. But, t he Supreme Court held that whenever the government intrudes

1 Cases named in this chapter without a case cite are briefed in the companion book, Legal Division Reference Book._______________ Electronic Law and Evidence 220 upon an in dividual’s reasonable expectation of privacy, the Fourth Amendment applies.

In response to the Supreme Court’s decision in Katz

, Congress passed Title III to regulate the manner in which law enforcement officers may lawfully conduct real

- time interceptions of wire and oral communications. The purpose of Title III was twofold: first, to protect the privacy of wire and oral communications; and second, to set forth, on a uniform basis, the circumstances and conditions under which the interception of wire and oral communications may be authorized. Under Title III, you may use evidence obtained through electronic surveillance if you first obtain a court order authorized under

the statute.

When Congress enacted Title III in 1968, it did not consider many of the technologies that are now commonplace. To update Title III and extend privacy protections to modern,

mo re advanced technologies, Congress passed the Electronic Communications Privacy Act of 1986 (ECPA). With passage of the ECPA, Congress ad ded a third category of communications, “electronic communications,” whose interception would now also be regul ated by Title III. Where Title III had been limited to voice communications, whether face

- to

- face or over a wire, the

ECPA extended Title III to include non

- oral or wire communications that occur over computers, digital

- display pagers, facsimile machines, and other electronic devices. (United States Attorney’s Manual, Chapter 9

- 7.100.)

III. When is a Title III Court Order Required?

You must meet stringent requirements to obtain a Title II I

court order to conduct non

- consensual intercepts of wire, oral, and electronic communications. In a nutshell, it is unlawful to intercept wire or electronic communications without a Title III order. It is unlawful to use a device to intercept oral communications in which a person has a reasonable expectation of privacy. To apply these principles, you must correctly understand the definitions._______________ Electronic Law and Evidence 221 Title III defines oral communications as those spoken by a person who exhibits an expectation of privacy when speaking.

A wire communication is the transfer of the human voice by aid of wire, cable, or “other like connection” even if there is no reasonable expectation of privacy.

An electronic communication is the transfer of data other

than that which would be a wire or oral communication even if there is no expectation of privacy. An email or the data that composes a facsimile transmission is an electronic

communication. If the transmission is the digitized human voice sent over a network or phone line, it is a wire

– and not

electronic

– communication.

Unlike oral communications, the definitions of electronic

and wire communications do not require that someone have an expectation of privacy in the communication. The omission of this component from the definitions was intentional as Congress realized that by their nature, wire and electronic communications had to be revealed to third parties to transmit them, yet Congress still intended to afford these communications some protection from unwarranted intrusions.

The term “interception” has been interpreted to mean a real time interception. Loosely speaking, there is no interception unless the data, electrons, or sound waves are moving at the time of interception. As to oral communicat ions, there is no interception unless it is done with a “device.” A device is anything other than the human ear. A good general rule is that if you have the right to be where you are and can hear something with y our unaided ear, 2 there is no Title III violation.

If there is consent of one or more parties to the communication, then a Title III Court order is not required.

2 The statute excludes, from the definition of “device,” hearing aids set to correct subnormal hearing to normal._______________ Electronic Law and Evidence 222 

### 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 require d.

IV. How to Obtain a Title III Court Order

This section addresses the requirements to obtain a Title

III court order if one is required.

A. Who Can Apply for a Title III Court Order?

Any “investigative or law enforcement officer” may apply

for a Title III court order. This phrase is defined as “ any officer of the United States ... who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.” 18 U.S.C. § 2510(7).

B. Enumerated Crimes Only

You may submit an application for a Title III court order only when investigating certain crimes that are specifically

listed in 18 U.S.C. § 2516. The type of interception being requested ( e.g., wire, oral, or electronic) will play a ro le in this analysis._______________ Electronic Law and Evidence 223 1. Wire or Oral Communications

To intercept wi re or oral communications, you must have probable cause to believe that one of the predicate offenses specifically listed in 18 U.S.C. § 2516(1) is being committed. As a practical matter most significant felony crimes are listed.

2. Electronic Communicat ions

When you seek to intercept electronic communications, you must have probable cause to believe that any federal felony is being committed. 18 U.S.C. § 2516(3).

C. Authorization to Apply for a Title III Court Order

Before you may submit an application for a Title III court order to the appropriate judge, the application must first be reviewed and approved by an appropriate Department of Justice official. Who must first review the application depends, again, on the type of communication being intercepted.

1. Wire or Oral Communica tions

Under 18 U.S.C. § 2516(1), a high

- ranking member of the Department of Justice must first review and authorize any application requesting permission to intercept wire or oral communications without the consent of one or more parties to the conversation. This requirement is to ensure that this powerful investigative tool is used w ith restraint and only where

the circumstances warrant it.

2. Electronic Communications

Under 18 U.S.C. § 2516(3), any government attorney may authorize a Title III application to intercept electronic

comm unications in the investigation of a federal felony. However, the Department of Justice has imposed limitations on this authority. Under DOJ policy, AUSAs may approve applications to seek a Title III for digital display pagers, but the policy requires Department of Justice approval before officers_______________ Electronic Law and Evidence 224 can apply to a ju dge to intercept other electronic communications over any other device, such as computers and

facsimile machines.

D. Contents of the Application

Under 18 U.S.C. § 2518, each application for a Title III court order must contain specific information before a court can authorize the interception. In addition to being in w riting, under oath, and signed by either the United States Attorney or an Assistant United States Attorney, the application must contain the following:

1. Identity

The application must contain the identity of the investigative or law enforcement officer making the application, as well as the DOJ official who authorized it. 18 U.S.C. § 2518(1)(a).

2. Statement of Facts and Circumstances

Title 18 U.S.C. § 2518(1)(b) requires a full and complete

statement of the facts and circumstances relied upon to justify

the belief that a Title III court order should be issued. This statement must include the following information:

**•** Details about the particular offense that has been, is being, or is about to be committed;

**•** A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

**•** A particular description of the type of communications sought to be intercepted; and

**•** The identity of the individuals, if known, committing the offense and whose communications are to be intercepted. The Supreme Court requires_______________ Electronic Law and Evidence 225 that a Title III application name all individuals who the government h as probable cause to believe are engaged in the criminal activity under investigation and whose conversations the government expects to intercept. Additionally, it is the policy of the Department of Justice to “name as potential subjects all persons whose involvement in the alleged offenses is indicated.” (United States Attorney’s Manual, Chapter 9, Criminal Resources Manual at 28.)

3. Necessity Statement

Under 18 U.S.C. § 2518(1)(c) , a Title III application must contain a full and complete statement as to whether other investigative procedures have been tried and failed or wh y they reasonably appear to be unlikely to succeed if tried or would be too dangerous. This section is sometimes referred to as the “necessity” requirement, and simply means that the interception must be shown to be necessary to the investigation

of the c ase. This section was “designed to assure wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” U.S. v. Kahn

.

4. Time Period

The application must c ontain a statement of the period of time for which the interception is to be maintained. 18 U.S.C. § 2518(1)(d). Under 18 U.S.C. § 2518(5), Title III court orders are valid only for the period necessary to achieve the objective of the authorization, but in no event longer than 30 days. This 30

- day period begins on the earlier of either (1) the day on which the investigative or law enforcement officer begins to conduct an interception under the order, or (2) ten days after the order is

issued. This 10

- day period is intended primarily for the

installation of whatever device will be used to conduct the interceptions. Extensions o f 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_______________ Electronic Law and Evidence 226 include a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.” 18 U.S.C. § 2518(1)(f).

5. Statement Regarding Previous Applications

Under 18 U.S.C. § 2518(1)(e), a Title III application must also contain a full and complete statem ent of the facts surrounding all previous Title III applications known to the individual authorizing and making the application that involved any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each of these previous applications.

6. Minimization Statement

A Title III application should also contain a statement that the surveillance, if approved, will be “conducted in such a way as to minimize the i nterception of communications not otherwise subject to interception.” 18 U.S.C. § 2518(5). In determining complian ce with this requirement, courts look to the “totality of the circumstances” to see if the minimization effort was reasonable. Among the factors the courts have considered in making this judgment are: (1) the nature and complexity of the suspected crimes; (2) the number of target individuals; (3) the ambiguity of the intercepted conversations; (4) the thoroughness of the government precautions to bring about minimization; and (5) the degree of judicial supervision over the surveillance practices. Where th e government fails to adequately minimize the electronic surveillance, any evidence obtained from those impermissible intercepts will be suppressed. However, errors in minimizing one portion of an interception do not automatically result in the suppressio n 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._______________ Electronic Law and Evidence 227 7. Request for Covert Entry

The Department of Justice requires that Title III applications specifically contain a request for permission to surreptitiously enter to install, maintain, and remove electronic

surv eillance devices. (United States Attorney’s Manual, Chapter 9, Criminal Resources Manual at 28.) 3

E. Who may Issue a Title III Court Order?

A Title III order can be issued only by a United States

District Court Judge or a United States Circuit Court of Appeals Judge. 18 U.S.C. § 2510(9). A United States Magistrate Judge may not issue a Title III order.

Title III Court Order Application Authorization and Approval Process

Oral and wire

communications Electronic

communications (other than digital

display pagers) Digital display

pagers

Agent with Probable

Cause Same Same

An offense listed in 18

U .S.C. § 2516(1) Any federal felony Any federal felony

DOJ approval of application DOJ approval of application AUSA can

approve application

District or Appellate Court judge can issue (Not a magistrate) Same Same

3 The Supreme Court has held that a Title III application does not have to contain a specific request for permission to covertly enter a location to install, maintain, and remove surveillance devices because “[t]hose considering the surveillanc e legislation ( i.e., Congress) understood that, by authorizing electronic interception of oral communications in addition to wire communications, they were necessarily authorizing surreptitious entries.” Dalia v. U.S. Notwithstanding this ruling, officer s must include a request for covert entry under DOJ policy._______________ Electronic Law and Evidence 228 V. Interceptions Exempted from Title II I

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 whe re (1) no reasonable expectation of privacy exists in an oral communication, and (2) one of the parties to the conversation has given consent to intercept the communication (sometimes referred to as “consensual monitoring”).

A. No Reasonable Expectation of Privacy

In Katz , the Supreme Court established the standard for determining whether a reasonable expectation of privacy exists.

The test is two

- pronged: f irst, 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 expe ctation of privacy exists. 18 U.S.C. § 2510(2) defines an “oral communication” as one “uttered by a person exhibiting an expectation of privacy that such communication is not subject to interception under circumstances justifying such expectation....” The legislative history of Title III indicates that Congress intended this definition to parallel the Katz “reasonable expectation of privacy” test.

As a general rule, there is no expectation of privacy in a

conversation that can be overheard from a location where the interceptor has a legal right to be and where the interceptor uses only the unaided ear. As Katz stated: “[C]onversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would b e unreasonable.” Accordingly, if two individuals had a conversation in a public restaurant, and spoke loudly enough for others in the restaurant to overhear their conversation, no reasonable expectation of privacy would exist.

Finally, even though a spea ker may subjectively intend for the conversation to remain private, a speaker has no_______________ Electronic Law and Evidence 229 reasonable expectation that the person to whom he is speaking

will not later reveal the contents of the conversation. There is only a legitimate expectation of privacy as long as both parties expect it. If, however, one party to the conversation decides to reveal the contents of the conversation, the other party cannot successfully claim any “right to privacy” that would prevent this revelation. So, if an individual engag es 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 over heard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society.” Hoffa v. U.S.

As stated earlier, the definitions of wire and electronic communications do not contain a requirement that a reasonable expectation of privacy exist. “Therefore, the non

consensual interception of wire communications violates 18 U.S.C. § 2511, regardless of the communicating parties’ expectation of privacy, unless the interceptor complies with the

c ourt authorization procedures of Title III.” United States Attorney’s Manual, Chapter 9

- 7.301.

B. Consensual Monitoring

Title 18 U.S.C. § 2511(2)(c) “permits government agents, acting with the consent of a party to a communication, to engage in warrantless interceptions of telephone communications, as well as oral and electronic communications.” (United States Attorney ’s Manual, Chapter

9

- 7.301.) The consent of a single party to the conversation is required, and this consent must be given voluntarily, without physical coercion or duress. The Attorney General established guidelines for the investigative use of consensu al monitoring by law enforcement agencies within the Executive Branch. These guidelines are enumerated in the United States Attorney’s Manual, Chapter 9

- 7.302. The following is a general summary of those guidelines. You must become familiar, however, wi th the particular requirements of your agency regarding this issue._______________ Electronic Law and Evidence 230 1. Written Approval Required in Certain Cases

In certain sensitive or high

- visibility cases, the Department of Justice requires written ap proval before an oral

communication can be monitored without the consent of all parties to the communication. This requirement would apply, for example, when the monitoring relates to the investigation of a Congressman, Federal judge, Governor or Lieutenant Governor of a State or Territory, etc.

2. Prior AUSA Advice to Monitor Oral

Conversations

Current Department of Justice policies require that, prior

to approval for consensual monitoring by the head of a department or agency or his or her designee, a designated Department of Justice attorney must provide “advice” that the monitoring is lawful. This polic y applies only to face

- to

- face monitoring; no Assistant United States Attorney contact, consent, advice, or approval is required to consensually monitor telephone or radio communications.

C. Special Limitations on the Use of Consensual Monitoring

When conducting a consensual monitoring, questions often arise regarding where the monitoring device may be located, as well as when the device may be monitored. Some general comments are outlin ed in the United States Attorney’s

Manual:

When a communicating party consents to the monitoring of his or her oral communications, the monitoring device may be concealed on his or her person, in personal effects, or in a fixed location. When engaging in consensual monitoring, the law enforcement agency involved must ensure that the consenting party will be present at all times when the device is operating. United States Attorney’s Manual, Chapter 9

- 7.302._______________ Electronic Law and Evidence 231 1. Device Located on the Person

You may place the monitoring device on the consenting person. If the monitoring device is so placed, the party (be it an undercover agent or confidential informant) may record any conversations he has with the suspect.

2. Device in a Fixed Location

The monitoring device does not have to be on the consenting person. In many instances, it may be necessary to place the device in a specified location ( e.g., a hotel room where a confidential informant and the suspect are to meet). When the device is placed in a fixed location, two aspects of the

installat ion and monitoring must be considered. First, depending on the circumstances, you may need to obtain a

warrant for the installation of the device. When a confidential informant rents a hotel room and consents to having the device placed in the room, no w arrant would be required for the installation. Second, you may not even temporarily monitor the device when the consenting party is absent.

D. Electronic Communications Exempted from Title III

Though ECPA extended Title III protections to “electronic communications,” certain types of communications were specifically excluded from this protection. Accordingly, a Title III court order is not required to intercept the following types of

electronic communications:

**•** Tone

- Only Pagers . 18 U.S.C. § 2510(12)(B).

**•** Tracking Devices, Beepers and Transponders . 18 U.S.C. § 2510 (12)(C). Tracking devices are defined in 18 U.S.C. § 3117 and include GPS devices.

**•** Video

- Only Surveillance . The use of video

- only surveillance is not regulated by Title III, but is regulated by the Fourth Amendment._______________ Electronic Law and Evidence 232 **•** General Public Communications . General public communications that are easily received by the public, such as AM/FM radio station broadcasts,

and citizen band radio transmissions.

VI. Electronic Tracking Devices

Title 18 U.S.C. § 3117 discusses the use of “electronic or mechanical device[s] w hich permit the tracking of the movement of a person or object.” Electronic tracking devices serve an important law enforcement function by allowing you to track and monitor the movements of suspects or objects from a distance, thereby reducing the possib ility 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 be eper in many respects, a “transponder” is most often used to track the

location of aircraft.

The Fourth Amendment, not Title III, regulates the installation and monitoring of electronic tracking devices. Two separate questions must be asked to determine w hether the use of electronic tracking device is lawful: first, did the installation of the electronic tracking device comply with the Fourth Amendment? Second, did the monitoring of the electronic tracking device comply with the Fourth Amendment?

A. Inst allation of an Electronic Tracking Device

In deciding whether an electronic tracking device was legally installed, the courts utilize a traditional Fourth Amendment analy sis focusing on whether installation of the device required intrusion into an area where an individual has a reasonable expectation of privacy. If so, then the Fourth Amendment has been implicated because a “search” was conducted. If not, then no “search ” occurred, and the Fourth Amendment is inapplicable. Most commonly, questions regarding the legality of installing electronic tracking devices_______________ Electronic Law and Evidence 233 concern installation of the device into or on vehicles, and into or
on government property.

1. Vehicles

When installation of the tracking device requires some form of physical intrusion into the vehicle ( i.e., under the hood or in the interior) or connecting to the wiring of the vehicle,

courts have found that this action constitutes a “search” requiring either a warrant or an exception to the warrant requirement to satisfy the Fourth Amendment. Similarly, if installation requires physically going onto the curtilage of a

res idence or into a garage, the Fourth Amendment requires a search warrant or an exception to the warrant requirement.

However, when an electronic tracking device is installed onto the outside of a vehicle without intruding into vehicle’s

interior or the wir ing, a warrant is not required to install the device because no intrusion into REP has taken place. 4

2. Government Property

An issue that often arises in tracking cases involves the

installation of the device in to or on government property that is later transferred to an unsuspecting target. This issue was addressed by the Supreme Court in U.S. v. Karo . The Court

held that the installation of a tracking device into or on government property that is later transferred to an unknowing suspect does not violate the Fourth Amendment. First, when the device is placed into or on the government property, the suspect does not have any legitimate expectat ion of privacy in the property. Second, the transfer to the defendant does not amount to a “seizure” of the defendant’s property.

4 Some district courts, however, have questioned this rule. One court held

that while the installation of a tracking device on the exterior of a vehicle is not a “search,” reasonable suspicion is still required for the installation. Another court found that the installation of a tracking device on the exterior of a vehicle constituted a “search,” but the war rantless installation is lawful so long as the officers installing the device had probabl e cause._______________ Electronic Law and Evidence 234 B. Monitoring of an Electronic Tracking Device

Whether there are REP implications in installing and monitoring the device are separate implications, and must be addressed and resolved separately. If a reasonable expectation of privacy is implicated in either the installation or the monitoring, a warrant (or exception such as consent) is required.

As with the installation of an electronic tracking device, the legality of monitoring the device depends on whether the object to which the device is attached is located in an area where there is a reasonable expectation of privacy.

1. Monitoring in Areas With No REP

When an electronic tracking device is located in an area

where no there is no reasonable expectation of privacy, the Fourth Amendment is not implicated in the monitoring. For example, if a device is lawfully installed onto the exterior of a vehicle, you may monitor the device while the vehicle is traveling on p ublic streets and highways. In these cases, a defendant’s movements are open to visual surveillance by anyone who wishes to look, including the police. For this reason, a defendant has no reasonable expectation that his movements on a public thoroughfare will not be observed. U.S.

v. Knotts

.

2. Monitoring in Areas With REP

In contrast, when an electronic tracking device is located in an area not open to visual surveillance and where a reasonable expectation of privacy exists, such as inside a home, the Fourth Amendment is implicated in the monitoring of the device and a warrant (or consent) is required.

In these types of cases, the monitoring of the device reveals aspects of the home that could not be observed through traditional visual surveillance. For example, while you may observe the object to which the beeper is attached enter a home,_______________ Electronic Law and Evidence 235 the later monitoring of the device in the home not only verifies

yo ur observations, but also establishes that the object remains on the premises, a fact not verifiable by visual surveillance. Because it is often difficult to determine where an object containing an electronic tracking device will ultimately come to

rest, and since it may become critical to monitor the device to determine that it is actually located in a place not open to visual surveillance, the Supreme Court has stated that warrants for the installation and monitoring of an electronic tracking device

are desirable. U.S. v. Karo

.

C. Warrants to Install and Monitor Tracking Devices

– Rule 41

Rule 41 5 of the Federal Rules of Criminal Procedure provides the process to obtain the warrant when a warrant is required to install o r monitor a tracking device. (This Rule is reprinted in its entirety in the supplemental materials.)

Generally, Rule 41 provides the following with respect to tracking warrants:

**•** A magistrate judge in the district where the device will be installed may is sue a warrant to install a tracking device. The issuing magistrate judge may authorize tracking in the district where the device will be installed, another district, or both.

**•** The warrant must contain the following:

o Identity of the person or property to be

tracked.

o Identity of the magistrate judge to whom the

return on the warrant will be made.

5 Federal Rules of Criminal Procedure 41(e)(2)(B) and 41(f)(2), effective 1 December 2006, specifically address warrants for tracking devices. This rule can be found in its entirety in the companion book, Legal Division Reference

Book , in the segment entitled “Selected Federal Rules of Evidence .”_______________ Electronic Law and Evidence 236 o A reasonable period of time that the device may be used. The time will not exceed 45 days. Extensions for not more than 45 days may be granted for good cause sho wn.

o A command that the device be installed within 10 days or less from the time the warrant is issued, and during the daytime, unless the magistrate for good cause shown

authorizes another time.

o A command that there shall be a return on

the warrant.

T he officer executing the warrant must make the return to the magistrate judge specified in the warrant. The return must contain the exact dates and times of both the installing of the device and the period in which it was used. The return must

be served on the person who was tracked, or whose property was tracked, within ten days after use of the device has ended. Upon request of the government, the magistrate judge may delay providing the notice required by the return.

VII. Pen Registers and Trap and Trac e Devices

Title 18 U.S.C. §§ 3121

- 3127 deal with “pen registers” and “trap and trace” devices. P en registers and trap and trace devices are not regulated by Title III but by other statutes.

A. Definitions and Purposes of Pen Registers and Tra p and Trace Devices

1. Pen Registers

A “pen register” captures all numbers that are being dialed out from a specific telephone line, and allows you to le arn what numbers a suspect is calling from his telephone. Pen registers can also be used to capture the email addresses from email sent by a target. Pen registers do not reveal the contents_______________ Electronic Law and Evidence 237 of the phone conversation or email. 6

2. Trap and Trace Devices

“Trap and trace” devices capture all numbers that are coming into a specified telephone line, and allows you to learn where telephone calls to the targeted phone are origina ting from. They can also be used to capture the email addresses of those who send emails to the target. A trap and trace does not

reveal the content of the conversation or email. 7

B. Regulation of Pen Registers and Trap and Trace

Devices

The regulations governing pen registers and trap and trace devices are contained at 18 U.S.C. §§ 3121

– 3127. These devices are not regulated by Title III, and th e Supreme Court has held that the use of pen registers and trap and trace devices does not implicate the Fourth Amendment because there is no actual expectation of privacy in phone numbers

dialed. Smith v. Maryland . Instead, the general rule regarding

th e use of pen registers and trap and trace devices is contained at 18 U.S.C. § 3121(a), which provides that “no person may install or use a pen register or trap and trace device without first obtaining a court order under section 3123.”

C. Obtaining a Cour t Order to Use a Pen Register or Trap and Trace Device

There are a number of procedural steps to obtain a court

6 The U

. S

. Code definition of a pen register is a “device which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such communication shall not include the contents of any communication....” 18 U.S.C. § 3127(3).

7 The U

. S

. Code definition of a trap and tra ce is “a de vice 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 inform ation shall not include the contents of any communication.” 18 U.S.C. § 3127(4)._______________ Electronic Law and Evidence 238 order to use a pen re gister 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 Ma gistrate Court, United States District Court, or United States Circuit Court of Appeals. Third, the application must include the following three pieces of

information:

**•** The identity of the attorney for the government who is making the application;

**•** The id entity 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 extension s of sixty days may be granted if the initial requirements for issuing the court order are again met.

It is a criminal offense to obtain evidence that required a pen or trap order without the required court order, however it will not result in suppression of the evidence on Fourth Amendment exclusionary rule grounds.

VIII. Video

- Only Surveillance in an Area where a Reasonable Expectation of Privacy Exists

Using video

- only surveillance in an area where a reasonable expectation of privacy exists is governed by the Fourth Amendment, not Title III. When video surveillance will_______________ Electronic Law and Evidence 239 be used where a reasonable expectation of privacy exists, you

must obtain a search warrant for the installation and use of the device unless consent has been obtained. If the device is being

installed and monitored in a location where no reasonable expectation of privacy exists, a search warrant is not required.

While recognizi ng that Title III does not govern the use of

video

- only surveillance in unprotected areas, there is a movement among the circuit courts to require that search

warrants for vide o

- only surveillance meet the higher, constitutional standards required by Title III. United States Attorney’s Manual, Chapter 9.7

- 200. Specifically, in addition to showing that probable cause exists to believe that evidence of a crime will be obtained, si x federal circuit courts 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 succe ed 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); a nd

**•** The names of the persons to be surveilled, if

known._______________ Electronic Law and Evidence 240 Department of Justice policy also requires that the investigative agency seeking to use court

- ordered video surveillance obtain approval from the appropriate Department of Justice official prior to obtaining a court order for video

- only

surveillance in areas where REP exists.

IX. Stored Electronic Communications

When the ECPA was enacted in 1986, it contained two separate titles. The second of these, referred to as the Stored Access Communications Act, outlines the requirements for obtaining wire or electronic communications that are stored by network service providers, such as America Online, EarthLink, and Comcast. Electronic mail (email) stored on a network serv er is the primary example of this type of communication. While this portion of the statute is unusually complicated, it can be simplified into two general rules. First, determine what type of information is being sought from the network service provider. Second, determine what type of legal document is necessary to require the network service provider to disclose the information.

A. Classifying the Information Sought

There are three types of info rmation that you may wish to obtain from a network service provider: (1) Basic subscriber information; (2) transactional re cords; and (3) the contents of

stored communications.

1. Basic Subscriber Information

– Information

about the Customer

Title 18 U.S.C. § 2703(c)(2) provides that “basic subscriber information” includes the following: “Name; address; local and long distance telephone connection records, or records of session times and durations; length of service (including start date) and types of services utilized; telephone or instrument number or other subscriber number or identity, including any temporarily assigned network addres s; 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.”_______________ Electronic Law and Evidence 241 2. Transactional Records

– How the Customer

Transacts with the Internet

Title 18 U.S.C. § 2703(c)(1)(A) defines “transactional records” as “record[s] or other information pertaining to a subscriber to or customer of such service (not including the contents of communications....).” Described by many as a

“catch

- all” category, transactional records include “only historical data involving past activity on the account.” Examples of “transact ional records” include:

**•** Web sites visited by the customer or subscriber;

**•** Cell

- site data for cellular telephone calls; and

**•** Email addresses of other individuals with whom the account holder has corresponded ( e.g., those who have sent email to, or received email from, the customer or subscriber).

3. Contents

The “contents” of a network account includes the actual

fi les stored in the account ( e.g., the actual text con tained with an email). “Contents” includes “any information concerning the substance, purport, or meaning of that communication.”

It is important to remember that this provision applies to only “stored electronic communications” which has a specific,

sta tutory definition and includes only “any temporary, intermediate storage of a wire or electronic communication

incidental to electronic transmission thereof 8 ,” and then only when held by the email provider. So, while a target may store

emails on a home com puter, they do not fall into the definition

of a stored electronic communication because it does not meet

the criteria above.

8 18 U.S.C. § 2510(17)._______________ Electronic Law and Evidence 242 B. Methods for Obtaining the Information Sought

Three types of documents can be us ed to compel

disclosure of the information listed above: (1) search warrants; (2) 18 U.S.C. § 2703(d) court orders; and (3) subpoenas. The choice of which document is appropria te will depend upon the type of information sought. While the consent of the customer or subscriber may always be obtained, often consent is not sought for tactical reasons. Listed below are the minimum legal methods to require a network service provider to disclose information. However, if one type of process is used, that process can also be used to access information that could have been obtained with a “lesser” form of process. So, for example, you may obtain a search warrant to compel the production of certain information, even if a § 2703(d) court order or subpoena

would suffice.

1. Obtaining Basic Subscriber Information

- Subpoena

A subpoena may be used to obtain “basic subscriber information” from a network service provider. 18 U.S.C. § 2703(c)(2). When using a subpoena, you are not requir ed to provide notice to the subscriber or customer. The subpoena

can be issued by a Federal Grand Jury, a Federal trial court, or an administrative subpoena authorized by a Federal statute, such as 6(a)(4) of the Inspector General Act.

2. Obtaining Transactional Records

– Court Order

To obtain “transactional records,” you must, at a minimum, use a court order issued pur suant 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

27 03(d) order, you must “offer specific and articulable facts showing that there are reasonable grounds to believe that the

contents of a wire or electronic information, or the records or other information sought, are ‘relevant and material’ to an ongoing cr iminal investigation.” As with a subpoena, you are_______________ Electronic Law and Evidence 243 not required to provide prior notice to the customer or subscriber before requiring the network service provider to disclose the records sought.

3. Obtaining Contents

– Depends on Time and

Retrieval Status

You may require a network service provide r to provide the

actual contents of wire or electronic communications held in storage, such as the body of an email.

The legal method you must use varies, depending on whether the email has been “retrieved” (opened) and how long

the communication has bee n held in storage.

(a) Unretrieved (Unopened) Communications That Have Been in Storage for 180 Days Or

Less

To require a network service provider to disclose the

unretrieved contents of a wire or electronic communication that has been in storage for 180 days or less, you must obtain a

search warrant. 18 U.S.C. § 2703(a). When usi ng a search warrant, you are not required to give prior notice to the

customer or subscriber. Further, you may apply for a court order to prohibit the network service prov ider 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: endangerin g 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 a network service provider may be required to delay notice to the customer. Instead, the statute provides that such an order may be issued “for such period as the court deems appropriate.”_______________ Electronic Law and Evidence 244 (b) Retrieved Communications and Communications that Have Been In Storage For More Than 180 Days

To compel disclosure of the contents of a wire or electronic communication that has been retrieved, or tho se that have been in storage for more than 180 days whether retrieved or not, you have three options depending on whether the email has been opened, and if unopened, how long it has been held in storage on the network server.

You may use a s earch warrant to obtain wire or electronic

communications that have been retrieved or held in storage for more than 180 days whether retrieved or not. When a search warrant is used, the notice provisions outlined above apply.

You may also use an 18 U.S.C. § 2703(d) court order to require a network service provider to disclose the contents of

wire or electronic communications tha t have been retrieved or held in storage for more than 180 days whether retrieved or not. Unlike when using a warrant, when a § 270 3(d) court order is used to obtain this information, you must provide prior notice to the customer or subscriber. 18 U.S.C. § 2703(b)(1)(B)(ii). This prior notice may be delayed for a period not to exceed ninety days, if you request a delay and the court determines that notifying the customer of the existence of the court order may have an “a dverse result.”

Extensions of the delay period are possible, but must be justified each time using the “adverse result” sta ndard. 18 U.S.C. § 2705(a)(4). Once t he delayed notice period expires, you must notify the customer of the court order and explain the procedures surrounding the delay in notification. As with a search warrant, you may apply for a court order preventing the network service provider from noti fying the customer or subscriber of the existence of the court order “for such period as the court deems appropriate.”

Finally, you may use a subpoena to obtain the contents of

wire or electronic communications that have been retrieved or_______________ Electronic Law and Evidence 245 held in storage for more than 180 days, whether retrieved or not. 18 U.S.C. § 2703(b)(1)(B)(i). As with “basic subscriber information,” the subpoena may be a Federal Grand Jury subpoena, a Federal trial subpoena, or an administrative subpoena authorized by a Federal statute. You must give prior

notice to the customer when using a subpoena to obtain this type of information.

The court may delay notification to the customer for a period not to exceed ninety days if a “sup ervisory official” certifies in writing that there is reason to believe that prior notice may have an “adverse result.” A “supervisor y official” is defined by statute as “the investigative agent in charge or assistant investigative agent in charge or an equivalent of an investigating agency’s headquarters or regional office, or the chief prosecuting attorney or the first assistant prose cuting attorney or an equivalent of a prosecuting attorney’s headquarters or regional office.” 18 U.S.C. § 2705(6).

Upon request, the court may delay notice for successive ninety

- day periods, as long as the requirements of a supervisory

official certific ation and an adverse result are present.

C. Preservation Orders

There is no require ment under the law for a provider to retain the emails of their customers for any specific period of time. There is the danger that between the time when the need for the emails becomes apparent and an order is issued, those emails could be destroyed.

To guard against email evidence from being destroyed before an order is obtained, the first step is for you (not a judge)

to issue a “Preservation Order” unless the correct legal process can be obtained and served immediately upon the network service provider . This authority is under 18 U.S.C. § 2703(f) 9

9 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statute s.”_______________ Electronic Law and Evidence 246 and is often referred to as an “f

- order.” When you issue an f

order upon a network service provider, the provider must “take all necessary steps to preserve records and other evidence in its possession pendin g the issuance of a court order or other process.” By statute, the records must be retained for a period of ninety days, with a ninety

- day extension possible upon a renewed request by the government.

D. Multi

- Jurisdiction Warrants and Stored Electronic

C ommunications

Ordinarily, a search warrant may only be issued by a judge in the district where the evidence is located. This would present a problem with getting a warrant for stored electronic communications because even a single network provider may

store emails on servers in more than one distri ct. For this reason, 18 U.S.C. § 2703 eliminates the need to obtain multiple warrants for these stored emails, and authorizes a federal judge “with jurisdiction over the offense under investigation” to issue

a warrant that is effective in all districts._______________ Electronic Law and Evidence 247 

## Obtaining Stored Electronic Communications

Data Requested Legal Process to Obtain

Subpoena 2703(d) Court

order

Note 2 Search

Warrant No prior

notice

Contents

- In storage for 180 days or less. X

Contents

- In storage for

more t han 180 days. X with prior

notice. Note 1 X

w ith prior

notice. Note 1 X

Contents

– Email has been opened. X with prior

notice. Note 1 X

w ith prior

notice. Note 1 X

Transactional

information X X

Basic subscriber

Information X No prior

notice X

N

o prior notice X

1. Notice to the subscriber or customer required, but a delay order for 90 days may be obtained pursuant to 18 U.S.C. Section 2705 (a)(1) if the issuing court

determines that there is reason to believe that: A. In the case of a 2703( d) order, notification of the existence of the order would have an "adverse effect, or B. In the case of a subpoena, upon receipt of a written certificate of a supervisory official that there is reason to believe that notification might have

an adverse result. The "adverse result" factors listed are listed in 18 U.S.C. Section 2705 (a)(2)) (Endanger life or safety; flight from prosecution; destruction/tampering with evidence, witness intimidation, or otherwise seriously jeopardizing an investigation or unduly delaying a trial. 2. 2703(d) court order requires specific and particularly facts showing there are reasonable grounds to believe that the communications or records are material and relevant to an ongoing criminal investigation._______________ Electronic Law and Evidence 248 

### NOTES_______________ Federal Court Procedures 249 

## Chapt er Eight

Federal Court Procedures

I. I NTRODUCTION TO THE F EDERAL C OURT S YSTEM

................... 251

II. T RIAL C OURTS , A PPELLA TE C OURTS , J UDICIAL D ISTRICTS

...... 252

A. Functions of Criminal Courts

................................ ............ 252

B. Districts

................................ ................................ ............ 252

III. T HE F EDERAL C OURTS

................................ ...................... 253

A. The Supreme Court

................................ ........................... 253

B. The Circuit Courts of Appeals

................................ ........... 253

C. Classification of Offenses

................................ .................. 254

D. Federal District Courts

................................ ...................... 255

E. U.S. Magist rate’s Courts

................................ ................... 255

F. Review of Jurisdiction

................................ ....................... 256

G. Appointment of Justices and Judges

................................ . 256

IV. C OURT D OCUMENTS O FFICERS NEED TO K NOW

..................... 256

A. Criminal Compliant

................................ ........................... 256

B. Information

................................ ................................ ....... 257

C. Indictment

................................ ................................ ........ 257

D. Arrest Warrant

................................ ................................ .. 257

E. Summons

................................ ................................ ......... 258

F. “Tickets”

................................ ................................ ............ 258

V. T HE I NITIAL A PPEARANCE

. (R ULE 5)

................................ .... 259

A. The Initial Appearance

................................ ...................... 259

B. Bringing a Defendant before a Magistrate Judge

............... 259

1. Warrantless Arrest

................................ ....................... 259

2. Arrest with a Warrant

................................ .................. 259

3. Summons

................................ ................................ .... 260

C. Using Non

- Federal Judges for an Initial Appearance

......... 260

VI. R ESPONSIBILITY UPON A RREST

- T HE I NITIAL A PPEARANCE

..... 260

A. The Requirement and Timing

................................ ............ 261

B. The Purpose and Procedure

................................ .............. 261

C. The Defendant’s Rights

................................ ..................... 261

D. Pretrial Release or Detention?

................................ ........... 262

1. Pretrial Services Interview and Recommendation

......... 262

2. Judge’s Options

................................ ........................... 263

3. Conditional Release

................................ ..................... 263

E. Detention Hearings and Decision

................................ ...... 263

F. Release is Preferred

................................ ........................... 263

G. “Bail Jumping”

................................ ................................ .. 264_______________ Federal Court Procedures 250 VII. A RRESTS OUTSIDE THE D ISTRICT OF THE C RIME

.................... 264

A. Arrests in a District other than the District of the Crime

... 264

B. Removal and Identity Hearings

................................ ......... 265

VIII. D IPLOMATS , F OREIGN N ATIONALS , M EM BERS OF C ONGRESS , AND
J UVENILES

................................ ................................ ...... 265

A. Diplomats

................................ ................................ ......... 265

1. Diplomatic Immunity

................................ ................... 265

2. Verifying the Status

................................ ..................... 26 6

3. Handling Diplomats

................................ ..................... 266

4. Traffic Incidents Involving Diplomats

........................... 267

B. Foreign Nationals

................................ .............................. 268

1. Arrests/Detentions

................................ ...................... 269

2. Consular Access

................................ .......................... 270

3. Deaths

................................ ................................ ......... 270

4. Appointments of Guardians/Trustees

.......................... 270

5. Ship/Air craft Accidents

................................ ............... 271

C. Members of Congress

................................ ........................ 271

1. Privilege from Arrest

................................ .................... 271

2. Exceptions to the Privilege

................................ ........... 271

D. Juveniles

................................ ................................ .......... 271

IX. P RELIMINARY H EARINGS AND A RRAIGNMENTS

....................... 272

A. Preliminary Hearings

................................ ........................ 272

1. Procedure

................................ ................................ .... 273

2. Results

................................ ................................ ........ 273

B. Arraignment

................................ ................................ ...... 274

X. T HE G RAND J URY

................................ ............................. 275

A. Purpose

................................ ................................ ............. 275

B. Selection, Empanelment, and Structure

............................ 275

C. Process

................................ ................................ ............. 276

D. Sealed Indictments

................................ ........................... 278

E. Post

- Indictment Grand Jury Powers

................................ .. 278

XI. G RAND J URY S UBPOENAS

................................ ................... 279

A. Power and Flexibility

................................ ......................... 279

B. Types (Rule 17)

................................ ................................ . 280

C. Service

................................ ................................ .............. 280

D. Quashing or Modifying

................................ ...................... 280

E. Legal Requirements

................................ ........................... 280

F. Limitations

................................ ................................ ........ 281

G. When a Subpoena can allow the Destruction of Evidence

- Using a Search Warrant

................................ .................... 282

H. The Mechanics of Obtaining

................................ .............. 283

I. Inspector General (IG) Subpoenas

................................ ..... 283_______________ Federal Court Procedures 251 XII. S ECRECY OF G RAND J URY P ROCEEDINGS (R ULE 6( E ))

............ 283

A. Exceptions to Rule 6(e)

................................ ...................... 284

1. The Non

- Government Witnesses Exception

.................. 284

2. District Court or AUSA Disclosure

............................... 284

3. Access to Grand Jury Matters

................................ ...... 285

4. The 6(e) list

................................ ................................ .. 286

XIII. D OCUMENTS R EQUIRED TO F ORMALLY A CCUSE A D EFENDANT

.. 287

XIV. D EFENSE A CCESS TO G OVERNMENT E VIDENCE

...................... 289

A. Discovery under Rule 16

................................ ................... 289

B. The Brady Doctrine

................................ ........................... 291

C. Disclosure under Giglio

................................ ..................... 292

D. The Jencks Act and Rule 26.2

................................ ........... 293

E. Continuing Duty to Disclose

................................ ............. 295

F. Sanctions for Non

- Compliance

................................ .......... 295

XV. V ENUE AND T RANSFER

................................ ....................... 295

XVI. T HE S TATUTE OF L IMITATIONS AND S PEEDY T RIAL A CT

.......... 297

A. Statute of Limitations

................................ ........................ 297

B. The Speedy Trial Act

................................ ......................... 299

XVII. P RESENTENCING I NVESTIGATIONS AND R EPORTS

.................... 300



## *****

I. Introduction to t he Federal Court System and the Law

Enforcement Officer’s Role

This chapter discusses how the federal courts operate, focusing on your role in obtaining the necessary documents,

and followin g the necessary procedures, to have a defendant brought before a court to answer a criminal charge. The course

is based on the Federal Rules of Criminal Procedure (hereinafter, Rules) 1 , but focuses on only those Rules that directly affect federal law enfo rcement officers. Rule numbers are provided for future reference. Knowing rule numbers is

unnecessary.

[Students in UPTP and GSA

- FPS must read Sections I through VI and Section VIII. Reading other sections for these programs is optional.]

1 All cited Rules can be found in their entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Rules of Criminal

Procedure.”_______________ Federal Court Procedures 252 II. Trial Court s, Appellate Courts, and Judicial Districts

A. Functions of Criminal Courts

Federal criminal courts perform one of two function s: they conduct the trial in a criminal case, and they hear any appeal by the government or defendant in a case that has already been tried. In a trial, evidence is presented, witnesses testify, and a verdict is reached. That evidence and the transcripts of the testimony by the witnesses constitute the official record of the case. In an appeal, witnesses do not testify and no evidence is presented. Instead, the appellant (the person bringing the appeal), using the official record from the trial, attempt s to demonstrate either that there is insufficient evidence in the record to justify his conviction or that the trial judge erred in ruling on a legal issue, or both.

B. Districts

The United States and its territories are divided into 94 judicial districts. Each state (as well as the District of Columbia

and Puerto Rico and 3 territories

– Virgin Islands, Guam, and the Northern Mariana Islands) has at least one judic ial district

court. Some states have more than one. A district never

crosses a state line. The exact boundaries are established in a

series of statutes in the U.S. Code.

You must know your district boundaries because many functions can be performed onl y in a certain district. For example, you must obtain an arrest warrant in the district where the crime was allegedly committed. Most search warrants may only be issued in the district where the evidence is located. A defendant has the right to be tried in the state and district where the crime allegedly occurred._______________ Federal Court Procedures 253 III. The Federal Courts

A. The Supreme Court of the United States

The Supreme Court is the final authority on the interpretation of federal law. Virtually all cases considered by the United States Supreme Court are appeals from the decisions of other courts (federal or state). There is no righ t 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 certi orari 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 w rite separate opinions.

In the spring of each year, the Supreme Court proposes changes to the Federal Rules of Criminal Proc edure. 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,

e stablish a dress code or require that a certain procedure be accomplished within a certain period of time. Local rules may require the use of particular forms of, for example, arrest complaints, warrants, etc. The sample forms in the additional

resources section of this student text may differ slightly among districts. Familiarize yourself with the local rules when arriving

in a new district.

B. The Circuit Courts of Appeals

There are 13 federal circuit courts of appeals spread across the United States consisting of 11 federal appellate circuits, the District of Columbia Circuit Court of Appeals, and_______________ Federal Court Procedures 254 the U.S. Court of Appeals for the Federal Circuit. The 11 appellate circuits consist of several districts and hear appeals

from the district courts located within its circuit. The Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases such as those involving patent laws. The courts of appeals have only appellate jurisdiction with three judge panels hearin g 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 b e to the Supreme Court. The decision of the court of appeals is binding only on the district courts within its circuit, but the opinion may influence the decision of the courts in other districts. The law may differ among the circuits as to particular le gal issues.

C. Classification of Offenses

Type Offense (18 U.S.C. § 3559) Maximum Possible Confinement If

Convicted

Felony More than one year or death. (When the death penalty is possible, the offense is also known as a “capital offense.”)

Class A

Misdemeanor One year or less, but more than 6

months

Class B

Misdemeanor 6 months or less, but more than 30 days

Class C

Misdemeanor 30 days or less, but more than 5 days

Infraction 5 days or l ess

Class B Misdemeanors, Class C Misdemeanors, and Infractions are collectively known as petty offenses

._______________ Federal Court Procedures 255 D. Federal District Courts

Federal district courts are the federal felony trial courts. While district courts may also try misdemeanors and infractions, usually they do not. Only a district court may try a felony. In addition to the actual trial of the case, district courts also conduct associated pr oceedings leading up to and following the trial. The nature of these proceedings is discussed later, but by way of example, a district court may set bail, take the defendant’s plea, conduct suppression hearings, and sentence

the accused after conviction. District courts may also perform functions that are part of a criminal investigation that may lead to a trial such as issuing search and arrest warrants.

E. U.S. Magistrate Courts

Every district has one or more magistrate judges who are appointed by the District Court judges. You may expect to make frequent appearances before a magistrate judge to obtain necessary court documents (such as an a rrest or search warrant) or to testify at pre

- trial hearings.

Magistrate judges may try Class A misdemeanors if the

defendant consents. If the defendan t does not consent to have a magistrate judge hear a Class A misdemeanor case, the case must be heard in district court. Magistrate judges may also try any petty offense (Class B and C misdemeanors and infractions)

whether or not the defendant consents.

Though magistrate judges may not conduct trials in felony cases, they routinely will conduct pre

- trial hearings

related to those cases. For example, you would take a defendant you arrested on a felony before a magistrate judge for an initial appearance and a detention hearing even though the magistrate judge will not conduct the trial. Although District Court judges could conduct such pre

- trial proceedings, in most

fe lony cases District Judges usually delegate their authority to do so to magistrate judges._______________ Federal Court Procedures 256 F. Review of Jurisdiction to Try Federal, Criminal

Cases

Type Offense Where the case will

be tried

Felony District court.

Class A Misdemeanor Magistrate court if the

defendan t consents. If no consent, in district court.

Petty Offenses (Class B and C Misdemeanors and Infractions) Magistrate court.

G. Appointment of Justices and Judges

Supreme Court justices, and judges of the courts of appeals and district courts, are nominated by the President,

c onfirmed by the Senate, and serve for life unless impeached. Magistrate judges are appointed by, and serve under the supervision of, district court judges for a specific term (eight years). The district court judges may re

- appoint a magistrate judge for one or more successive terms.

IV. An Introduction to Court Documents

You must know what legal documents are necessary to accomplish a certain purpose. This section is an introduction

to so me of those documents. Later in this chapter some of the documents will be discussed in greater detail.

A. Criminal Compliant

You will prepare criminal complaints. A criminal complaint states a charge along with facts establishing probable

cause that the crime was committed and the defendant committed it. The complaint is signed by the officer , under oath, in front of the judge (usually a magistrate judge). Criminal complaints are used in two situations: to obtain an_______________ Federal Court Procedures 257 arrest warrant or summons

, or to state the charge when you

make a warrantless arrest.

If you have probable cause a suspect comm itted an offense, you may prepare a criminal complaint and obtain an arrest warrant. (Instead of an arrest warrant, you may elect to obtain a summons.) If you have probable cause, you may also arrest a suspect before you are able to obtain an arrest warra nt. In that case, you will prepare a criminal complaint after the arrest but before taking the arrested person before a judge. A sample criminal complaint is in the additional resources

section.

B. Information

An info rmation is a list of criminal charges brought against a particular defendant by the United States Attorney. Where the charge is a felony, prosecution of a defendant based on an information may only ensue where the defendant has waived his constitutional right to be charged by way of a grand jury indictment (see below). An information is routinely used to charge misdemeanor offenses.

C. Indictment

An indictment is a list of criminal charges brought against a particular defendant by a grand jury. The grand jury

consists of 23 me mbers 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 def endant committed it. In order to try a defendant for a felony, the government must obtain an indictment. Exceptions to this rule, and how an indictment is obtained, will be discussed later.

D. Arrest Warrant

An arr est 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._______________ Federal Court Procedures 258 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 soo n as possible. After executing the warrant through the arrest, the officer must make a return (report) to the judge before whom the defendant is taken after arrest. A sample application for an arrest warrant and an arrest warrant

are in the additional re sources section.

E. Summons

A summons is issued by a judge, served on a defendant, and requires that the defendant appear before the co urt 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 issu ed. 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 reside nce 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 w ho serves a summons must complete the back of the summons stating how and when the summons was served. Filling out the back of the summons is known as making a “return” of the summons. A sample summons is in the additional resources section.

F. “ Tickets ”

A citation or violation notice is similar to a traffic ticket and is issued by an officer._______________ Federal Court Procedures 259 V. The Initial Appearance (Rule 5)

A. The Initial Appearance

A defendant’s first appearance before a federal judge will be at a proceeding called an initial appearance. While a district court judge could conduct the initial appearance, a magistrate judge usually conducts them even in felony cases.

B. Methods of Bringing a Defendant before a Magistrate Judge

1. Warrantles s Arrest

You typically may make a warrantless arrest when you have probable cause that the defendant committed a felony

offense and when a misdemeanor was committed in your presence. Since the defendant has the right to know of the charges for which he has been arrested, you must prepare a criminal complaint after the defendant is arrested and before taking the defendant to the initial appearance. (The authority to arrest and when a misdemeanor arrest may be made is covered in the Fourth Amendment section of this handbook).

2. Arrest with a Warrant

You may obtain arrest warrants in several ways.

(a) With a criminal complaint.

You may prepare a criminal complaint, swear to it before a magistrate judge and request an arrest warrant.

(b) With an indictment.

If the defendant has been indicted by a grand jury, you may obtain an arrest warrant by presenting the indictment to a judge and request ing a warrant._______________ Federal Court Procedures 260 (c) With an information.

If the AUSA has filed an information, you may obtain an arrest warrant by presenting the information to a judge and requesting a warrant.

3. Appearance on a Summons

Instead of obtaining an arrest warrant with a criminal

c omplaint, indictment or information, you may obtain a

summons . The summons will direct the defendant to appear in court for an initial appearance without being arrested.

C. Using Non

- Federal Judges for an Initial Appearance

Federal law permits certain state and local judicial officers to perform some federal court functions to include swearing officers to criminal complaints, issuing arrest warrants, and conducting initial appearances. Avoid using state or local judges to issue federal warran ts or conduct federal proceedings except in exigent circumstances and only after first coordinating the need with your AUSA. 18 U.S.C. § 3041.

VI. The Officer’s Responsibility upon Arrest

- The Initial Appearance

After an arrest but before the initial appearance, you will take certain steps to secure and prepare the defendant for processing by the courts. Such steps include: a search incident to arrest; booking procedures (fing erprinting, photographing, preparing various forms); transporting the defendant to a federally approved detention facility; a possible inventory of impounded property; and notifying the Pretrial Services Office. If the arrest was without a warrant, and a criminal complaint, indictment, or information has not already been prepared, you must prepare a criminal complaint._______________ Federal Court Procedures 261 A. The Requirement and Timing of the Initial Appearance

Immediately after making an arrest, you must take the

defendant “without unnecessary delay” before a magistrate judge for an initial appearance. Rule 5(a). The Supreme Court has never defined exactly what “unnecessary delay” is, but a good rule of thumb is that you should ordinarily have the defendant in court for an initial appearance the next time the Magistrate Judge holds court following the defendant’s arrest. You should be aware of any particular requirements in this regard set forth in the district’s Local Rules. The courts have given examples of unnecessary delay as: delay for the purpose of gathering additional evidence to justify the arrest; delay motivated by ill will against the arrested individual; or delay for delay’s sake. If there is the possibility it may take longer than 48 hours to have the defendant at the initial appearance, you should immediately notify the AUSA or the dut y AUSA after hours. If a federal judge or magistrate judge is unavailable, you may take the defendant before a local or state judge, mayor of a city, or other official designated in 18 U.S.C. § 3041 for an initial appearance. This alternative should not be used unless approved by the AUSA.

B. The Purpose and Procedure of the Initial Appearance

The primary purpose of the initial appearance is to inform

the defendant of th e charges for which the arrest was made and the procedural rights in the upcoming trial. Pre

- trial release (bail) may also be considered at this time.

C. The Defendant’s Rights at the Initial Appearance

The j udge 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 defe ndant. The defendant will be told of his right to retain counsel, and if the defendant cannot afford counsel, the right to have counsel_______________ Federal Court Procedures 262 appointed. The defendant will also be told how he can secure pretrial release, the defendant’s right not to make a sta tement, and that any statement made can be used against him.

D. Pretrial Release or Detention

The defendant can be released or detained pending the trial date. This determination is made by applying the Bail Reform Act, 18 U.S.C. §§ 3141

- 42. In most cases, there is a presumption that the defendant will be released on bond and conditions. The government may on ly 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 o r 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 determi nation is as follows:

1. Pretrial Services Interview and

Recommendation

Prior to being taken to the initial appearance, the Pretrial

Services Office within the district collects information from t he 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 offi ce recommends release pending trial, and you believe that detention is warranted, inform the AUSA immediately so the AUSA can decide whether to request a detention hearing. The report prepared by the Pretrial Services Office is confidential, but it may be released to the AUSA. A copy will not automatically be given to you._______________ Federal Court Procedures 263 2. Judge’s Options

At the initial appearance, the judge may:

**•** Release the defendant on his own recognizance,

**•** Release the defendant on condition or conditions that may include bail,

**•** Conduct a detention hearing if the lawyers for both side are prepared to proceed, or

**•** Temporarily detain the defendant until the detention hearing can be held.

3. Conditional Release

The judge has wide discretion in selecting conditions that are reasonably ne cessary 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: mai ntaining employment; travel restrictions; restrictions on place of residence and associating with other persons to include victims and witnesses; curfews; drug and alcohol use; medical evaluation and treatment; bail; limited custody when the defendant is n ot at work; and “tethering” by electronically monitoring the defendant’s location.

E. Detention Hearings and Decision

The decision to detain the def endant in custody is made at a detention hearing . At that hearing, the defendant is permitted to present ev idence, call witnesses, cross

- examine other witnesses, and be represented by counsel.

F. Release is Preferred

The Bail Reform Act requires the pretrial release of a defendant on either his personal recognizance or an unsecured_______________ Federal Court Procedures 264 appearance bond, subject to conditions while on release, unless the judge determines release: (1) Will not reasonably assure the appearance of the defendant (flight risk), or (2) Will endanger the safety of any other person in the communit y. The judge will consider the seriousness of the charged offense, the strength of the case, criminal history, and the possible danger that the defendant may present to the community.

G. “Bail Jumping”

If the defe ndant fails to appear in court after being released, the judge has many options to include a charge for violating the federal Failure to Appear statute, also known as “bail jumping.” If later convicted of bail jumping, the sentence for bail jumping will be in addition to (consecutive sentence) any

sentence for the offense for which the defendant failed to

appear. 18 U.S.C. § 3146.

VII. Arrests outside the District where the Crime was

Committed

If you arrest the defendant in the district where the cr ime occurred, you must take the defendant for his initial appearance in that district. When possible, an arrest should be

made in the district where the offense was committed because the officers, AUSA, and judge will already be familiar with the case, and it will be easier to obtain witnesses for any necessary proceedings.

A. Arrests in a District other than the District where

the Crime Occurred

When you arrest the defendant in any district other than the one in which the crime occurred, there are several options

for where to take the defendant for the initia l appearance, depending on the proximity of other districts and how quickly the initial appearance can be held. You may take the defendant to a district that meets the following criteria:_______________ Federal Court Procedures 265 **•** The district in which the defendant was arrested, or

**•** An adjacent district (a district that touches the district of arrest) if:

the initial appearance can occur more promptly in the adjacent district, or

the offense was committed in the adjacent

district and the i nitial appearance can be held on the same day as the day of arrest.

B. Removal and Identity Hearings

W hen the initial appearance is held in a district other than one in which the crime occurred, the judge must conduct a removal, and often, an identity hearing.

“Removal” is the process of transferring the defendant to

the district where the crime occurred to stand trial. If the defendant was arrested without a warrant, you must obtain an

arrest warrant from the district where the crime occurred. The documents can be sent by facsimile.

As part of the removal hearing process, the judge must determine that the defendant is the same person named in the

arrest warrant. This will be done at an identity hearing. When

the defe ndant admits his true name, this requirement is satisfied. Otherwise, the AUSA may have to produce witnesses

who can identi f y the defendant or match descriptions from

other evidence.

VIII. Diplomats, Foreign Nationals, Members of Congress,

and Juveniles

A. Diplomats

1. Diplomatic Immunity

Diplomats are representatives of foreign countries who work in the United States on behalf of the government of that foreign country. In order to enjoy status as a diplomat, a_______________ Federal Court Procedures 266 foreign government representative must be officially recognized by the U.S. government.

Diplomatic immunity is based on international law and

treaties that the United States has made with other nations. A person with diplomatic immunity is not subject to the jurisdiction of U.S. courts either for official, or, to a large extent, personal activities and therefore may not be arrested or prosecuted for any offense no matter how serious.

The same laws that protect foreign diplomats in the U.S. also protect U.S. diplomats overseas.

2. Verifying the Status of Diplomats

There are many levels of diplomatic immunity; this course will only discuss those with full diplomatic immunity. When encountering suspects who claim diplomatic immunity, inform the suspect they will be detained until their identity and diplomatic st atus has been verified. Most diplomats carry diplomatic passports or identification cards issued by the U.S. Department of State. Nevertheless, verify the claimed status of every person by calling the Departme nt of State at the Diplomatic Security Command Center (DSCC) at 202/647

- 7277. DSCC will respond with diplomatic status and degree of immunity.

If the State Department does not verify the person’s diplomatic status, you may treat the person as any other
suspect.

3. Handling Diplomats after Verifying Diplomatic

Status

**•** Do n ot arrest.

**•** Investigate and prepare a report.

**•** Do not use handcuffs unless the diplomat poses an immediate threat to safety._______________ Federal Court Procedures 267 **•** Do not search or frisk the person, his vehicle, or personal belongings unless necessary for officer safety.

4. Traffic Incidents I nvolving Diplomats

You may stop and cite diplomats for moving traffic

violations. This is not considered detention or arrest. The diplomat may not b e compelled to sign a citation. In serious traffic incidents (DWI, DUI, and accidents involving personal injury) you may offer a field sobriety test, but the diplomat may not be required to take it. Vehicles may not be impounded or booted, but may be tow ed 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 arrang ements and yet still be too intoxicated to drive or walk home. In such instances, contact your supervisor and call upon the diplomat’s embassy to advise them of the situation. The diplomat’s government may take action on its own or direct its diplomat to accept offers of assistance. If the diplomat persists in driving while intoxicated, you must use your common sense to secure the car keys or perhaps block the car so the diplomat cannot drive it. You should not stand by while an intoxicated person attem pts to

drive.

In other situations, a diplomat may still present a possible danger to others. For example, during a domestic assault, the diplomat may still be trying to strike a spouse. Again common sense should prevail, and you should notify a superior and the diplomat’s embassy. You might offer protection to the potential victim of an assault. If the diplomat presents a threat of injury to you or another, you may use reasonable force to prevent injury; however, you still may not

arrest._______________ Federal Court Procedures 268 Forward rep orts 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 f or incident reports, etc. is Protective Liaison Division, DSS

– fax (202) 895

- 3613.

By law, a foreign embassy or diplomatic mission must be treated as foreign (non

- U.S.) soil. Even with a search or arrest warrant, you may not enter these places without p ermission from the foreign nation.

B. Foreign Nationals 2

- Compliance with the Vienna

Convention o n 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

c ontained 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 gove rnment 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 cit izens 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.

2 The Legal Division thank s the U.S. Department of State Bureau of Consul ar Affairs for submitting the following material for this chapter. Additional information can be obtained by calling (202) 647

- 4415 or at http://travel.state.gov/law/notify.ht ml._______________ Federal Court Procedures 269 1. Arrests/Detentions

– Advising of Right to Consular Notificati on 3

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 r ight 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 individual, is relevant to the consular notification decision; the only triggering factor is arrest or detention of a non

- U.S. citizen.

(a) requested notification (“Basic Rule”)

If the detained foreign national is a national of a country that is not on the mandatory notific ation list, the “Basic Rule” applies: you must inform the foreign national without delay of the option to have his/her government’s consular representatives notified of the detention. If the detainee requests notification, a responsible detaining official must ensure that notification is given to the nearest consulate or embassy of the detainee’s country without delay.

(b) mandatory notification (“Special Rule”)

In some cases, however, the foreign national’s consular officials must be notified of an arrest and/or detention regardless of the foreign national’s wishes. Those countries requiring mandatory notification are identified in the State Department list of “Special Rule” (mandatory notification)

countries. If a national of one of these countries is arrested or

detain ed, notification to the individual’s consular officials must be made without delay.

3 Please see “Consular Notification” materials in the companion book, Legal Division Reference Book , in the segment entitled “ Additional Resources

Section.”_______________ Federal Court Procedures 270 Whether the case falls under the “Basic Rule” or the “Special Rule”, you should always keep a written record of all notification actions taken, including initial provision of information to the detained individual about the right of

consular notification and access.

2. Consular Access

Detained foreign nationals are entitled to communicate with their consular officers. Any communication by a foreign national to his/her consular representatives must be forwarded by the appropriate local officials to the consular post without delay . Foreign consular officers must be given access to and allowed to communicate with their nationals who are being held in detention. Further, they are entitled to provide consular assistance, such as arranging for legal representation and contacting family members. They must refrain from acting on behalf of a foreign national, however, if the national opposes their involvement. The rights of c onsular access and communication generally must be exercised subject to local laws and regulations.

3. Deaths

When U.S. government officials become aware of the death of a foreign national, the nearest consulate of that national’s country must be notified without delay . This will permit the foreign gove rnment to make an official record of the death for its own legal purposes.

4. Appointments of Guardians/Trustees

When a guardianship or trusteeship is being considered with respect to a foreign national who is a minor or an incompetent adult , consular officials must be informed without delay

._______________ Federal Court Procedures 271 5. Ship/Aircraft Accidents

If a ship or airplane registered in a foreign country wrecks or crashes in the United States, consular officials of that country must be notified without delay

.

C. Arresting Members of Congress

1. Privilege from Arrest

Members of congress are privileged from arrest while Congress is in session and while attending, or going to and from, sessions of congress. (Art.1, Section 6 of the U.S. Constitution.) The privilege does not prohibit issuing traffic and other citations, investigating and preparing reports, ser ving a subpoena or summons, or prosecution for a crime.

2. Exceptions to the Privilege

Even if attending congressional sessions or on the way to and from them, a member of congress may be arrested for a felony or breach of the peace. Generally, a breach of the peace

is a n offense that involves violence. Because “breach of the peace” is a fluid term and subject to constant interpretation, you should investigate and document the breach of the peace and then submit your findings to your superiors. No arrest

should be made unless authorized by your superiors in consultation with U.S. Attorney’s Office.

D. Arresting Juveniles

A juvenile is a person who is under the age of 18. There are speci al procedures that you must follow when you arrest a juvenile:

**•** Immediately advise the juvenile of their Miranda rights in words that a juvenile can understand even if you do not intend to question the juvenile;_______________ Federal Court Procedures 272 **•** Immediately notify the AUSA of the juvenil e’s arrest and the charge(s);

**•** Immediately notify the parents or guardian of the juvenile’s arrest, the charges, and juvenile’s legal rights under Miranda . (It is your responsibility to make a good faith effort to notify the juvenile’s parents or guardian. If the parent or guardian requests to speak with the juvenile, you must allow it), and

**•** Take the juvenile forthwith before a United States magistrate judge . (Forthwith requires more speed than “unnecessary delay”), and

**•** Do not make a media release. You should not make public the name or the picture of any juvenile (or any reports, documents, fingerprints, and the like pertaining to t hem) without prior approval of

the district court.

You may and should investigate the case as you would any other. If the juvenile understands and waives his Miranda rights, you may question the juvenile. Any statement obtained lawfully and without delay in bringing the juvenile before the magistrate judge will be admissible in court.

When you intend or expect to arrest a juvenile, attempt to obtain the approval and guidance of the AUSA before the arrest.

IX. Preliminary Hearings and Arraignments

A. Preliminary Hearings

A preliminary hearing is a proceeding during which the government is required to produce evidence from which the Court may conclude whether or not the defendant’s arrest was based upon probable cause. Rule 5.1(a) r equires that the magistrate judge hold a preliminary hearing for all defendants, other than those charged with a petty offense, with the following exceptions:_______________ Federal Court Procedures 273 **•** The defendant waive s (gives up the right to) the hearing.

**•** The defendant was already indicted, or charged by information, before the time the preliminary hearing is to be held.

**•** The government dismisses the case on its own. A defendant who has been detained in custody must

then be released.

1. The Preliminary Hearing Procedure

At a preliminary hearing, the magistrate judge will hear evidence to determine whether there is probable cause to

believe that a n offense has been committed and that the defendant committed it. The AUSA will call witnesses and may offer other evidence. You may testify at preliminary hearings. The defense may cross

- examine government witnesses, call its own witnesses, and offer ev idence. 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 giv en at the preliminary hearing is recorded and could be used to impeach your testimony at a later proceeding.

2. The Preliminary Hearing Results

If the judge finds there is probable cause to believe an offense has been committed and the defendant committed it, the defendant will be required to appear for further proceedings. If the judge decides there is no probable cause, the judge will dismiss the complaint. If the defendant is in custo dy, he will be released. A finding of no probable cause does not prevent a subsequent prosecution. The investigation may continue, and the AUSA may still seek an indictment or file an information.

The preliminary hearing must be held not later than 10 days after the initial appearance if the defendant is detained in_______________ Federal Court Procedures 274 custody, or 20 days after the initial appearance if the defendant has been released from custody. Generally, a preliminary hearing is held in the same dist rict as the initial appearance.

When the defendant is arrested in a district other than where the crime occurred and the initial appearance is held in the district of arrest, he may elect to have the preliminary hearing

in the district where the crime occu rred.

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 prelimina ry 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 i nformation is obtained, as illustrated by the below examples:

**•** The danger that a defendant may harm another, flee, or destroy evidence may require an immediate

arrest.

**•** Before an indictment can be obtained, you realize that the defendant may be in possessi on of evidence at a particular time and wish to take advantage of a search incident to arrest.

B. Arraignment

The purposes of an arraignment are: (1) to e nsure that the defendant has a copy of the indictment or information; (2) either to read the charging document to the defendant or to advise the defendant of the substance of the charges against him, (3) and for the defendant to enter a plea to those charg es.

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 waive r, pleads not guilty, and certifies receipt of a copy of the indictment or information._______________ Federal Court Procedures 275 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 r esponse to it, will enter an order requiring the exchange of discovery by the government and defense counsel in preparation for trial.

X. The Grand Jury 4

A. Purpose of the Grand Jury

A grand jury is an independent body that operates under the supervision of a district court judge and under the direction of an AUSA. From your point of view, a gran d jury performs two

essential functions.

First, grand juries return i ndictments. The Fifth Amendment to the U.S. Constitution provides that “... no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment by grand jury.” Accordingly, if the defendant is to be tried for a felony, a “true bill of indictment” (referred to simply as an indictment) is required unless the defendant waives it. Rule 7(a)(1).

Second, a grand jury may investigate crime within its district. Grand juries have broad powers to investigate crime and may, through the use of grand jury subpoenas, obtain testimony, documents, and other evidence that you cannot. If the grand jury concludes an investig ation 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) m atters.

B. Selection, Empanelment, and Structure

Grand jurors are selected by a random drawing, usually

4 The Federal Grand Jury Handbook can be found in the companion book, Legal Division Reference Book , in the segment entitled “Additional Resources

Section.”_______________ Federal Court Procedures 276 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 p rosecution. 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 16gra nd jurors present.

C. The Grand Jury Process

The grand jury usually meets in a special, private room. Grand jury proceedings are formal, but less formal than a trial. Unlike a trial jury, a gran d 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, c ase B in the afternoon, and then continue on case A again the following day. A grand jury may not meet every day, and a grand jury may not always be in session in

your area.

The grand jury serves under the guidance of the AUSA. While the grand jury is e mpanelled 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 mor e 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 witne ss 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_______________ Federal Court Procedures 277 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 gr and 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 bef ore the grand jury. The target may refuse to testify if the testimony would be incriminating. The target could be given immunity and be compelled to testify, but that is rarely done because immunized testimony cannot be used against the target later on.

The AUSA presents evidence to the grand jury. The evidence will consist of witnesses, documents, and other evidentiary items that are subpoenaed by the grand jury or that may be voluntarily submitted by a witness before the grand jury. The grand jurors may also ask questions. Because there is no defense counsel present, there is no cross

- examination. Because a grand jury hearing is not a trial, the Federal Rules of Evidence (with the exception of privileges) do not apply. This means that hearsay may b e used

, and that the AUSA is not required to lay a full foundation for evidence. In a “routine”

case, a one

- agent presentation may be sufficient even though many officers worked the case. Because the burden of proof at a grand jury is only probable cause , an AUSA might not present all the available evidence. Nevertheless, the Department of Justice policy is that indictments are not to be sought unless the responsible AUSA has determined that the evidence, viewed in its totality, constitutes proof beyond a reasonable doubt of the defendant’s guilt, the threshold of proof necessary for the jury to convict.

Though grand jury proceedings are secret, if a witness testifies at both a grand jury and the trial, the defense will receive a copy of the witness’s gr and jury testimony under the

Jencks Act (addressed later in this chapter). You must be accurate in your testimony because you may and likely will be_______________ Federal Court Procedures 278 cross

- examined concerning any conflicts between your trial and

gr and 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.

D. Sealed Indictments

Ordinarily, an indictment is returned in open court making it public. The AUSA may request that the judge keep

the i ndictment secret until the defendant is in custody. This is a valuable tool. In many cases, especially those involving multiple defendants, if indictments are made public or defendants are arrested at different times, other defendants may flee or destroy evidence. You may also be involved in cases with indictments being sought in several districts. By having an indictment sealed, you may coordinate multiple arrests to avoid tipping off defendants. Rule 6(e)(4).

E. Post

- Indictment Grand Jury Powers

The purpose of a grand jury is to investigate crime and

return indictments. Once an indictment has been returned on a charge, the power of the grand jury to i nvestigate that charge ends. This rule means that the grand jury may not be used solely to obtain additional evidence against a defendant who_______________ Federal Court Procedures 279 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 already

indicted defendant. In addition, the grand jury may not be used solely to assist the AUSA in pre

- trial discovery or tri al preparation.

XI. Grand Jury Subpoenas

A. Power and Flexibility of Grand Jury Subpoenas

Grand juries have the power to subpoena testimony and other evidence. What a grand jury may subpoena is often beyond your reach. Consider the following situations about how you often collect evidence and in parenthesis, the limitations you may face.

**•** You may seek consent to search. (But the person may refuse consent.)

**•** A witness may agree to an interview. (But you cannot force a person to submit to an interview.)

**•** You may request a search warrant. (But there may not be probable cause for the warrant.)

**•** You may get a court order to obtain information. (But the request may take too long, or the judge may refuse to issue it.)

In the above examples, you should consider whether a grand jury subpoena would meet your needs. In addition, subpoenas may be used to obtain the foll owing (this list is by no means complete): (1) corporate records that would reveal evidence of a crime; (2) a copy of an apartment lease or car rental contract that you need; (3) fingerprints, handwr iting 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._______________ Federal Court Procedures 280 B. Types of Grand Jury Subpoenas (Rule 17)

A subpoena Ad Testificandum commands the appearance of a witness to testify. A subpoena Duces Tecum , commands the person to produce specific books, papers, data, objects or documents designated in the subpoena and to testify about them. A sample grand jury subpoen a is in the Additional

Resources section of the text.

C. Service of Subpoenas

While the Rules specifically provide for service by U.S. Marshals, you may, and often will, serve subpoenas in your own cases. Unlike a summons that may be served upon a “person of suitable age and discretion” followed by mailing the summons, a subpoena must be personally served upon the per son named in the subpoena. Substitute service is not permitted. The failure to comply with a properly served subpoena is punishable as contempt of court.

D. Quashing or Modifying a Subpoena

A person who has been subpoenaed to provide information and who is subject to a privilege (such as the 5th Amendment or the spousal privilege) or who otherwise ob jects to the subpoena may go to court to “quash” (cancel) the subpoena. The court may either grant or deny such a motion to quash, or may modify the subpoena to limit what the person must provide.

E. Legal Requirements for a Subpoena

The item or testimony sought must be relevant to a grand jury investigat ion. 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. ”_______________ Federal Court Procedures 281 F. Limitations of Grand Jury Subpoenas

**•** A grand jury may only investigate crimes in the

district where they sit.

**•** A subpoena may not be used to investigate civil (non

- criminal) matters.

**•** Fifth Amendment (self

- incrimination) and other privileges apply. A subpoena may not compel a person to be a witness against himself if their testimony would tend to incriminate him. Persons who legitimately claim a privilege against self

incrimination may be compelled to testify if given a grant of immunity. If immunized, however, the testimony may not be used against that witness though it could be used against ano ther. In addition, a subpoena may not compel disclosure of information that is subject to other recognized privileges (attorney

- client, psychotherapist

- patient,

husband

- wife, and clergy

- communicant). DOJ requires special permission before issuing subpoena s to the media and to non

- target attorneys, doctors, and members of the clergy. The AUSA will have the details explaining how this can be accomplished.

**•** A subpoena may not be used to compel a person to submit to an interview. For example, believing that a witness might not give an interview, you serve a subpoena on the witness implying that if the witness submits to an interview, you will have the subpoena withdrawn. That is an improper use of grand jury powers. On the other hand, if you serve a subpoen a on a person, and if the witness then indicates willingness to be interviewed, you may lawfully conduct the interview. Your AUSA may thereafter release the witness from the necessity of appearing before the grand jury to testify._______________ Federal Court Procedures 282 **•** Subpoenas may not be is sued 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 locati ng and arresting fugitives.

G. What to do when a Serving a Subpoena may result

in the Destruction of Evidence

- Using a Search

Warrant

In some cases, yo u may have reason to believe that a person served with a subpoena for documents or other evidence may destroy the evidence or falsely deny having the subpoenaed item(s). With the approval of a U.S. Attorney, you may obtain a “forthwith” subpoena when ther e 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, t here still may be some opportunity to destroy evidence.

When a subpoena would allow a person to destroy or alter evidence, or falsely claim they do not have the item, you should consider obtaining a search warrant. A search warrant has several advantages over a subpoena: you select when the search warrant is executed; you can find the item yourself, thereby denying the suspect an opportunity to destroy the evidence; evidence found in plain view during the search can be lawfully seized; and evidence obtain ed 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._______________ Federal Court Procedures 283 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 re cords subpoenaed.

GJ: Can be relatively easy to obtain.

IG: Sometimes requires executive level approval. H. The Mechanics of Obtaining a Subpoena

The exact procedure varies in each district. Ordinarily, after the grand jury h as been empanelled, subpoenas are issued and signed in blank by the clerk of court. The AUSA or a grand jury subpoena coordinator in the AUSA’s office keeps the subpoenas. The AUSA decides if a subpoena will be issued. When you need a subpoena, contact the AUSA’s office and
request one.

I. Inspector General (IG) Subpoenas

In addition to grand jury subpoenas, IG subpoenas might

also be available. Most IG subpoenas are authorized by the Inspector General’s Act, 5 USC App. §6(a)(4). The following text box contrasts some aspects between IG and grand jury subpoenas.

XII. Secrecy of G rand 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_______________ Federal Court Procedures 284 flee or thwart investigations, and to protect accused persons who are ultimately exonerated from unfavorable publicity.

The following items are protected by grand jury secrecy rules, and you cannot disclose the item unless authorized to do

so. Collective ly, these items are known as “matters occurring before the grand jury,” or simply, “grand jury matters:”

**•** The names of witnesses (including that you were a witness);

**•** The testimony of a witness (including your own testimony);

**•** Documents and other items tha t were subpoenaed by the grand jury; and

**•** Other grand jury matters including information provided by the AUSA, questions by grand jurors, and what occurred in front of the grand jury.

A. Exceptions to Rule 6(e)

Exceptions to Rule 6(e)’s secrecy requirement are as follows:

1. The Non

- Government Witnesses Exception

A private citizen (non

- government employee) who testifies before a grand jury may lawfully disclose that they testified and the subject matter of their own testimony.

2. District Court or AUSA Disclosure

A district court judge can order disclosure of grand jury matters. Typically, with notice to a district court judge, the

AUSA controls disclosu re of grand jury matters. Requests to a district court judge are processed by the AUSA and do not involve you. The remainder of this section will discuss only release of grand jury matters by the AUSA._______________ Federal Court Procedures 285 3. Access to Grand Jury Matters

The existence of grand jury matters is of little value unless you can have access and use it. Grand jury matters, however, may not be released to just anyone and may be released only for limited purposes on a “need to know” basis. The AUSA can give the following groups access to grand jury matters for the purposes indicated:

**•** Federal and state officers for the purpose of enforcing federal criminal law. Grand jury matters

cannot be released for civil law purposes.

**•** Another AUSA for purposes of enforcing federal

criminal laws.

**•** Another grand jury. If a grand jury in District A has matters useful to a grand jury investigation in District B, the AUSA may authorize disclosure of grand jury matters to the grand jury in District B.

**•** Under the Jencks Act and Rule 26.2, the grand jury testimony of a person who later testifies at a trial or hearing will be provided to the defense. (The Jencks Act and Rule 26.2 are discussed thoroughly in a later section.)

**•** The Patriot Act, Title II, Sec. 203a

- Foreign intelligence and other persons and entities. There are other, limited situations when grand jury matters may be revealed that are beyond the sc ope of this course. For example, foreign intelligence information may be given to a wide variety of entities. Rule 6(e)(3)(C) permits the disclosure of grand jury information involving intelligence information to any federal law enforcement, intelligence , protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of official duties. This section requires_______________ Federal Court Procedures 286 notice to the court of the agencies to which

information was disseminated and adds a definition of “foreign intelligence information” to Rule 6(e).

4. The 6(e) list

You need, and may use, grand jury matters to conduct your criminal investigations. The AUSA who is assigned to your investigation may authorize you to have access to grand jury materials for that purpose and on a case

- by

- case basis. If you need access to grand jury matters, request approval from the AUSA. Officers from other agencies, or those in your chain of command who need grand jury information, must also obtain approval from the AUSA.

The AUSA is required to maintain a list of persons the AUSA has authorized to see grand jury matters. This is commonly known as “the 6(e) list.” You may disclose grand jury matters only to those on the 6(e) list.

Consider the following examples when grand jury matters may be disclosed:

**•** You are on a task force with officer B. You are on the 6( e) list; officer B is not. Officer B may not have access to grand jury matters until officer B is placed on the 6(e) list by the AUSA.

**•** You testified as a grand jury witness targeting a local politician. While out with friends at dinner, your friends (wh o are not on the 6(e) list) start discussing rumors that the politician is about to be indicted. You may neither disclose that you were a grand jury witness nor reveal your testimony or other grand jury matters.

Information obtained independently of the grand jury is not subject to the restrictions of Rule 6(e), even if the same information has previously been obtained using the grand jury or its subpoena power. For example, a copy of Document X was_______________ Federal Court Procedures 287 obtained through a grand jury subpoena. You seized ano ther copy of Document X during the execution of a search warrant. Copy 2, which was obtained by a source independent of the grand jury, may be given to anyone who needs to have it. Nevertheless, Rule 6(e) still prohibits your disclosure to anyone

not on the 6(e) list that Copy 1 was obtained by the grand jury.

“Mixed information” poses different problems. Consider an investigation in which you prepare a financial analysis that shows that the target of an inve stigation has been spending more money than all known sources of income combined. Your analysis is based both upon documents subpoenaed by the grand jury as well as on documents and information from non grand jury sources. If your analysis does not ident ify or refer to the source of information as grand jury matter, you may reveal the analysis to those not on the 6(e) list. However, if the analysis does reveal that grand jury matters are involved, you may only disclose it to those on the 6(e) list.

In g eneral, 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 su ch disclosure.)

XIII. Documents Required to Formally Accuse a Defendant

Before trial, the government, defendant, and the court must know exactly the offenses with which the defendant is charged. The charging document informs the parties of the exact charges. The charges at trial may be different than the ones in the complaint or informat ion 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, o r the AUSA may have obtained a superseding indictment._______________ Federal Court Procedures 288 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 misdemea nor 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 o r 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 occ ur.

Review of charging documents:

Type of Offense Court Minimum Charging

Document

Capital District Indictment only

Non

- capital Felony District Indictment, unless waived, and then by information

Misdemeanor District Information

Misdemeanor Magistrate Complaint

Petty Offenses Magistrate Citation or

violation notice_______________ Federal Court Procedures 289 A defendant charged with a Class A misdemeanor will be tried in magistrate court if the defendant consents. If a defendant charged with a Class A misdemeanor does not

consent to be tried in magistrate’s court, the defendant will be

tried in district court. When a misdemeanor is tried in district court, the AUSA will ordinarily prepare an information even if there is already a criminal complaint.

XIV. Defense Access to Government Evidence

In preparing for trial, the defense is entitled by law to know what evidence the government has so that it may attack the government’s case and mount a defense. Commonly referenced as “discovery material,” t his information must be disclosed to the defense under one or more of the following sources of authority: (1) under Federal Rule of Criminal Procedure 16; (2) through th e Brady doctrine; (3) under the Giglio case, and (4) under the Jencks Act/Rule 26.2. Additionally, most District Courts have local discovery rules that may requi re additional categories of information to be disclosed by the government and/or defense and that impose upon the parties certain time requirements for discovery.

A. Discovery under Rule 16

Upon a request by the defense at or following the defendant’s arraignment, the government must disclose to the defense, and make the items available for inspection and copying, evidence in its possession, or of which it has knowledge, that falls within certain categories of information. The defense almost always makes a discovery request, so Rule 16 materials are almost always provided to the defense. Rule 16 discovery covers that which is in the possession and control of the government, that which the government should know, and in some instances, what the government could know.

Discovery requests are made by the defense to the AUSA. AUSAs, not you, respond to discovery requests. Your role in discovery is to keep the AUSA informed about all the

information in the case so the AUSA is aware of the materials in_______________ Federal Court Procedures 290 the government’s possession that must be disclosed to the

defense.

Evidence discoverable under Rule 16 covers most

statements ma de 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 citize ns. 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.

**•** 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 witne ss interviews or recordings (written or electronic) statements. (If a witness testifies at a hearing or trial, however, the Jencks Act requires_______________ Federal Court Procedures 291 that the government then disclose any prior recorded (written or electronic) statements by that

witness to the extent that such recorded

information is relevant to the substance of that witness’ testimony.)

**•** Internal government documents made by you or the AUSA. This would include reports, memoranda, MOIs, and ROIs.

If the defense makes a discovery request, the go vernment
is also entitled to certain information (“reciprocal discovery”) from the defense. This will be handled by the AUSA.

B. The Brady Doctrine

In the Supreme Court case of Brady v. Maryland 5 , the

defendant was convicted and sentenced to death for first

- degree

murder committed in the co urse 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 th e “ Brady Doctrine” was

born.

5 Cases named in this chapter without a case cite are briefed in the companion book, Legal Division Reference Book. Examples of Brady Materials

**•** Evidence that another may have committed the charged

offense.

**•** Information supporting an alibi.

**•** Information suppo rting 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 292 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 defend ant’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 ha ve a reasonable opportunity to decide how to use the information.

C. Disclosure under Giglio

The Supreme Court case of Uni ted States v. Giglio requires the government to disclose information that tends to impeach any government trial witness, including you. “Impeachment” is information that contradicts a witness or which may tend to make the witness seem less believable. You must tell the AUSA about potential Giglio information so AUSAs

can decide what must be disclosed.

Information that may show the following must be

disclosed to the AUSA:

**•** Affects the credibility or truthfulness of the witness to include having lied in an investigation, character evidence of untruthfulness, or any bias.

**•** Payment of money for information or testimony.

**•** Plea agreements or immunity.

**•** Past or pending criminal charges.

**•** Specific instances of inconsistent statements.

**•** Findings of a lack of candor during an administrative inquiry.

**•** Any credible allegation of misconduct that reflects upon truthfulness or bias that is the subject of_______________ Federal Court Procedures 293 a pending investigation. Allegations made by a magistrate judge, district court judge, or prosecutor, and allegat ions that received considerable publicity must be disclosed to the

AUSA even if determined to be unsubstantiated

Information disclosed to the AUSA does not automatically go to the defense. The defense does not have an automatic and unrestricted right to see your personnel files. The government may be required to review files for Giglio information and produce it for an in camera inspection (by the judge only). The judge wi ll decide if the defense will get the information.

D. The Jencks Act and Rule 26.2

The Jencks Act requires the AUSA to give the defense any prior “statements” of a trial witness that are in the possession of the government, so the defense can conduct an effective cross

e xamination of the witness. 18 U.S.C. § 3500 6 . 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” inclu de:

**•** A written statement made and signed, or otherwise adopted, by the witness, such as an affidavit or a letter. If you show a witness notes that you have taken during an interview, for example, to have the witness confirm the accuracy of the notes, yo ur notes may hereby become that witness’ “adopted statement” for Jencks Act purposes.

6 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Federal Court Procedures 294 **•** A stenographic, mechanical, electrical, or other

recorded statement.

**•** A substantially verbatim transcript of an oral

statement made at the time the time the witness

w as speaking.

**•** The transcript of the witness’ grand jury testimony.

Your own notes may qualify as a Jencks Act statement in

certain circumstances such as stated above when a witness is shown the notes and vouches for their accuracy (an adopted statement.) You must therefore safeguard your notes, including original rough notes of interviews and other activities, even if they are later formalized or included in other reports. Determine your agency and local AUSA policy concerning safeguarding notes.

Rule 26.2 extends Jencks Act requirements beyond trials to other court proceedings such as suppression or detention hearings. While the statements of officers and other witnesses may not be discoverable by the defense under Rule 16, Brady

,

or Giglio , anytime a witness testifies at a trial or hearing, prior “statements” of that witness must be given to the defense under

the Jencks Act or Rule 26.2.

Example 1: A witness t estifies 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.

Exa mple 2: The signed or adopted statement of a government witness that he saw the defendant commit a crime (non

- exculpatory statement) is not discoverable. If that witness testifies at a trial or hearing, however, the statement must be given to the defense._______________ Federal Court Procedures 295 E. Continuing Duty to Disclose

Complying with discovery and disclosure requirements is a continuing obligation. If the defe nse 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 discove ry request, but later the test is performed, the government must disclose the results of

the test.

F. Sanctions for Non

- Compliance

Failure to comply with discovery and disclosure requirements can have drastic consequences. While the AUSA is responsible for fulfilling discovery requirements, you must

ensure the AUSA has all the information so that the AUSA can comply. Failing to comply with discovery requirements can result in government evidence being excluded, a trial continuance for the defense to evaluate newly discovered information, mistrial, and even a reversal of conviction if the

non

- compliance is discovered after trial.

XV. Venue and Transfer

It is important for you to determine the venue for any offense under investigation. Venue controls what judge can perform certain functions, wher e 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 au thority to try any federal criminal case. Venue means place. The U.S. Constitution provides that a defendant has the right to have his

case tried in the state and district where the crime occurred.

Venue affects how you perform y our duties. Each of the actions below must be performed in the district where the crime occurred (venue):_______________ Federal Court Procedures 296 **•** Return of a grand jury indictment.

**•** Presenting a criminal complaint or filing an

information.

**•** Obtaining an arrest warrant or summons.

**•** In most case s, 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 d istrict 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 ter mination 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 th e below exceptions apply.

**•** Transfer from the District for Plea and Sentence

- Rule 20. If a defendant is arrested in a district other than the one where the crime occurred, the

defendant will ord inarily be removed to the district

where the crime occurred for trial. At the defendant’s request, trial can be in the district of arrest (the case will be transferred to the district of arrest) if guilt is not cont ested, and the AUSAs and judges in both districts agree.

**•** Change of Venue. (Transfer for Trial, Rule 21) The defense may request a change of venue. If the judge approves the request, the place of trial will be moved to another district. A request for a change of_______________ Federal Court Procedures 297 venue is usually based on (a) prejudice in the district of venue so great that the defendant cannot receive a fair or impartial trial, or (b) the

conveni ence of the parties and in the interest of justice to move the place of trial.

To state and local officers, “extradition” involves moving a

defendant between states within the United States to stand trial. In the federal system, extradition is moving a defendant into the United States (or out of the United States) for trial. In other words, federal extradition is not the movement of a defendant between states, but between the United States and another nation. The process is a complicated one involving the Departments of State and Justice.

XVI. The Statute of Limitations and Speedy Trial Act

A. Statute of Limitations

A statute of limitations prohibits prosecution of a defendant after a certain period of time has passed. The statute is designed to protect individuals from having to defend against charges when the facts may have become obscured by time, or defense witnesses may have become unavailable to testify, and to encourage law enforcement officials to promptly investigate suspected criminal activity. If the defendant is indicted or an

information is filed wi thin the statute of limitations, then the prosecution may proceed. If not, then prosecution is barred.

The general statute of limitations requires the government to indict or file an information within five years from the date of

the offense. 18 U.S.C. § 3282. Some crimes have their own statute of limitations. For example, the statute for Title 26 tax crimes is generally six years; arson is 10 years. There is no statute of limitations for a capital offense.

It is helpful to see the statute as a clock. The clock starts, that is, the statute starts to run, the day after the offense

is com pleted. The clock runs until the defendant is indicted or

an information is filed. If at the time of indictment or_______________ Federal Court Procedures 298 info rmation 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 ex ample 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 inf ormation 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 f rom his usual place of abode and intentionally conceals himself for the purpose of avoiding prosecution. Fleeing from justice means the person has left to avoid trial and punishment.

An example of the computation for the general statute of

limitations in a fugitive case:

8/31/2000 Crime committed.

9/1/2000 First day of running of the statute.

10/1/2000

- 9/30/2001 Defendant is a fugitive from justice, and the statute is tolled.

8/31/2006 Last day to secure indictment or

information.

9/1/2006 Pro secution barred, unless indictment

or information obtained._______________ Federal Court Procedures 299 Some offenses are called “continuing offenses” which means that thoug h the crime occurred on a certain day, the statute of limitations does not begin to run until a later date. For example, in a conspiracy case, the statute begins to run on the date of the last overt act even though the agreement may

have occurred earlier. Certain frauds are also continuing offenses. The statute of limitations for mail or wire fraud, for example, begins to run on the date of the last mailing or wire

transmission in furtherance of the scheme to defraud.

B. The Speedy Trial Act: (18 U.S.C. §§ 3161

- 3174)

The Speedy Trial Act establishes time limits for bringing a

defendant to trial after arrest or service of a summons. The statute ensures the timely progression of the case and serves to implement s 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 th e trial. The 100

- day rule has two separate components:

a) An indictment or information must be filed within 30 days of the date of arrest or service of a

summons.

b) The trial must begin within 70 days of the public filing of the indictment or informati on, 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 usua lly 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,_______________ Federal Court Procedures 300 cause the AUSA to try a ca se before it is ready. Therefore, it is critical that you coordinate with the AUSA on the timing of discretionary arrests. If an immediate arrest is necessary to prevent harm, preserve evidence, prevent flight, or take advantage of search incident to arr est rules, notify the AUSA immediately.

XVII. Officers and Presentencing Investigations and Reports

In the federal system fo r 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 wa ive the participation of a jury.

Each district has a U.S. Probation and Pretrial Services

Office. Befor e the sentencing of a defendant, a U.S. Probation

Officer will conduct a Pre

- Sentence Investigation (PSI) that

consists of interv iewing witnesses and reviewing documents. Thereafter, the U.S. Probation Officer will prepare a presentencing report (PSR). The sentencing ju dge will use that report in determining an appropriate sentence. The report may contain a spec ific sentencing recommendation.

At a minimum, the PSR will include the defendant’s history and characteristics, including any prior criminal record,

financial c ondition, and any circumstances affecting the defendant’s behavior that may be helpful in imposing sentence

.

You may be asked to provide certain information to the

U.S. Probation Officer in the form of a witness interview or otherwise. You should comply with these requests. While most of the information for a PSR is available through sources other than you, some may only be available using the investigative file prepared by you. If you have information that would assist the probation officer, make it av ailable, and assist Probation Services to ensure that the report contains complete and

accurate information._______________ Fourth Amendment 301 

## Chapter Nine

Fourth Amendment

I. I NTRODUCTION

................................ ................................ . 305

II. G OVERNMENTAL A CTION

................................ .................... 305

III. A S EARCH

................................ ................................ ....... 306

A. Reasonable Expectation of Privacy (REP)

........................... 306

1. The Test

................................ ................................ ....... 307

2. Common REP Areas

................................ ..................... 308

3. Methods and Devices

................................ ................... 314

IV. A S EIZURE

................................ ................................ ....... 315

A. Police

- citizen Encounters

................................ .................. 316

1

. Voluntary Contacts

................................ ...................... 316

2. Terry Stops

................................ ................................ .. 317

3. Terry Frisks

................................ ................................ . 321

4. Detaining Vehicles

................................ ....................... 323

5. Arrests

................................ ................................ ......... 325

V

. U SE OF R ACE

................................ ................................ ... 326

A. The Constitutional Framework

................................ .......... 326

B. Guidance

................................ ................................ .......... 327

1. Routine or Spontaneous Activities

............................... 327

2. Specific Investigation s

................................ .................. 327

C. Threats to National Security

................................ .............. 329

1. Compelling Government Interest

................................ .. 329

2. Exceptional Circumstances

................................ .......... 330

VI. P ROBABLE C AUSE (PC)

................................ ...................... 331

A. Defining PC

................................ ................................ ....... 331

B. The Test for PC

................................ ................................ . 331

C. Establishing PC

................................ ................................ 332

1. Confidential Informants

................................ ............... 332

VII. T HE E XCLUSIONARY R ULE

................................ .................. 334

A. The Rule

................................ ................................ ........... 334

B. The Exceptions

................................ ................................ . 335

1. No Standing to Object

................................ .................. 335

2. Impeachment

................................ ............................... 335

3. Good Faith

................................ ................................ ... 336

4. Foreign Searches

................................ ......................... 336

5. Inevitable Discovery

................................ ..................... 339

6. Miscellaneous Exceptions

................................ ............ 340_______________ Fourth Amendment 302 VIII. T HE P LAIN V IEW D OCTR INE

................................ ................ 340

A. Lawful Position of Observation

................................ .......... 340

B. Incriminating Nature Immediately Apparent

..................... 341

C. Lawful Right of Access

................................ ...................... 341

IX. A RREST W ARRANTS

................................ .......................... 342

A. Upon Complaint

................................ ................................ 342

B. Upon Indictment or Information

................................ ........ 342

C. The Form

................................ ................................ .......... 343

D. Executing Arrest Warrants

................................ ................ 343

E. Manner of Execution

................................ ......................... 344

F. Warrant Return

................................ ................................ . 344

X. A RRESTS

................................ ................................ ......... 344

A. Authority

................................ ................................ .......... 345

B. On Outstanding Arrest Warrants

................................ ...... 346

1. Outstanding Federal Warrant

................................ ...... 346

2. Outstanding State Warrant

................................ .......... 346

C. Entering a Home

................................ ............................... 347

1. The Suspect’s Home

................................ ..................... 347

2. A Third

- Party’s Home

................................ ................... 348

D. Warrantless Arrests

................................ .......................... 348

1. Felonies

................................ ................................ ....... 348

2. Misdemeanors

................................ ............................. 348

XI. K NOCK AND A NNOUNCE

................................ ..................... 349

A. The Statute

................................ ................................ ....... 350

B. The Primary Purposes

................................ ....................... 350

C. A Breaking

................................ ................................ ........ 350

D. Requirements

................................ ................................ .... 351

1. Knock

................................ ................................ .......... 351

2. Announce Authority and Purpose

................................ 351

3. Admittance Refused or Denied

................................ ..... 351

E. Exigent Circumstances

................................ ..................... 353

F. Violation Does Not Lead to Suppression of Evid ence

......... 354

G. No

- Knock Warrants

................................ ........................... 354

XII. P ROTECTIVE S WEEPS

................................ ........................ 355

A. What is a Protective Sweep?

................................ .............. 355

B. Scope of a Protective Sweep

................................ .............. 355

1. Areas to be Searched

................................ ................... 355

2. Time Limit

................................ ................................ ... 356

C. Two Kinds of Protective Sweeps

................................ ......... 356

1. “Automatic” Protective Sweeps

................................ ..... 356

2. “Extended” Protective Sweeps

................................ ...... 357

D. When Arrest Occurs Outside the Home

............................. 357_______________ Fourth Amendment 303 XIII. S EARCHES I NCIDENT TO A RREST (SIA)

................................ . 357

A. Rationales

................................ ................................ ......... 358

B. Requirements

................................ ................................ .... 358

C. Scope

................................ ................................ ................ 359

1. Arrestee’s Person

................................ ......................... 359

2. Lunging Distance

................................ ......................... 359

3. In a Vehicle

................................ ................................ .. 360

XIV. S EARCH W ARRANTS

................................ .......................... 362

A. Who May Request

................................ ............................. 362

B. Who May Issue

................................ ................................ .. 363

C. Jurisdictional Requirements

................................ ............. 364

D. The Neutral and Detached Requirement

............................ 365

XV. A FFIDAVIT FOR A S EARCH W ARRANT

................................ .... 365

A. Establishing a Nexus

................................ ........................ 366

B. Stale Information

................................ .............................. 367

C. Anticipatory Sea rch Warrants

................................ ........... 367

D. Particularity

- the Place to be Searched

............................. 368

1. Residences

................................ ................................ ... 368

2. Persons

................................ ................................ ........ 369

3. Vehicles

................................ ................................ ....... 369

E. Particularity

- the Persons or Things to be Seized

.............. 369

F. Types of Items That Can Be Seized

................................ .... 370

G. False or Misleading Statements

................................ ......... 371

XVI. T ELEPHONIC S EARC H W ARRANTS

................................ ........ 371

A. Purpose of Rule 41(d)(3)

................................ .................... 372

B. Telephonic Warrants and Exigent Circumstances

............. 372

C. Who can Issue

................................ ................................ .. 372

D. Procedural R equirements

................................ .................. 372

1. The Duplicate Original Warrant

................................ ... 373

2. Read It or Transmit It

................................ .................. 373

3. The Original Warrant

................................ ................... 373

4. Warrants are Signed

................................ .................... 373

5. Enter Time of Execution

................................ .............. 374

E. Recording and Certification Requirements

........................ 374

1. Oath or Affirmation

................................ ...................... 374

2. Verbatim Record

................................ .......................... 374

3. Certification

................................ ................................ . 374

XVII. E XECUTING S EARCH W ARRANTS

................................ .......... 374

A. Who may Execute

................................ ............................. 375

B. When a Search Warrant May Be Executed

........................ 376

C. Use of Force

................................ ................................ ...... 3 77

D. Presenting the Warrant

................................ ..................... 377

E. Answering a Telephone

................................ ..................... 377

F. Temporary Seizure of Handguns

................................ ....... 378_______________ Fourth Amendment 304 G. De taining the Occupants

................................ .................. 378

H. Frisking and Searching the Occupants

............................. 380

I. Permissible Search Locations

................................ ............ 380

1. Premises, Outbuildings and Curtilage

.......................... 381

2. Vehicles on Curtilage

................................ ................... 381

3. Containers

................................ ................................ ... 381

J. Damage or Destruction of Property

................................ ... 382

K. Preparing an Inventory

................................ ...................... 382

L. P roviding a Copy of the Warrant and Inventory

................. 383

M. Warrant Return

................................ ................................ . 383

XVIII. T HE M OBILE C ONVEYANCE E XCEPTION

................................ 383

A. Rationales

................................ ................................ ............ 384

B. P rerequisites

................................ ................................ ........ 384 C. No Exigency Required

................................ .......................... 385 D. The Timing

................................ ................................ .......... 385 E. The Scope

................................ ................................ ............ 386

XIX. E XIGENT C IRCUMSTANCES

................................ ................. 387

A. Hot Pursuit

................................ ................................ .......... 388

B. Destruction or Removal of Evidence

................................ .... 389 C. Emergency Scene

................................ ................................ 390

XX. C ONSENT S EARCHES

................................ ......................... 391 A. Requirements

................................ ................................ ...... 392 1. Voluntary

................................ ................................ ........ 392 2. Actual or Apparent Authority

................................ .......... 394 B. Scope

................................ ................................ .................. 395

C. Third

- Party Consent

................................ ............................ 396

1. Husband

- Wife

................................ ................................ . 396

2. Parent

- Child

................................ ................................ ... 396

3. Roommates

................................ ................................ ..... 397

XXI. I NVENTORY S EARCHES

................................ ...................... 397

A. Justifications

................................ ................................ ....... 398 B. Requirement s

................................ ................................ ...... 398 1. Lawful Impoundment

................................ ...................... 398 2. Standardized Policy

................................ ........................ 398 C. Scope

................................ ................................ .................. 399

D. Location

................................ ................................ .............. 399

XXII. A DMINISTRATI VE S EARCHES

................................ ............... 400 A. Sobriety Checkpoints

................................ ........................... 400 B. Driver’s License and Registration Checkpoints

.................... 400

C. Information

- Gathering Checkpoints

................................ .... 401 D. General Crime Control Checkpoints

................................ .... 401 E. Inspections of Businesses

................................ .................... 401_______________ Fourth Amendment 305 F. Airport Searches

................................ ................................ .. 403 1. Security Checkpoints

................................ ...................... 403

2. Ter ry Stops

................................ ................................ ..... 403

3. Consent

................................ ................................ .......... 404

G. Border Searches

................................ ................................ 404

1. Categories of Intrusions

................................ ............... 405

2. Geographic limits

................................ ......................... 406



## *****

I. Introduction

The Fourth Amendment to the United States

Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable sear ches 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 t wo 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 a nd person(s) or thing(s) to be seized.

II. Governmental Action

The Fourth Amendment regulates the actions of
government officials. The term “government” does not solely refer to law enforcement conduct. Instead, the Fourth Amendment acts as a restraint on the entire government. The Supreme Court has never limited the Fourth Amendment’s prohibition on unreasonable searches and seizures to

ope rations conducted by the police. The Court has held the Fourth Amendment applicable to the activities of civil_______________ Fourth Amendment 306 authorities such as building inspectors, Occupational Safety and Health Act inspectors, firemen entering privately

- owned premises to battle a fi re, and state hospital administrators.

The Fourth Amendment does not regulate private

conduct , regardless of whether that conduct is reasonable or

unreasonable. Evidence of a crime that is obtained through a private search may be admissible against a defendant, even if the private search was conducted illegally.

While the Fourth Amendment may not apply to a search by a private citizen, it does apply when that citizen is acting as an instrument or agent of the government. The issue in such a

search necessarily turns on the degree of the government’s participation in the private party’s activities. That question can only be resolved in light of all the circumstances. In making this determination, the courts typically focus on three factors: (1) Whether the government knows of or acquiesces in the private actor’s conduct; (2) whether the private party intends to assist law enforcement officers at the time of the search; an d (3) whether the government affirmatively encourages, initiates, or instigates the private action.

III. A Fourth Amendment “Search”

The Fourth Amendment prohibits unreasonable

“searches” and unreasonable “seizures.” B ecause of this, you must first understand what exactly a “search” or “seizure” is for purposes of the Fourth Amendment. This section will focus on

the definition of a “search,” while the following section will

discuss the legal definition of a “seizure.”

A. Reasonable Expectation of Privacy (REP)

Under the Fourth Amendment, a “search” occurs when the government intrudes upon an individual’s reasonable expectation of privacy (REP). If the government action does not

intrude upon a person’s REP, then no “search” has occurred and the Fourth Amendment is not implicated._______________ Fourth Amendment 307 1. The Test for REP

In Katz v. United States 1 the Supreme Court established the standard for determining whether REP exists. The test for

REP is two

- pronged:

**•** First, the individual must have exhibited an actual (subjective) expectation of privacy; and

**•** Second, that expectation mu st be one that society is prepared to recognize as reasonable.

The absence of either prong of the test means that no

REP exists and no “search” has been conducted. It is not a “search” to observe conduct that occurs openly in public, such as on a public street. This same principle applies to perceptions made through hearing or smelling. For example, two people who meet and have a conversation in a public place, such as a restaurant, would not be protected from having their actions observed, or their con versations overheard, by others in the restaurant. Any claims of privacy under those

circumstances would be unreasonable.

What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

An individu al who enters a public telephone booth and shuts the door would be entitled to privacy in the conversation. First, by entering the phone booth and shutting the door, the individual has exhibited a subjective expectation of privacy. Second, this expectati on 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 insid e.

O wnership of a given piece of property, while an important factor in determining whether REP exists, does not automatically justify an expectation of privacy.

1 Cases named in this chapter without a case cite are briefed in the companion book, Legal Division Reference Book._______________ Fourth Amendment 308 2. Common REP Areas

Listed below are some of the mor e common REP areas

and situations.

(a) The B ody

Obtaining evidence directly from a person ’ s body will, obviously, require a seizure of that person. Once lawfully seized, such as in an arrest, the issue of REP tur ns 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 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. I t does not constitut e a

“ search ” to obtain fingerprints, handwriting, or voice samples from a lawfully seized suspect. Any of these items, internal or external, can also be obtained from a subject that has not yet

been seized if a search warrant is obtained. Fingerprints le ft behind by the suspect, such as on an interview table, are fair game for law enforcement with no Fourth Amendment issue.

(b) Vehicles

An individual’s expectation of privacy in a vehi cle depends on whether the exterior or interior of the vehicle is being examined. There is no expectation of privacy in the exterior of a vehicle, including the undercarriage. The owner/ operator generally has REP for the interior of a vehicle, at least against physical intrusion. You may lawfully observe an item sitting on the front seat in open view. T his does not necessarily give you the rig ht to access the item se en, 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._______________ Fourth Amendment 309 A passenger in a vehicle that he neither owns nor leases
typ ically does not have REP in that vehicle, although the passenger will retain an expectation of privacy in any personal property brought into the car with them (e.g., a purse or backpack ). Such personal items are subject to a search or frisk

when the same i s 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 t aken different approaches to determining whether that individual has REP in the vehicle. Two federal appellate courts (the Eighth and Ninth Circuits) have held that an unauthorized driver who has the permission of the registered driver to operate the vehi cle has REP. Three federal appellate courts (the Fourth, Fifth , and Tenth Circuits) have reached a different conclusion, looking solely to the rental agreement to determine who has REP in the vehicle. In these courts, an

individual who is authorized to d rive the vehicle will have REP, while any person not listed on the rental agreement does not. Finally, one federal appellate court (the Sixth Circuit) takes a

“fact

- based” approach, examining each situation on a case

- by

case basis.

(c) Homes

An individual has a high expectation of privacy within the confines of his or her home. The Supreme Court has repeatedly emphasized that the warrantless entry and search of a home is the chief evil against which the Fourth Amendment is directed. 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 in the being at th e home. For example, overnight guests of a homeowner are entitled to REP in the

host’s home. A social visitor normally does not have REP in the home visited; but, REP may exist if the person is a frequent

visitor with free access to the home and is auth orized 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_______________ Fourth Amendment 310 the premises, and the lack of any previous connection between respondents and the householder.

The protection afforded to homes has been extended to

cover hotel and motel rooms. No less than a tenant of a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. In determining whether a person had REP in a hotel or motel room, courts typically consider (a) whether the person was the registered occupant of the room; (b) whether the person was sharing the room with another to whom it was actually registered; (c) whether the person ever checked into the room; (d) whether the person paid for the room; and (e) whether the person had th e right to control

or exclude others ’ use of the property. Generally, a perso n’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 tim e. Tenants of hotels, motels, and even apartment and condo buildings, typically have no REP in the common areas of those s tructures (e.g., the stairwells or hallways).

(d) Containers

An individual has REP in his or her containers (e.g., purses, briefcases, backpacks, etc.), at least where those

cont ainers 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

. K now ledge of the contents does not necessarily d estroy the REP altogether; there is still the problem of access, and a warrant may ne ed to be obtained or an arrest
effected first.

A private search t hat opens and examines a container can

eliminate REP. Once a private search occurs, the Fourth Amendment does not prohibit governmental use of the now

non

- private information. In such cases, the Fourth Amendment allows government agents to “ search ” to th e same extent the private person did, without implicating the Fourth Amendment._______________ Fourth Amendment 311 (This rule only applies to containers, not other protected areas).

R EP still exists in those portions of the container that were not subject to the private search. A “search” occurs within the meaning of the Fourth Amendment when you exceed the scope of the private intrusion and go into areas of the container where a person continues to have REP.

(e) Cur tilage

As indicated earlier, There is a high degree of privacy

inside homes . Included within the protections afforded a home are those areas that fall within a home’s “curtilage,” but not those areas of an individual’s property that are considered “open fields.” The term “curtilage” means the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life. C urtilage is considered part of the home itself for Fourth Amendment purposes, and an

individual has REP in the curtilage surrounding a dwelling. “Open fields” include any unoccupied or undeveloped area outside of the curtilage. An “open field” need not be “open” or a

“fi eld,” but could instead be a large tract of thickly wooded area on a person’s property. There is no REP in “open fields.”

In most instanc es the boundaries of a home’s curtilage will be easily defined, especially in a suburban area. In more rural setting s, 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:

**•** Th e proximity of the area claimed to be curtilage to

the home itself , although courts have repeatedly refused to fix a specific distance at which curtilage ends;

**•** Whether the area is included within a single enclosure (natural or artificial) surrounding the home;_______________ Fourth Amendment 312 **•** The use of the area; and

**•** Fourth, 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

surrou nding the dwelling in which the intimate, daily, family

activities occur?

(f) Government W orkplaces 2

In O’Connor v. Ortega the Supreme Court addr essed whether a government employee may establish REP in a government workspace

. G overnment employees can, and often do, establish expectations of privacy in their government offices, filing cabinets, and computers. In determining whether a
government em ployee has REP in his or her workspace, courts have utilized a variety of factors. Among the most important are (1) pr ior notice to the employee, such as through the use of computer banners, that limit REP or state that no REP e xists; (2) common practice s and procedures of the employer; (3) openness and accessibility to the area or item in question; (4) whether the position of the employee requires a special trust and confidence (e.g., a position that has security requirements); and (5) whether the employ ee has waived any REP in the workplace, such as through the collective bargaining process. If an employee does have REP in his or her workplace, an intrusion into that workplace constitute s a “ search ” for purposes of the Fourth Amendment.

S pecial rules h ave been developed for workplace searches that take into consideration a government supervisor’s dual responsibility of ensuring the public’s work is being done while

still protecting a government employee ’ s Constitutional right to

be free from unreasonabl e searches and seizures. E ven whe n a government employee has REP in the workplace, a supervisor may search that space without a warrant while looking for

2 See Chapter Ten for a more extensive discussion of government workplace

searches._______________ Fourth Amendment 3 13 work

- related items, files, or materials. A supervisor who has reasonable suspicion of employee work

- related misconduct

, which may or may not a lso be criminal, is entitled to search the employee ’ s workplace without a warrant in order to determine whether such misconduct is in fact occurring. T he supervisor is limited in scope to searching only those area s 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 exceptio n before a search can occur.

(g) Abandoned Property

There is no REP in abandoned property. Abandonment

occurs when an individual , either through word or deed, indicates an intention to permanently disavow any interest in the item or place. A n 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

su itcase, denies owning it. A n 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. An

individual’s aband onment of certain property may be found involuntary when it is preceded by unlawful police misconduct.

F or the abandonment to be considered involuntary due to police misconduct, there must be a nexus between the misconduct and the abandonment. For example, the abandonment may be found to be involuntary when it was the direct result of an

unlawful seizure.

(h) Garbage

The key to determining whether there is REP in garbage is

the location of the garbage at the time you encounter it. There clearly is REP in garbage located inside a home. However, when garbage is placed on the curb of a public street for final pick

- up by a third

- party (e.g., a trash collector), REP in the garbage no longer ex ists._______________ Fourth Amendment 314 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 garba ge located within the curtilage of a home is protected by the Fourth Amendment. When analyzing these types of situations, courts typically look at the “public access” to the garbage to determine whether it is protected by the Fourth Amendment. Where the trash is readily accessible to the public from the street, a person may not have REP in that trash. In such cases, you may seize the garbage without a warrant even though a technical intrusion onto the curtilage has occurred. Any issue of this

kind shou ld be closely coordinated with the AUSA.

(i) Mail

A person has REP only in the contents of first class and higher mail sent through the U.S. Postal Service. Postal inspection regulations govern i ntrusions into lower class mailings. There is no REP in the outside of a letter or package (e.g., words written on the envelope). There is REP in the contents of letters and packages sent through private carriers

such as AirBorne Express, FedEx, DHL, and UPS.

3. Search Methods and Devices

(a) Canine sniffs

The use of a dog to sniff a container, such as luggage,

locat ed in a public place, does not intrude into REP and is not considered a “search” for purposes of the Fourth Amendment.

(b) Sensory enhancements

The lawfulness of using devices to enhance your senses generally turns upo n (1) the sophistication of the device, and (2) whether the activity that was viewed occurred in public or in private. Binoculars and tel escopes are fairly unsophisticated devices, so using them to observe public conduct does not generally turn a surveillance into a search. However, when_______________ Fourth Amendment 315 these devices are used to observe conduct taking place inside a person’s residence, their use may const itute a “search.” Your

use of flashlights and searchlights for illumination does not

constitute a “ search, ” and you c an point them into a car, barn, or even a detached garage (this issue has yet to be resolved for the living area of a home). Darkness does not create REP that would otherwise not exist in daylight. The use of thermal imaging to detect the heat emanating from inside a residence constitutes a “search,” requiring a warrant or exigent

circumstance.

(c) Aircr aft Overfli ghts

The use of over flights to detect criminal activity is common in law enforcement. When conducting overflights, you may operate in navigable airspace (as determined by FAA regulations) to the same extent as a private person. In such situations, the Fourth Amendment does not require the police traveling in the public airways [at an altitude of 1,000 feet] to
obtain a warrant in order to observe what is visible to the naked eye. Observations of “open fields” from aircraft do not implicate

the Fourth A mendment.

IV. A Fourth Amendment “Seizure”

Not all interactions between law enforcement officers and

citizens amount to a “seizure” under the Fourth Amendment.

S ome encounters are purel y voluntary. Whe n your encounter
with a citizen is completely consensual, the Fourth Amendment does not apply. You need to understand what words and actions on your part may convert a voluntary, consensual

contact into a “ seizure. ” It is also important for you to understand exactly when an individual is “seized” for purposes

of the Fourth Amendment.

A person is “seized” when, based on the totality of the circumstances, including your application of physical force (however slight) or the person’s submission to your show of authority, a reasonable person would not feel free to leave or otherwise terminate the encounter. Property is “seized” when there is some meaningful governmental interference with an individual’s possessory inte rests in that property._______________ Fourth Amendment 316 A. Police

- citizen Encounters

There are three types of police

- citizen encounters: (1) a

consensual encounter ; (2) an in vestigative 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. T he

Fourth Amendment applies only when a “ seizure ” occurs.

1. Consensual Encounters (Voluntary Contacts)

A consensual encounter is a brief, voluntary encounter between law enforcement officers and citizens that requires neither probable cause nor reasonabl e suspicion. An encounter

is consensual if the citizen is entitled to terminate it and leave at any time. A voluntary contact is NOT considered a “seizure.”

When conducting a consensual encounter, you may take any or all of the following actions without turning the contact

into a “ seizure. ” First, you may approach an individual and ask questions, even incriminating questions. Second, you may request, but not demand, to see an individual’s identification. Third, you may identify yourself and display yo ur credentials. And fourth, you may seek consent for a search.

In contrast, there are some actions you might take during an encounter that may change the nature of the contact into a

“ seizure ” at some point. Y our actions during a voluntary contact may b e closely scrutinized by a court to determine whether the encounter became a “seizure.” Among the factors

courts will examine to determine whether a seizure has occurred include: (1) th e time, place, and purpose of the encounter; (2) the words used by you ; (3) language or tone of voice that might indicate compliance with your request is mandatory; (4) the threatening presence of several officers; (5) whether weapons were displayed by the officer(s); (6) any physical touching of the citizen; (7) retention o f the citizen ’ s identification or personal pro perty; and (8) whether the citizen was notified of his right to end the encounter (though this is certainly NOT a requirement for voluntary contacts)._______________ Fourth Amendment 317 2. Investigative Detentions ( Terry Stops)

Prior to 1968, encounters between law enforcement officers and citizens were categorized either as voluntary contacts (with no suspicion necessary) or arrests (which required probable cause). In Terry v. Ohio t he Supreme Court recogniz ed a third type of police

- citizen encounter, known as an investigative detention ( “ Terry stop ”). An “i nvestigative detention” is a brief, investigatory stop when a law enforcement officer has a reasonable, articulable suspicion that criminal activity is afoot.

(a) The Requirements

To conduct an investigative detention of a person, you

must have “ reasonable suspicion ” to believe that criminal activity is afoot. You do not have to be fully convinced that a crime is being committed, or even that you are stopping the right suspect. In allowing investigatory detentions, Terry accepts the risk that officers may stop innocent people. Wh ile “reasonable suspicion” is a lower standard than “probable cause,” you must still have explainable (articulable) reasons to justify a temporary seizure of a person. “Criminal activity is afoot” means that you must reasonably suspect that : (1) a crime is about to be committed; (2) a crime is being committed; or (3)

a crime has been committed

. Some courts have disallowed investigative detentions, however, for misdemeanors that have already been completed , unless some ongoing danger to the public still exists (e.g., recent reckless driving). Also, if no other means exists to identify the subject that committed a

misdemeano r, the detention may still be considered reasonable. Detentions to prevent or stop a misdemeanor from occurring are, of course, permissible with reasonable suspicion. W hen you have reasonable suspicion that a piece of personal property, such as luggag e, contains contraband or evide nce of a crime, you may detain it in the same manner that you may detain a

person.

T o determine whether reasonable suspicion exists, courts

look at the “totality of the circumstances ’ of each case

. You

must be able to articula te facts demonstrating the possibility_______________ Fourth Amendment 318 that the person stopped is connected to criminal activity. Through the use of a “totality of the circumstances” test, you are allowed to draw on your own experience and specialized training to make inferences from and deductions about the cumulative information available to you that might well elude

an untrained person. For example, you may observe conduct

that you believe is “ casing ” a store for a robbery , though it might not seem so to the untrained eye. In such a situation,

your training and experience allows you to determine that reasonable suspicion of criminal activity exists, even though all

of the suspect ’s outward conduct might otherwise appear perfectly innocent.

(b) Means of Establishing Reasonable Suspicion

You may use a variety of different investigative techniques to obtain enough information to establish reasonable suspicion to detain a person. For example, your personal observations may form the basis for reasonable suspicion to conduct an investigative detention. A great deal of deference is given to your personal observations. Additionally, you may establish reasonable suspicion based upon information provided by other law enforcement officers utilizing a concept sometimes referred

to as “collective knowledge.” I nformation from an identified third party, such as a victim or witness, can also provide the facts necessary to jus tify reasonable suspicion. Finally, you may use information provided by informants to establish reasonable suspicion for an investigative detention.

It is not uncommon for an informant or anonymous

sour ce 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 insuff icient, especially when the source’s_______________ Fourth Amendment 319 truthfulness is unknown or the b asis of knowledge is not clear (i.e., how does the source know that the information is true?). In determining whether a tip contains enough verifiable information to establish reasonable suspicion, courts look to and rely upon the following factors: (1 ) the amount of detail provided by the source of the information; (2) whether the source predicted future behavior on the part of the suspect; (3)

whether and to what extent law enforcement officers corroborate the source’s information; (4) whether the information is based upon the source’s first

- hand observations; (5) whether, by providing the information, the source is putting his or her anonymity in jeopardy; (6) whether the information was provided in a face

- to

- face encounter with law enforcement officials; and (7) the timeliness of the source’s report.

R easonable suspicion is a lower standard than probable cause,

both as to the amount of evidence needed as well as its reliability.

(c) Factors Justifying Investigative Detentions

You must be able to explain to a court why you decided to conduct an investigative detention of a suspect (i.e., what you heard or saw that led you to reasonably suspect that criminal activity was afoot). You can utilize a wide variety of factors to justify an investigative detention. Even apparently innocent

conduct ca n, in appropriate instances, jus tify a Terry stop. There could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot. Some common factors you can use to justify investigative

detentions in clude, 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 know ledge of recent criminal conduct;

**•** The time and location of a given situation;_______________ Fourth Amendment 320 **•** 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 ot her factors; and

**•** A suspect’s non

- responsive behavior.

(d) The Duration of an Investigative Detention

The duration of an investigative detention must be reasonable. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop, and the investigative methods employed should be the

least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. There is no “bright

line” time limit for an investigative detention (e.g., twenty minutes). The courts look to whether you diligently and reasonably pursued the investigation to quickly confirm or dispel your suspicions. The amount of force used and the level of restriction placed on movement may also be considered, in addition to the length of the detention. Your Terry stop must be reasonable in time, place, an d manner.

(e) The Use of Force During an Investigative

Detention

Your use of force during an in vestigative detention must be reasonable under the totality of the circumstances. The Supreme Court has long recognized that the right to make an investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat th ereof to affect it. Weapons may be pointed at a suspect or handcuffs used, so long as it is justified. For instance, a subject that will not comply with lawful orders may be handcuffed, or you may point a gun at a suspect believed to be dangerous. Your use of these types of force must be objectively reasonable under the circumstances known to you at the time of the stop. In determining whether the amount of force used during an investigative detention has turned the stop into an arrest,_______________ Fourth Amendment 321 courts consider a number of factors, including: (1) t he number of officers involved; (2) the nature of the crime and whether there is reason to believe the suspect is armed; (3) the strength of your articulable, objective suspicions; (4) the need for your

immediate actio n; and (5) the presence or lack of suspicious behavior or movement by the person under observation.

(f) When Does an Investigative Detention

Become an Arrest?

While an investigative detention requires reasonable suspicion that criminal activity is afoot, an arrest requires probable cause that a crime is being, or has been, committed.

A n investigative detention requiring reasonable suspicion may escalate into an arrest requiring probable cause. In determining whether a de fact o arrest has occurred, courts will consider a variety of different factors, including: (1) th e purpose behind the stop and the nature of the crime; (2) whether you diligently sought to carry out t he purpose behind the detention; (3) the amount of force you used, and the need for such force; (4) the extent to which an individual’s freedom of movement was restrained; (5) the number of agents/officers involved; (6) the duration and intensity of the st op; (7) the time and location of the stop; and (8) the need for your immediate action.

3

. A Terry “ Frisk ”

In Terry the Supreme Court outlined the legal requirements for what has become known as a “ Terry frisk.” If, during an investigative detention, you develop reasonable suspicion that the individual is presently armed and dangerous,

you may co nduct a limited pat

- down search of the individual for weapons. This “ frisk ” is a pat

- down search of a suspect ’ s outer clothing to discover weapons that could be used against you during an investigative stop. You may not utilize a Terry frisk to

look for e vidence of a crime. T o justify a “ frisk, ” you must demonstrate two things: (1) that you had reasonable suspicion to stop the suspect; and (2) that you had reasonable suspicion the suspect was presently armed and dangerous._______________ Fourth Amendment 322 A “ frisk ” is limited search for weapons. It may be conducted even after the suspect has been handcuffed. You may check the outside of the suspect ’ s clothing for any hard objects that could potentially be a weapon concealed underneath. Once a hard object is encountered, you are then

en titled to go inside the clothing and retrieve the item. When dealing with winter clothing, you may reach inside of a heavy jacket and frisk underneath it to avoid missing any weapons. You may also frisk any containers in the suspect ’ s possession.

As wit h investigative detentions, you may establish reasonable suspicion that a suspect is presently armed and dangerous through a variety of different methods, including personal observations, information from other officers, and information

from third

- parties, such as informants.

(a) Factors Used to Justify a Terry “ Frisk ”

The list of factors you may use as justifica tion for a Terry

frisk is extensive . The following are some of the most commonly recognized:

**•** A suspect, through past criminal history or association with violent gangs, has a reputation for being armed and dangerous;

**•** A bulge in a suspect ’ s clothing indi cating the possible presence of a weapon;

**•** A “ furtive ” movement by the suspect ;

**•** A suspect ’ s words and actions, such as refus ing to comply with your directions;

**•** A tip from a reliable informant that the suspect is armed and dangerous

**•** Your reasonable suspi cion that the suspect has committed a crime, such as armed robbery or drug trafficking, that by its very nature indicates the likelihood that the perpetrator is armed and dangerous._______________ Fourth Amendment 323 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 Co urt has already held that you, at least under certain circumstances, may seize contraband detected during the lawful execution of a Terry

search. This has become known as the “plain touch” doctrine.

T he “plain touch” doctrine is nothing more than an expansion of the “plain view” doctrine discussed later in this chapter.

In ord er to lawfully seize evidence under the “ plain touch ” doctrine, you must meet t wo 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 you must have probable cause that the object encountered is contraband or criminal evidence based on what you initially felt. You are not permitted to manipulate soft objects for the purpose of identifying an item.

Minnesota v. Dickerson

. Har d objects, of course, can be retrieved by you as potential weapons, and any evidence or contraband encountered in that process may be seized.

4. Detaining Vehicles

The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of a vehicle. Stopping an automobile and detaining its occupants constitutes

a ‘ seizure ’ within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief. In 2007 the Supreme Court de cided the

case of Brendlin v. California

, holding that a passenger inside a

vehicle is “seized” under the Fourth Amendment when the driver is stopped for a traffic offense. Whether stopping a person

on foot or in a vehicle, the standard is the same. You m ust have, at a minimum, reasonable suspicion that the person_______________ Fourth Amendment 324 stopped is, or is about to be, engaged in criminal activity. You may also conduct a stop if you have r easonable suspicion to believe that a person in the vehicle is wanted for past criminal

cond uct or when you have r easonable suspicion to believe the vehicle is carrying contraband.

(a) Permissible Actions During Vehicle Stops

The Supreme Court has long recognized the very real dangers you face when confronting suspects located in vehicles.

For that reason, when you conduct vehicle stops, you may take

such steps as are reasonably necessary to protect your pe rsonal safety. This would include, among other things:

**•** Removing the driver and passengers from the vehicle;

**•** Orderi ng the driver and passengers to remain in the vehicle;

**•** Using a flashlight to illuminate the interior of the vehicle;

**•** Conducting license and registration checks; and

**•** Questioning the driver regarding his or her travel plans.

(b) A Terry “ Frisk ” of a Vehi cle

In addition to the permissible actions outlined above, you may also be permitted to conduct a “frisk” of the vehicle for

weapons. In Mi chigan v. Long the Supreme Court expanded the scope of a Terry frisk to include vehicles. Long provides that if you have reasonable suspicion to believe that the driver or passenger in a vehicle is dangerous and may gain immediate control of a weapon, you may “frisk” that person, as well as the entire passenger compartment of the vehicle. This “frisk” of the vehicle may include any unlocked containers located in the passenger compartment. Some, but not all, federal appellate_______________ Fourth Amendment 325 courts have extended this rul e to include locked containers such as a locked glove compartment, when an occupant would have immediate access based on availability of the key. You may not “frisk” the trunk of a vehicle.

(c) The Duration of Vehicle Stops

As with a traditional invest igative detention, an investigative detention that occurs in a vehicle must be temporary and last no lo nger than is necessary to effectuate the purpose of the stop. This means that once the citation or warning has been issued, and all records checks have been conducted, the stop must end and the driver must be released. Should the detention continue past this point, you must show that the extension was based either upon the driver’s consent, or because you established reasonable suspicion during the original stop that some additional misconduct was occurring.

Your failure to establish either of these addi tional bases for extending the stop may result in the continued detention being

found unreasonable under the Fourth Amendment.

(d) Pretextual Vehicle Stops

Pretextual traffic stops are permissible. A “pretextual” traffic stop occurs when you use a legal justification (e.g., an

observed traffic violati on) to stop an individual in order to investigate a different, more serious crime for which you have no reasonable suspicion (e.g., drug trafficking). In Whren v.

United States the Supreme Court upheld pretextual traffic stops, noting that the c onstitutionality of a traffic stop does not depend on the actual motivations of the individual

officers involved.

5. Arrests

The third type of “citizen

- police” encounter is an arrest based upon probable cause. This concept is discussed more fully in sections VIII and IX, below._______________ Fourth Amendment 326 V. The Use of Race in Law Enforcement

Your use of race as a factor in the performance of your

duties raises numerous Constitutional concerns. In light of these concerns, in June of 2003 the Department of Justice (DOJ) published a document entitled “ Guidance Regarding the Use of Race By Federal Law Enforcement Agencies.” On June 1, 2004, the Department of Homeland Security (DHS) explicitly adopted the DOJ policy on racial profiling. The following excerpts are taken directly from that document, and provide the standard taught by the FLETC Legal Division. A complete copy of the DOJ policy is included in the Additional Resources

Section.

A. The Constitutional Framework

“[T]he Constitution prohibits selective enforcement of the

law based on considerations such as race.” W hren v. United

States , 517 U.S. 806, 813 (1996). Thus, the decision of federal prosecutors “whether to prosecute may not be based on ‘an unjustifiable standard such as race, religion, or other arbitrary

classification

. ’” United States v. Armstrong , 517 U .S 456, 464 (1996)[ quoting Oyler v. Boles , 368 U.S. 448, 456 (1969)].

The same is true of Federal law enforcement officers. Federal courts repeatedly have held that any general policy of “utiliz[ing] impermissible racial classifications in determining

wh om to stop, detain, and search” would violate the Equal

Protection Clause. Chavez v. Illinois State Police , 251 F.3d 612, 635 (7th Cir. 2001). As the Sixth Circuit has explained, “[i]f law enforcement adopts a policy, employs a practice, or in a given

si tuation takes steps to initiate an investigation of a citizen based solely upon that citizen’s race, without more, then a violation of the Equal Protection Clause has occurred.” United States v. Avery , 137 F.3d 343, 355 (6th Cir. 1997). “A person

cannot become the target of a police investigation solely on the

basis of skin color. Such selective law enforcement is

forbidden.” Id . at 354. The Supreme Court has held that this constitutional prohibition against selective enforcement of the

law based on ra ce “draw[s] on ‘ordinary equal protection_______________ Fourth Amendment 327 standards.’” Armstrong , 517 U.S. at 465 [ quoting Wayte v.

United States , 470 U.S. 598, 608 (1985)]. Impermissible selective enforcement based on race occurs when the challenged policy has “a discriminatory effect and ... was motivated by a discriminatory purpose.” Id . ( quoting Wayte , 470 U.S. at 608). Put simply, “to the extent that race is used as a proxy ” for criminality, “a racial stereotype requiring strict scrutiny is in operation.” Cf

. Bush v. Vera , 517 U.S . 952, 968 (1996 )

.

B. Guidance for Federal Officials Engaged in Law

Enforcement Activities

1. Routine or Spontaneous Activities in Domestic Law Enforcement

In makin g routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race or ethnicity to any degree, except that officers may rely on race and ethnicity in a specific suspect description. This prohibition applies even where the use of race or ethnicity might otherwise be lawful.

2. Law Enforcement Activities Related to Specific Investigations

In conducting activities in connection with a specific investigation , Federal law enforcem ent officers may consider race and ethnicity only to the extent that there is trustworthy information, relevant to the locality or time frame, which links persons of a particular race or ethnicity to an identified criminal incident, scheme, or organization . This standard applies even where the use of race or ethnicity might otherwise by lawful.

Reliance upon generalized stereotypes is abs olutely forbidden. Rather, use of race or ethnicity is permitted only when the officer is pursuing a specific lead concerning the identifying characteristics of persons involved in an identified criminal activity. The rationale underlying this concept car efully limits its reach. In order to qualify as a legitimate investigative lead, the following must be true:_______________ Fourth Amendment 328 **•** The information must be relevant to the locality or time frame of the criminal activity;

**•** The information must be trustworthy;

**•** The information co ncerning identifying characteristics must be tied to the particular criminal incident, a particular criminal scheme, or a particular criminal organization.

This prohibition extends to the use of race

- neutral pretexts as an excuse to target minorities. Fe deral law enforcement may not use such pretexts. This concern arises most frequently when aggressive law enforcement efforts are focused on “high crime areas.” The issue is ultimately one of motivation and evidence; certain seemingly race

- based efforts, if properly supported by reliable, empirical data, are in fact

race

- neutral.

Any information concerning the race of persons who may be involved in specific criminal activities must be relevant to

both time and place. Where the information concerning
pote ntial criminal activity is unreliable or is too generalized and unspecific, use of racial descriptions is prohibited.

These standards contemplate the appropriate use of both “suspect

- specific” and “ incident

- specific ” information . As noted above, where a crime has occurred and authorities have eyewitness accounts including the race, ethnicity, or other distinguishing characteristi cs of the perpetrator, that information may be used. Federal authorities may also use reliable, locally relevant information linking persons of a certain race or ethnicity to a particular incident, unlawful scheme, or ongoing criminal enterprise

- even ab sent a description of any particular individual suspect. In certain cases, the circumstances surrounding an incident or ongoing criminal activity will point strongly to a perpetrator of a certain race, even though authorities lack an eyewitness account. It is critical, however, that there be reliable information that ties persons of a particular description to a specific criminal_______________ Fourth Amendment 329 incident, ongoing criminal activity, or particular criminal organization . Otherwise, any use of race runs the risk of descending into reliance upon prohibited generalized stereotypes. Note that these standards allow the use of reliable identifying information about p lanned future crimes. Where federal authorities receive a credible tip from a reliable informant regarding a planned crime that has not yet occurred, authorities may use this information under the same restrictions applying to information obtained regardi ng a past incident. A prohibition on the use of reliable prospective information would severely hamper law enforcement efforts by essentially compelling authorities to wait for crimes to occur, instead of taking proactive measures to prevent crimes from

h appening.

C. Guidance for Federal Officials Engaged in Law Enforcement Activities Involving Threats to National Security, the Integrity of the Nation ’ s Borders, or Catastrophic Events

In investigating o r preventing threats to national security or other catastrophic events (including the performance of duties related to air transportation security), or in enforcing laws protecting the integrity of the N ation ’ s borders, Federal law enforcement officers may not consider race or ethnicity except

to the extent permitted by the Constitution and laws of the

United States.

1. Compelling Governmental Interest

Since the terrorist attacks on September 11, 2001, the President has emphasized that federal law enforcement personnel must use every legitimate tool to prevent future attacks, protect our Nation’s borders, and deter those who would cause devastating harm to our Nation and its people through the use of biological or chemical weapons, other weapons of mass destruction, suicide hijackings, or any other means. “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee , 453 U.S. 280, 307 (1981)[ quoting Aptheker v. Secretary of State , 3 78 U.S. 500, 509 (1964)]._______________ Fourth Amendment 330 2. Exceptional Circumstances Are Required

The Constitution prohibits consideration of race or ethnicity in law enforcement decisions in all but the most exceptional instances. Giv en the incalculably high stakes involved in such investigations, however, Federal law enforcement officers who are protecting national security or preventing catastrophic events (as well as airport security screeners) may consider race, ethnicity, and othe r relevant factors to the extent permitted by our laws and the Constitution. Similarly, because enforcement of the laws protecting the Nation’s borders may necessarily involve a consideration of a person’s alienage in certain circumstances,

the use of race or ethnicity in such circumstances is properly governed by existing statutory and constitutional standards. See, e.g., United States v. Brignoni

- Ponce , 422 U.S. 873, 886

- 87 (1975). This policy will honor the rule of law and promote vigorous protection o f our national security. As the Supreme Court has stated, all racial classifications by a governmental actor are subject to the “strictest judicial scrutiny.” Adarand
Constructors, Inc. v. Peña , 515 U.S. 200, 224

- 25 (1995). The application of strict scru tiny is of necessity a fact

- intensive

process

. Id

. at 236. Thus, the legality of particular,

race

- sensitive actions taken by Federal law enforcement officials in the context of national security and border integrity will depend to a large extent on the ci rcumstances at hand. In absolutely no event, however, may Federal officials assert a national security or border integrity rationale as a mere pretext

for invidious discrimination. Indeed, the very purpose of the strict scrutiny test is to “smoke out” il legitimate use of race,

Adarand , 515 U.S. at 226 [ quoting Richmond v. J.A. Croson Co.

, 488 U.S. 469, 493 (1989)], and law enforcement strategies not actually premised on bona fide N ation ’ s national security or border integrity interests therefore will not stand. In sum, constitutional provisions limi ting government action on the

basis of race are wide

- ranging and provide substantial protections at every step of the investigative and judicial

process._______________ Fourth Amendment 331 VI. Probable Cause (PC)

The Fou rth Amendment provides that “no Warrant shall issue but upon probable cause ....” In cases in which the Fourth Amendment requires that a warrant to search be obtained, “probable cause” is the standard by which a particular decision to search is tested again st the constitutional

mandate of reasonableness. Probable cause is also required before you may arrest someone for a criminal violation.

A. Defining Probable Cause

Articulating precisely what “probable cause” means is not possible. Probable cause is a fluid concept

- turning on the assessment of probabilities in particular factual contexts

- not readily, or even usefully, reduced to a neat set of leg al 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 man in believing that the suspect had committed or

was committin g an offense.

B. The Test for Probable Cause

Courts use a “totality of the circumstances” test to determine whether probable cause exists. This means that all

f acts known to you are considered. The focus in determining probable cause is not on the certainty that a crime was committed, but on the likelihood of it. Your determination of probable cause will be affirmed if a reasonable argument can be made, based i n fact, that the suspect committed a specific crime, or that evidence will be found in the place to be

searched._______________ Fourth Amendment 332 C. Establishing Probable Cause

You may establish probable cause in any number of different ways. Perhaps the easiest way is through your direct

observations. You may also use your sense of smell, such as when you smell the odor of marijuana emanating from a vehicle. Further, probable cause may be established by the “collective knowledge” of many law enforcement officers, each of whom has some fact available that, when taken in sum,

establishes the existence of probable cause. You may rely on your training and experience in making a probable cause decision so long as there are sufficient additional facts to support it. You may also use non

- human sources, such as a trained, drug

- sniffing dog, to establish probable cause. Information provided solely by victims and/or witnesses can be sufficient to establish probable c ause, given a proper basis of knowledge, when there is no evidence indicating that either the information or the victim/witness is not credible. Probable cause may be established through information provided by a confidential informant or anonymous source

. W h e n a confidential informant or anonymous source is the source of the information, however, certain issues must be considered.

1. Using Confidential Informants to Establish

Probable Cause

The use of confidential informants in criminal investigations is fairly routine. However, the use of this particular investigative tool can raise concerns regarding the

informant ’ s veracity a nd reliability. In Aguilar v. Texas the Supreme Court outlined a two

- prong test for determining whether information prov ided by a confidential informant establishes probable cause. The two prongs of the “ Aguilar

Test ” are : (1) the credibility of the informant, and (2) the

informant ’ s basis of knowledge.

(a) Credibility of the Informant

When you use a confidential informant to establish prob able cause, you must establish that the informant is_______________ Fourth Amendment 333 credible (worthy of belief)

. You can establish the credibility of a confidential informant in a variety of ways.

**•** Proven Track Record. The informant has a track record of supplying reliable information in the past.

**•** Statements Against Interest. When a confidential informant makes statements that are against his penal interest, ( it gets him in trouble, too ) the information is more likely to be reliable. People do not lightly admit a crime and place critical evidence in the hands of the police in the f orm 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 corroborat ion of some information provided by a confidential informant

increases the likelihood that other information provided is accurate.

**•** First

- Hand Information. The personal observations of a confidential informant are more likely to be

credible.

**•** Face

- to

- Face Meetings with the Informant. A face

- to

face encounter allows a personal assess ment 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 like ly the informant has accurate knowledge of the information provided._______________ Fourth Amendment 334 (b) Basis of Knowledge

In addition to establishing the confidential informant’s credibility, you must also establish that the informant has a

sufficient basis of knowledge. The “basis of knowledge” prong requires the government to provide sufficient information to

show the informant knows the following:

**•** Who is involved in the criminal activity;

**•** What criminal activity is taking place;

**•** Where the criminal activity occurred or is occurring;

**•** When the criminal activity occurred; and

**•** How the informant became aware of this

information.

(c) The Effect of Gates on Aguilar

In Illinois v. Gates the Supreme Court rejected the two

part Aguilar t est (outlined above) as hyper

- technical and divorced from the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Instead, the Court adopted a “ totality of the

circumstances ” approach to determining probable cause. Even though Gates replaced Aguilar ’ s two

- prong test, the Supreme

Court has continued to emphasize that a confidential

informant ’ s credibility and basis of knowledge are important factors in determining whether probable cause exists.

VII. The Exclusionary Rule

A. The Rule

The Fourth Amendment does not by its own terms require

that evidence obtained in violation of its mandat es be suppressed. Instead, the “ exclusionary rule ” was developed by_______________ Fourth Amendment 335 the Supreme Court. Evidence obtained as a resul t of an unlawful search and/or seizure is inadmissible in criminal

tri als. The exclusionary rule is intended to deter police misconduct by creating negative consequences for disregarding the Fourth Amendment requirements. However, the exclusionary rule has never been held to prohibit the

introduction of illegally seized ev idence in every situation, and courts have developed a number of exceptions to the general

rule.

B. The Exceptions

1. N o 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 expe ctation 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.

2. Impeachment

The Supreme Court has repeatedly held that when defendants testify, they must testify truthfully or suffer the consequences. When a defendant takes the witness stand and testifies falsely, the government may cross

- examine the defendant and impeach him with evidence that was obtained in violation of the Fourth Amendment. Under the impeachment exception, illegally obtained evidence may be used to impeach (1) any t estimony given by a defendant on direct examination, (2) or a defendant’s statements made in response to proper

cross

- examination.

If the defendant testifies, evidence seized illegally from the defendant may be used to impeach defense witnesses as well as the defendant. The Supreme Court has declined, however, to expand this exception to allow impeachment of other defense witnesses with evidence seized illegally from the defendant when the defendant does not testify._______________ Fourth Amendment 336 3. Good Faith

In United States v. Leon the Supreme Court established a

“ good faith ” exception to the exclusionary rule. Evidence seized by you in “good faith” reli ance on a warrant issued by a neutral and detached judge based upon what is reasonably believed to be probable cause will be admissible even if a court later concludes that no probable cause existed.

The adoption of a “good faith” exception is based on th ree 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

ex tent that suppression of evidence is necessary; and (3) application of the exclusionary rule will not have a significant deterrent effect on magistrates or judges.

The “good faith” exception will not apply when (1) the

affiant misleads the issuing judge by including information in

the affidavit that was known to be false or for which the affiant had a reckless disregard for the truth; (2) the judge issuing the

warrant has abandoned t h e “ 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 t o particularly describe the place to be searched or things to be seized.

4. Foreign Searches

Neither the Fo urth 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 gove rnment; (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._______________ Fourth Amendment 337 (a) Searches by Foreign Authorities

The exclusionary rule does not require the suppression of evidence seized by foreign officials during a search, even when the target of that search is an American citizen, unless:

**•** The conduct of the foreign officials would “shock the judicial conscience.” Pursuant to its inherent supervisory powers, as well as the Due Process Clause, a Federal court may suppress any foreign search evidence obtained by methods that “shock

the conscience.”

**•** When United States law enforcement agents or officers substantially participate in the foreign search or seizure, or the fore ign officials are being used as agents of the United States. In situations

where law enforcement officers of the United States engage in a “joint venture” with foreign officials, the protections of the Fourth Amendment will apply, and application of the e xclusionary 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 “join t venture,” nor will simply providing information to a foreign official.

(b) Foreign Searches of Non

- Resident Aliens By

American Law Enforcement Officers

In United States v. Verdugo

- Urquidez the Supreme Court

addressed the issue of whether the Fourth Ame ndment 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

p rotect the people of the United States against arbitrary action by their own Government; it was never suggested that the_______________ Fourth Amendment 338 provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory. The Co urt noted, however, that aliens do receive constitutional protections when they have come within the territory of the United States and developed substantial connections with the country. Once an alien lawfully enters and resides in this country he become s invested with the rights guaranteed by the Constitution to all people within our borders. When the alien was lawfully, albeit involuntarily, brought to this country, the presence is not of the sort to indicate any substantial connection with our country

.

Although the Fourth Amendment does not apply to foreign searches of the property of a non

- resident alien, controls exist over the investigative activities of American agents operating in foreign countries. Besides the obligations imposed by the host cou ntries 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 Uni ted States has entered into agreements and treaties with other countries which provide for mutual legal assistance and establish procedures for obtaining evidence in criminal investigations abroad. The Office of International Affairs, (202) 514

- 0000, provi des advice and assistance regarding the requirements for these agreements, and maintains a current list of mutual legal assistance agreements and treaties. This list is on the DOJNET at http://10.173.2.12/criminal/oia/MLAT.html

.

(c) Searches of United S tates Citizens and Resident Aliens in Foreign Countries

The Fourth Amendment applies to searches and seizures against United States citizens and resident aliens while abroad when conducted by, on behalf of, or jointly with the United_______________ Fourth Amendment 339 States Government. T he 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 Unit ed States Government; and (3) when the search is a “joint venture” between the United States and foreign officials.

Foreign searches raise privacy issues that do not always

have clear solutions. Rule 41 of the Federal Rules of Criminal

Procedure does not authorize a Federal judge to issue a search

warrant for a location outside the United States. In fact, even if such a warrant were issued, it would be a dead letter outside the United States. Even when no warrant is required, American agents must articu late specific facts giving them probable cause to undertake a search or seizure if they wished to comply with the Fourth Amendment. Any search that is conducted must also meet the reasonableness requirements of the Fourth

Amendment.

While American law go verns whether illegally obtained

evidence should be suppressed under the exclusionary rule, any analysis of the reasonableness of a foreign search will generally include a review of local, foreign law on the subject.

At least two Federal courts have decid ed that compliance with the law of the foreign nation in which the search occurred is not dispositive on the issue of a search’s reasonableness, but is a

factor to be considered. Th e Ninth Circuit has determined that compliance with foreign law alone det ermines whether the

search violated the Fourth Amendment.

5. Inevitable Discovery

Evidence shou ld be admitted if the prosecution can establish by a preponderance of the evidence that it ultimately or inevitably would have been discovered by lawful means

because the “ exclusionary rule ’s” deterrence rationale has so

little basis. This has become know n 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_______________ Fourth Amendment 340 investigation at the time the constitutional violation occ urred. 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

tha t the “inevitable discovery” exception applies whenever an independent investigation inevitably would have led to discovery of the evidence, whether or not the investigation was ongoing at the time of the illegal police conduct.

6. Miscellaneous Exceptions

In addition to the exceptions to the exclusionary rule outlined above, there are a variety of miscellaneous exceptions that may have applicability in a gi ven case. T he exclusionary rule does not apply to deportation proceedings, grand jury proceedings, sentencing proceedings, civil tax proceedings.

V III. The “Plain View” Doctrine

The plain view doctrine allows officers to seize evidence they discover while in a public place or lawfully inside an REP

protected area. There are three requirements you must meet for a permissible plain vi ew seizure of evidence. First, you must lawfully be in a position to observe the item; second, the incriminating nature of the item must be immediately apparent; and third, you must have a lawful right of access to the object

itself.

A. Lawful Position of Observation

The first requirement of any plain view seizure is that you

must have a lawful reason to be in the location from which you

observed the item. A law ful reason to be in a dwelling would be a warrant, consent, or an exigent circumstance. If you conduct a lawful protective sweep while serving an arrest warrant and

find a sawed

- off shotgun in a bedroom closet, you may seize that evidence under the plain view doctrine. If you are exceeding the lawful scope of a protective sweep by opening the medicine cabinet, however, any evidence you see inside the medicine cabinet would fall outside the plain view doctrine._______________ Fourth Amendment 341 B. The Incriminating Nature of the Item Mus t Be Immediately Apparent

Second, not only must the item be seen from a place you have a legal right to be, but its incriminating character m ust also be immediately apparent. This means you must have probable cause to believe that the object is contraband or evidence of a crime. If you must conduct some further search of the object before you can establish probable cause to believe

that it is contraband, then its incriminating character is not immediately apparent and the plain

- view doctrine cannot justify its seizure. The standard is not high, and a plain view seizure is presumptively reasonable, provided there is probable cause to

associate the property with criminal activity.

In determining whether an item’s incriminating nature is immediately apparent, courts will examine factors such as: (1) the nexus between the seized object and the items particularized in a search warrant; (2) whether the intrinsic nature or appearance of the seized object gives probable cause to associate it with criminal activity; and (3) whether probable cause is the direct result of the executing officer’s instantaneous sensory perceptions.

C. Lawful Right of Acce ss

Finally, even if you can see the object from a place where you are lawfully present, you may not seize it unless you have a lawful right of access to the object it self. Your personal observations may convince you that there is criminal evidence inside a premises. But even when the evidence is contraband, the basic rule is that you may not enter and seize it without a warrant, consent, or exigent circumstances.

Fo r example, you may stand on the public sidewalk and see a marijuana plant growing inside someone’s living room. Without additional facts, however, you may not yet enter the residence and seize the plant. You have no lawful right of access to the living r oom where the plant is located. If the resident were to grant you consent to enter, however, or if the resident saw you through the window and began destroying the_______________ Fourth Amendment 342 plant, you could lawfully enter the house and access the evidence. Remember, the plain vie w doctrine is not a tool that allows you to search for evidence, but only to seize it if you meet

the rule’s criteria.

I X

. 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 3

.

A. Arrest Warrant Upon Complaint

Rule 4 addresses the issuance of federal arrest warrants based upon a complaint. Subsection (a) of the rule provides that “if the complaint or one or more affidavits filed wit h 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

st atement of the essential facts constituting the offense charged. It must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial

officer.”

B. Arrest Warrant Upon Indictment or Information

Rule 9 addresses the issuance of federal arrest warrants based upon an indictment or information. Subsection (a) of the rule provides that “the court must issue a warrant

- or at the government’s request, a summons

- for each defendant named

in an indictment or named in an information if one or more affidavits accompanying the information establish probable

cause to believe that an offense has been committed and that

3 Th ese Rule s can be found in its entirety in the compani on book, Legal Division Reference Book , in the segment entitled “Selected Federal Rules of

Criminal Procedure.”_______________ Fourth Amendment 343 the de fendant committed it.” An information is similar to a criminal complaint except that an Assistant U.S. Attorney (AUSA) prepares it. An information is used to charge misdemeanor offenses. An indictment is the result of a grand jury decision that there is probable cause to believe that a crime was committed and the defendant committed it. In order to try a defendant for a felony, the government must usually obtain

an indictment.

C. The Form of a Federal Arrest Warrant

A federal arrest warrant must contain the following:

**•** Signature of the Judge . The warrant must be “signed by the magistrate judge” or by w hatever 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 indic tment or information.”

**•** Command to Arrest . The warrant must “command that the defendant be arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.”

D. Technic al Aspects of Executing Arrest Warrants

Rule 4(c) describes the ma nner in which arrest warrants based upon a complaint must be executed._______________ Fourth Amendment 344 **•** 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 arre st warrant “may be executed ... within the jurisdiction of the United States or anywhere else a federal statute authorizes

an arrest.”

**•** Time Limits . Unlike a search warrant, there is typically no timeframe in which an arrest warrant is required to be execut ed.

E. Manner of Execution

A warrant is executed by your arrest of the defendant. “Upon arrest, an officer possessing the warrant must show it to the defendant.” There is no requirement, however, that you have the warrant present at the time of the arrest. “If the officer does not possess the warrant, the officer must info rm the defendant of the warrant’s existence and of the offense charged and, at the defendant’s request, must show the warrant to the defendant as soon as possible.”

F. Return of the Arrest Warrant

Both Rule 4 and Rul e 9 provide for a return of the arrest warrant. When you arrest someone on a warrant issued upon a complaint, indictment, or in formation, you must return it to the judge before whom the defendant is brought for the Initial Appearance. At the request of an attorney for the government, an unexecuted warrant must be brought back to and canceled by a magistrate judge or, if none is re asonably available, by a state or local judicial officer.

X. Arrests

A warrant is not always required for an arrest to be lawful. However, when an individual is arrested, both statutory

and Constitutional requirements must be satisfied. The three_______________ Fourth Amendment 345 requirements for a lawful arrest are (1) probable cause, (2) arrest authority, and (3) a lawful right of access to the suspect.

A. Arrest A uthority

In the federal system, the authority to make arrests varies from agency to agency. The scope of your arrest authority is established by statute. You must know the extent of your authority granted by these statute s. For some, authority and jurisdiction are limited to certain geographical areas; for others, authority is limited to certain subject matter. For example, a

United States Park Police officer can enforce almost all Federal laws, but only within specific physical boundaries. On the other hand, an Internal Revenue Service agent may enforce only internal revenue laws, but may do so anywhere within the jurisdiction of the United States. You may not make an arrest just because a federal crime has been commit ted, but may do so only if you have the statutory authority to arrest for that specific crime.

Your authority to make arrests comes from three different

sources.

**•** Statutory Auth ority . Most Federal law enforcement officers have statutory grants of authority provided to them by Congress (known as “agency enabling statutes”). For example, 8 U.S.C. § 3056 outlines the arrest authority for officers and agents of the

United States Se cret Service. 22 U.S.C. § 2709 provides the arrest authority for special agents of the Department of State.

**•** Peace Officer Status . You may, in c ertain states,

make arrests for violations of state law. This is typically referred to as “peace officer” status. State law determines whether you have such authority, which may then be restricted by your agency policy.

**•** Citizen’s Arrest Authority . Numerous states still

have what is referred to as “citizen’s arrest” authority, which allows a citizen with probable_______________ Fourth Amendment 346 cause of a felony to make an arrest for that crime. Your reliance upon “citizen’s arrest” authority

should be rare.

B. Arrests Based on Outstanding Arrest Warrants

In the course of your duty, you may discover the

exi stence of an arrest warrant for a person with whom you are in contact. You typically learn of the existence of the warrant through an identity check run with the Treasury Enforcement Communications System (TECS) or National Crime Information Center (NCIC) . Your actions upon discovery of the warrant typically are determined by whether the warrant was issued by

Federal or State authorities.

1. Outstanding Federal Warrant s

Authority to arrest is limited to your statutory authority. Verify that the warrant is still valid, and that the person

arrested is the i ndividual specified on the warrant. If you encounter a person with an outstanding Federal warrant for a crime which is outside the scope of your statutory arrest authority, detain the individual until an officer with the proper authority can make the arre st.

2. Outstanding State Warrant

No Federal statute authorize s you to arrest someone on an outstanding state warrant. Such arrests might be made with state peace officer authority, depending on the law of the state in which the arrest is made. In these types of situations, the best practice is to contact local pol ice to determine if the requesting state wants the suspect detained and, if so, detain the person for a reasonable period until state or local police

officers can make the arrest.

The discovery of a person with a pending state arrest warrant may indicate a violation of Federal law. For example, 18 U.S.C. § 1073 prohibits persons from traveling in interstate commerce with the intent to avoid prosecution or to avoid giving testimony in any felony criminal proceeding._______________ Fourth Amendment 34 7 C. Right of Access: Entering a Home to Make An Arrest

The “physical entry of the h ome is the chief evil against which the wording of the Fourth Amendment is directed.”

Welsh v. Wisconsin . For that reason, entering a home to arrest a person without a warrant is typically a violation of the Fourth Amendment, regardless of whether you ha ve probable cause to arrest the suspect. In order to lawfully enter a person’s home to make an arrest, you must have: (1) a warrant; (2) consent; or (3) an exigent circumstance.

1. Entering the Suspect’s Home to Make an

Arrest

“[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within .” Payton v. New

York (emphasis added). In essence, this means that you must have: (1) a reason able belief that the suspect lives at the home to be entered, and (2) a reasonable belief that the suspect is currently present in the home.

In determining whether a suspect is present in the home prior to executing the arrest warrant, courts look to the totality of the circumstances known to you at the time of the entry. In deciding this issue, courts typically consider several factors, including:

**•** Any surveillance information indicating the suspect is in the home, although the actual viewing of the

susp ect 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);_______________ Fourth Amendment 348 **•** Observation of lights or other electrical devices, such as televisions or stereos;

**•** The circumstances of a suspect’s employment, which may indicate when he is likely to be at his home;

**•** Information from third parties (e.g., confidential informants or neighbors) indicating the suspect is present in the home.

2. Entering a Third

- Party’s Home to Make An

Arrest

An arrest warrant does n ot allow you to lawfully enter a home where the target does not reside to make the arrest. Instead, you must have: (1) a search warrant; (2) the consent of

the third

- party homeowner/occupier; or (3) an exigent

circumstance. Steagald v. United States

.

D. Warrantless Arrests

The legality of a warrantless arrest depends on whether the crime is a felony or a misdemeanor, and wh ether the suspect is in a public or private area.

1. Felonies

When you have probable cause to believe that a suspect located in a public place has committed a felony offense, you may make a warrantless arrest of that person. This presumes, of course, that you are authorized by statute or otherwise to do so. If the person for whom you have probable cause is loc ated inside a residence, you must have consent or an exigent

circumstance to enter the residence to make an arrest without a

warrant.

2. Misdemeanors

If you have probable cause to believe that an individual has committed a misdemeanor offense in your presence, you_______________ Fourth Amendment 349 may, without violating the Fourth Amendment, arrest the

offender. You have probab le cause to believe a misdemeanor is taking place “in your presence” when the facts and circumstances as observed by you through your senses are

sufficient to warrant an officer of reasonable caution to believe that an offense is occurring.

Neither the C onstitution nor the Supreme Court has ever mandated that a misdemeanor crime occur “in your presence” for an arrest to be authorized. However, the “in the presence” requirement has been incorporated into the vast majority of statutes that provide federal law enforcement officers with arrest authority. If the misdemeanor crime does not occur in your presence, a warrantless arrest is typically not statutorily

authorized.

As with a felony, lawful entry into a person’s home to

make a warrantless arrest for a misdemeanor requires either consent or an exigent circumstance. 4

X I

. Title 18 U.S.C. § 3109 5 (The “Knock and Announce” Statute)

Title 18 U .S.C. § 3109 imposes a “knock and announce” requirement upon federal law enforcement officers when executing warrants in dwellings. Although the Fourth Amendment does not specifically require such an action, the Supreme Court has held the “knock and announce” statute to be part of the Fourth Amendment’s reasonableness requirement. The statute requires that before you execute a search or arrest warrant in a residence, you must first announce your authority and pu rpose. You may force your way into the residence only when you have been refused or denied

4 The exigent circumstance of “hot pursuit,” discussed in section XIX.A., is only available when pursuing a suspect who is believed to have co mmitted a “serious crime.” While some misdemeanors may qualify, the hot pursuit exigency is most often limited to use in felony pursuits.

5 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment enti tled “Selected Federal Statutes.”_______________ Fourth Amendment 350 admittance, or when exigent circumstances would make an

announcement unreasonable.

A. The Statute

Titled “Breaking Doors or Windows for Entry or Exit,” the statute provides as follows:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if,

a fter notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of

the warrant.

The plain language of the statute appears to limit its application to the execution of search warrants. But, case law has made the statute equally applicable to the execution of

arrest warrants.

B. The Primary Purposes of the Statute

The requirement to “knock and ann ounce” has three primary purposes: (1) to reduce the potential for violence to both the officers and the occupants of the house; (2) to prevent, or at least reduce, the needless destruction of private property; and (3) to recognize an individual’s right of privacy in his house.

C. A “Breaking” Under the Statute

Although the phrase “break open” implies some use of force, force is not an indispensable element of a violation of § 3109 . S ection 3109 basically prohibits an unannounced intrusion into a dwelling. “Break open” includes:

**•** Breaking down a door;

**•** Forcing open a chain lock on a partially open door;

**•** Opening a locked door by use of a passkey; or_______________ Fourth Amendment 351 **•** Opening a closed but unlocked door.

D. Requirements Under the Statute

Under the knock and announce statute, three requirements must be met before you may lawfully use force to “break open” some part of a house when executing a search or

arrest warrant.

1. You Must First “Knock”

Section 3109 actually contains no explicit “knock” requirement, and instead only requires you to give notice of your “authority and purpose.” Nevertheless, the pra ctice of physically knocking on the door is preferred by Federal courts. An actual physical knocking is only one manner in which you can give notice of your presence. Other methods include placing a phone call to the residence, utilizing a bullhorn, or ut ilizing a police loudspeaker or public address system.

2. Announcement of Authority and Purpose

In addition to providing notice, § 3109 requires that y ou announce your authority and purpose for being there. No special words are necessary to satisfy this requirement. Announcing the title of your agency, such as “Office of the Inspector General,” is overly complex and difficult for people to

understand. Instead, simply announce, “Police with an arrest (or search) warrant, open the door!” The focus of the “knock and announce” rule is not on what magic words are spoken by the police, or whether the police rang the doorbell, but rather on

how the words and other actions of the police will be perceived by the occupant. The proper trigger point, therefore, is when those inside should have been alerted that the police wanted
entry to execute a warrant.

3. You Must Be Refused o r Denied Admittance

The final requirement under § 3109 is that you be refused or denied admittance. Once you have been refused or denied admittance, you can use force to “break” into the residence and_______________ Fourth Amendment 352 e xecute the warrant. While the refusal or denial of admittance is sometimes done explicitly, more often it is inferred from the

circumstances. Some of the most common circumstances indicating a refusal of admittance are:

**•** Silence . A refusal to comply with an officer’s order to “open up” can be inferred from silence. This is only true in situations where a “reasonable” period of time has passed after your command. Unfortunately, neither the Supreme Court nor any other Federal court has come up with a definitive timeframe that you must wait before entering a residence after knocking and announcing. Instead, rulings on what constitutes a “reasonable” amount of time are very fact intensive, with every situation

hav ing to be considered on a case

- by

- case basis. The facts known to you are what count in judging reasonable waiting times for purposes of § 3109. Factors that courts have considered in making this determination include: (1) the time of day; (2) the

size a nd physical layout of the residence; (3) the

nature of the crime at which the warrant is directed; (4) any evidence indicating guilt of the suspect; (5) and any other observations supporting a forced entry, such as defensive measures taken by the residents of the premises.

**•** Sounds of Flight by the Occupants.

**•** Sounds of Evidence Being Destroyed . For example, the sounds of a toilet flushing.

**•** The Nature of the E vidence Sought. How quickly could the occupants destroy the items you’re looking for?

**•** Verbal Refusal . For example, the occupant yells “go away!”

**•** Gunfire From I nside the Residence

._______________ Fourth Amendment 353 E. Exigent Circumstances and the Statute

The Fourth Amendment does not require that you comply with § 3109 in all instances prior to using force to enter a residence. Instead, the statute has an “exigent circumstances” exception, which allows you to dispense with the knock and announce requirement in certain situations. To lawfully use

force to en ter a residence without complying with “knock and announce” requirements, you must have a reasonable suspicion, under the particular circumstances, that knocking and announcing your presence would be dangerous or futile, or

that it would inhibit the effect ive 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 “use less gesture” when the suspect is already aware of a law enforcement presence.

**•** Hot Pursuit. You are not required pause at the front door of a residence to “knock and announce” your presence whe n you are in “hot pursuit” of a
suspect.

**•** Ruses or Decoys. I n the detection of many types of crime, the Government is entitled to use decoys and

conceal the id entity of its agents. For that reason, an entry obtained without force by ruse or deception is not a violation of section 3109. I f an attempted entry by ruse fails, the knock

- and

-_______________ Fourth Amendment 354 announce rule continues to apply to a later forcible
entry.

F. Ordinary Vio lations of the Statute Do Not Lead to Suppression of Evidence

The common law principle that law enforcement officers must announce their presence and provide residents an opportunit y to open the door is an ancient one and a command

of the Fourth Amendment. Hudson v. Michigan . Not every Fourth Amendment violation, however, triggers the exclusionary rule. Ordinary violations of knock and announce alone will not result in the application of the exclusionary rule, because officers with a warrant inevitably would have entered the residence and discovered the evidence inside. Suppression of that evidence, therefore, would have a high societal cost and little deterrent effect. Of course, it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry. You are still required to comply

with the § 3109, and you remain susceptible to civil liability and administrative discipline for violations.

G. “No

- Knock” Warrants

In the right circumstances, you may request a “no

- kn ock” warrant, which allows you to dispense with the requirements to knock and announce before entry. “The practice of allowing magistrates to issue no

- knock warrants seems entirely

reasonable when sufficient cause to do so can be demonstrated

ahead of tim e.” Richards v. Wisconsin . When you anticipate exigent circumstances before searching, ask for pre

- search judicial approval to enter without knocking. The issuance of a warrant with a no knock provision potentially insulates you against the subsequent f inding that exigent circumstances did

not exist.

The facts that justify a no

- knock warrant are the same you would need to justify an on

- site decision to dispense with

the knock

- and

- announce requirement. There should be reasonable grounds that an exigency exists or will arise_______________ Fourth Amendment 355 instantly upon knocking, or that knocking would be futile. A judge’s decision to refuse authorization of a no

- knock entry does not preclude you, when executing a warrant, from concluding that it would be reasonable to enter without

k nocking and announcing. You may still make that decision at

the scene.

When you obtain a no

- knock warrant, you do not have to reaffirm the circumstances when you get to the scene. You cannot, however, disregard reliable information clearly negating

the existence of exigent circumstances when you actually

receive such information before the execution of the warrant. Under such circumstances, you are required to reevaluate your plan to forcibly enter without knocking and announcing.

X I I. Protective Sweep s

A. What is a “Protective Sweep?”

A “protective sweep” is a quick and limited search of a

pr emises incident to an arrest, which is conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.

B. Scope of a Pr otective Sweep

1. Areas to be Searched

A “protective sweep” is not a full search of a dwelling. You may only “sweep” those spaces where an individual might be found. For example, a search inside a medicine cabinet is outside the scope of a permissible protective sweep because persons could not reasonably hide inside a medicine cabinet.

Incriminating evidence found during a lawful protective sweep may be seized under the “plain view” doctrine. This discovery of evidence does not, however, justify a subsequent

warrantless search of the residence for additional evidence. You may use the incriminating evidence to obtain a sear ch warrant for the premises._______________ Fourth Amendment 356 2. Timing of the Sweep

The Supreme Court has ruled that a protective sweep may last “no longer than it takes to complete the arrest and depart the premise s.” Maryland v. Buie . Although there is no bright

- line rule on how long a protective sweep may last, they are generally measured in minutes. The longer you take to complete a protective sweep, the more likely a court will find the sweep excessive. For example, a protective sweep was upheld when the special response team opened doors only to areas large enough to harbor a person; there is no evidence that the officers opened drawers or that the sweep of the house was over extensive; and the sweep was sho rt, 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 b een held

unlawful.

C. Two Kinds of Protective Sweeps

The Supreme Court has identified two types of protective sweeps. The first, which requires no articulable suspicion, involves looking in closets and other people

- sized places immediately adjoining the place of arrest from which an attack could be immediately launched. The second, which requires reasonable suspicion, allows a greater intrusion into the premises.

1. “Automatic” Protective Sweep s

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 con ceal 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 atta ck could be immediately launched.” Buie (italics added). Although the limited search is for people, any evidence or contraband found in plain view may be seized._______________ Fourth Amendment 357 2. “Extended” Protective Sweep s

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 includ e an occupant’s demeanor, furtive movements by an occupant, noises indicating that additional persons are present at the residence, and cars in the driveway registered to criminal associates of the suspect. An agency policy mandating an automatic sweep of the entire premises during every arrest

– regardless of the circumstances

- is invalid under the Fourth Amendment. Such a policy cannot justify a suspicionless extended sweep.

D. “Protective Sweeps” W hen the Arrest Occurs

Outside the Home

There is no bright

- line rule that prohibits you from performing protective sweeps of premises when an arrest occurs outside of that building. Instead, as wi th an extended “protective sweep,” you must have reasonable suspicion to believe a third party who poses danger to you is inside the home. If facts supporting that reasonable suspicion exist, it

does not matter whether the arrest occurred inside or outsid e the residence. A bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one room to another. Additionally, the likelihood of the destruction

of evidence is the same whether the arrest occurs indoors or in an outside area within the sight or hearing of an accomplice

within the residence.

X I II. Searches Incident to Arrest (SIA)

It has long been recognized that a search conducted incident to a lawful custodial arrest is not only an exception to_______________ Fourth Amendment 358 the warrant requirement of the Fourth Amendment, but is also

a ‘reasonable’ search under that Amendment.

A. Rationales for the Rule

In Chimel v. California , the Supreme Court outlined three distinct reasons for permitting searches incident to arrest: (1) to discover weapons; (2) to prevent the de struction or concealment of evidence; and (3) to discover any means of escape.

You do not have to specifically believe that the arrestee possesses evidence, weapons, or a means of escape on his person before a search incident to that arrest is justified. The fact the individual has been arrested enables you to conduct a search of that person.

B. Requirements for a Search Incident to Arrest

A search incident to arrest may only be conducted when two 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 s ituation where an actual custodial arrest does not take place. For example, you may not conduct a search incident to arrest in a Terry

- type

situation. A search incident to arrest is more intrusive than a frisk for weapons. A search incident to arrest is not authorized when an individual receives only a citation for an offense, such as a traffic violation, even if the individual could have been taken into custody. Knowles v. Iowa

.

The second requirement for a lawful search incident to

arrest is that the search must be “substantially contemporaneous” with the arrest. New York v. Belton . The exact meaning of this phrase is open to interpretation, but 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_______________ Fourth Amendment 359 circumstances surrounding the search. While a search conducted 15 minutes after an arrest might be valid in one case, a search 30 to 45 minutes after the arrest might be invalid in another. Among the factors to be considered in determining

whether a sea rch was “incident to the arrest” are (1) where the search was conducted; (2) when the search was conducted in relation to the arrest; and (3) whether the defendant was present during the search of a vehicle or other container within

his control at the time of arrest. (See C. Scope of Search, below.) 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 “particular ly important that the search preceded the arrest rather than vice versa.” Rawlings v. Kentucky . In such cases, none of the evidence found during the

pre

- arrest search may be used as probable cause for the arrest.

C. The Scope of a Search Incident to Arrest

The permissible scope of a search incident to arrest varies depending on the context of the arrest.

1. The Person of the Arrestee

When you make a custodial arrest of an individual, you are entitled to search the suspect’s person. In the case of a lawful, custodial arrest, a full search of the person is not only an exception to the warrant re quirement but also a reasonable search under the Fourth Amendment. You may search for weapons, evidence, and any means of escape. Any evidence found on the suspect

-- even if unrelated to the basis of the

arrest

-- may be seized.

2. The Area Within the Arrestee’s “Immediate

Control”

In addition to the person of the arrestee, you are also entitled to search any area within the suspect’s immediate

control. T his includes any containers within the arrestee’s immediate control at the time of the arrest, such as a wallet,_______________ Fourth Amendment 360 backpack, briefcase, or luggage. The phrase “immediate control” means the area from within which the arrestee might gain possession of a weapo n or destructible evidence.

Whether an area is within an arrestee’s immediate control

is determined on a case

- by

- case basis, and should take into consideration a variety of factors, including: (a) the distance between the arrestee and the place to be sea rched; (b) whether the arrestee was handcuffed or otherwise restrained; (c) whether the police were in a position to block the arrested person’s access to the area in question; (d) the ease with which the arrested person could access the area; and (e) the number of law enforcement officers present at the scene.

The reference point for the area within the arrestee’s immediate control is the location of the person at the time of arrest, not where the person is at the time of the search. For example, you arr est someone in a residential bedroom, but remove him from the bedroom for a search of his person or better scene control. You may search the bedroom area incident

to the arrest because that was the area within the arrestee’s

“immediate control” at the time of the arrest.

This rule does not allow you to move the arrestee from place to place within the house and then use the arrestee’s presence in each location to justify a search incident to the arrest of that area. If it is necessary to move an arrestee f rom the room of arrest to a different room to obtain clothing, you may accompany the arrestee. You may seize evidence observed in plain view during this relocation . Arrest outside of a home will not ordinarily justify a search incident to arrest of the

r esidence itself.

3. “Immediate Control” and Vehicles

When the occupant of a vehicle is arrested you may

conduct a search of the vehicle incident to the arrest. The

s cope of a search of the vehicle incident to arrest is found in

New York v. Belton , which established a bright

- line rule:_______________ Fourth Amendment 361 When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that ar rest, search the passenger compartment of that automobile.

Custodial arrest of an occupant of the vehicle is required. There is no search incident to citation. There is no requirement that the occupant arrested be the owner or driver of the vehicle.

Th e 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

.

In applying the Belton rule, courts have interpreted the “passenger compartment” requirement broadly to include those areas reachable by an occupant without exiting the vehicle. An area that is outside any occupant’s reach or that could be reached only through an elaborate dismantling of the vehicle may not be searched. The lawfulness of the search does not depend on whether the occupant was actually capable of reaching the area during the course of the police encounter. As long as an occupant could ha ve reached an area while inside the vehicle, then you may search that area incident to a lawful

arrest.

In light of this broad interpretation, courts have upheld searches of spaces behind radio or heating vents in dashboards, as well as secret compartme nts in the backseat of vehicles, finding that those areas are part of the “passenger compartment” of the vehicle. The interior of a vehicle without a separate, inaccessible trunk area may be treated as one large passenger compartment. For instance, the c ourts have upheld searches of the entire interior of a van, the hatchback area of a vehicle, the rear area of a station wagon, and the cargo area of a
sport

- utility vehicle. Under the Belton bright

- line rule, these areas are included because they are tech nically accessible to persons inside the vehicle.

You may also search any containers found within the passenger compartment of the vehicle. A “container” is any object capable of holding another object, and includes closed or_______________ Fourth Amendment 362 open glove compartments, con soles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. While this definition does not expressly address “locked” containers,

several federal circuits have held that locked co ntainers 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.

A suspect arrested in a vehicle will often be removed from the vehicle, handcuffed, and placed in a police car. The question in such cases is whether you may still conduct a search incident to arrest of the vehicle, even though the arrested person is secured and would have difficulty accessing

any p ortion of the vehicle. While the majority of federal circuits that have addressed this issue have answered in the affirmative, not all have done so. For instance, the Ninth Circuit held that a search of a vehicle incident to arrest was impermissible when the defendant was the only person arrested, he was handcuffed and placed in the rear of a police vehicle, and officers stood watch while the search was performed.

XIV. Issuance of Federal Search Warrants

The rule s delineating who may issue Federal search

warrants are a mix of statutes and Federal case law.

A. Who May Request a Federal Search Warrant?

Rule 41(d)(2)(A) of the Federal Rules of Criminal

Procedure 6 provides that federal search warrants may b e requested by (a) federal law enforcement officers, or (b) an attorney for the government.

6 This Rule can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Rules of Criminal

Procedure.”_______________ Fourth Amendment 363 “Federal law enforcement officer” is defined as a government agent (other than an attorney for the government) who is engaged in enforcing the criminal laws and is within any category of officers authorized by the Attorney General to request a search warrant. You are required to obtain the concurrence of the United States Attorney’s Office before applying for a search warrant. Specifically, 28 CFR § 60.1 provides “that only in the very rare and emergent case is the law enforcement officer permitted to seek a search warrant without the concurrence of the appropriate U.S. Attorney’s office.”

An “attorney for the government” is defined in Rule 1(b)(1), and includes A ssistant United States Attorneys.

B. Who May Issue a Federal Search Warrant?

Rules 1 and 41 of the Federal Rules of Criminal Procedure authorize the following individuals to issue federal

search warrants:

**•** United States Magistrate Judges (Rule 41(b));

**•** 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._______________ Fourth Amendment 364 C. Jurisdictional Requirements

Various statutory provisions also outline jurisdictional

limits on the issuance of Federal search warrants.

**•** Within the District . Pursuant to Rule 41(b)(1), federal search warrants may be issued by federal judges, or a judge from a State court of record, “to search for and seize a person or property located

within the district.”

**•** Outside the District . Pursuant to Rule 41(b)(2), “a magistrate judge with authority in the district has 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

authorit y in any district in which activities related to the terrorism may have occurred, may issue a warrant for a person or property within or outside

that district.”

**•** Stored Wire or Electronic Communications. Pursuant to 18 U.S.C. § 2703(a) and (b), you may

obtain federal search warrants for the contents of wire or electronic communications (email and its attachments) held in temporary storage by either a n electronic communications service or remote computing service from “a court with jurisdiction over the offense under investigation.” This means that you may obtain a federal search warrant from a federal judge who has jurisdiction over the offense in qu estion, although not necessarily the place to be searched. For example, this provision would allow you to obtain a search warrant from a magistrate judge in the Southern District of Georgia_______________ Fourth Amendment 365 for e

- mails temporarily stored on the server of an

Internet Servic e Provider in California. 7

**•** Tracking Devices. Pursuant to Federal Rule of Criminal Procedure 41(b)(4), “a magistrate judge with authority in t he 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.”

D. The “Neutral and Detached” Requirement

The primary reason for the warrant requirement is to interpose a “neutral and detached magistrate” between the citizen and the officer engaged in the often competitive enterprise of ferreting out crime. For that reason, any judge

who issues a federal s earch warrant must be “neutral and detached.” This means that the judge issuing the search warrant should have no personal stake in the outcome of the investigation.

For example, a judge may not issue the search warrant and also participate in the search. The “neutral and detached” magistrate requirement was found to have been violated when the issuing authority was the State Attorney General who was actively in charge of the investigation and later was chief prosecutor at the trial. Similarly, a warrant issued by the District Attorney does not meet the requirements of neutrality and detachment. Finally, when the issuing magistrate has a financial interest in the issuance of search warrants, the magistrate is not “neutral and detached.”

XV. The Componen ts of an Affidavit for a Search Warrant

T he decision to proceed by search warrant is a drastic

one, a nd must be carefully circumscribed so as to prevent

7 This nationwide provision does not apply to data th at do not qualify as “stored electronic communications.” Seizure of ordinary data requires a warrant in every district in which that data may be located._______________ Fourth Amendment 366 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 intr usion 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 sear ch, the requirement ensures that the search will be carefully tailored to its justifications, and

will not take on the character of the wide

- ranging exploratory searches the Framers intended to prohibit. Maryland v. Garrison

.

To comply with the Fourth Am endment, every search warrant must particularly describe: (1) the place to be searched, and (2) the person or things to be seized.

A. Esta blishing 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 ca use 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 obs ervations 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_______________ Fourth Amendment 367 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 deale r’s home provides the most logical and safe place for the dealer to conceal those items.

B. The Information Establishing Probabl e Cause

Cannot Be “Stale”

In an affidavit for a search warrant, you must establish probable cause to believe the evidence sought is currently located at the place to be searched. (An exception exists for anticipat ory warrants; see Part C.) When the information is outdated, it is said to be “stale.” Probable cause cannot be established based on stale information. There is no “bright

line” rule to establish at what point information becomes stale. Instead, courts consider the following factors:

**•** Age of the Information. The age of the information alone, however, will not automatically determine

whether the information is stale.

**•** Whether the Criminal Activity is Continuing . Older information may still support prob able cause when the criminal activity being investigating is ongoing (e.g., a large

- scale fraud scheme).

**•** The Type of Evidence Sought in the Search . Older information may still support probable cause when the evidence sought is of the sort that a suspect would reasonably keep for longer periods of time.

**•** The Nature of the Location to be Searched. Older information may still support probable cause when the place to be searched is owned by the suspect.

C. Anticipatory Search Warrants

An anticipatory warrant is a warrant based upon an affidavit showing probable cau se that at some future time (but_______________ Fourth Amendment 368 not presently) certain evidence of crime will be located at a specified place. United States v. Grubbs . When judges issue an anticipatory search warrant, they are not deciding there is probable cause at the time they sign the warrant, but that probable cause will exist upon the occurrence of an identifiable “triggering event.” In many cases, the triggering event is a controlled delivery of drugs or other contraband by law enforcement officers. You must specifically descr ibe the triggering event in the affidavit, and it must be something other than the mere passage of time. You may not execute an anticipatory warrant unless and until the triggering event specified in the affidavit occurs.

D. Particularity and the Place to be Searched

Under the Fourth Amendment, the affi davit must particularly describe the place to be searched. In providing this description, you s hould 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 sh ould 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

t he 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 invalidat e a search warrant, so long as the remainder of the description is sufficiently particular to allow law enforcement officers executing the warrant to ascertain and identify the place intended to be searched.

1. Particularity and Residences

The description of a place, such as a home, may vary depending on such factor s as whether the house is in a rural or_______________ Fourth Amendment 369 urban setting. When describing a home, state the nature of the dwelling (e.g., house, mobile home, etc.), along with the complete address, including street number, street name, town and state. Also describe the app earance of the property, such as the number of stories, its color, house signs and their locations, and the type of construction (e.g., brick, wood, etc.).

Where the residence is part of a multi

- unit structure such as an apartment complex, include the u nit number or apartment number.

2. Particularity and Persons

When describing a person, state the person’s name (including any known aliases), age, sex, race, eye color, hair color, weight, height, and any distinguishing marks such as tattoos or scars. If you have information as to where the person can be found, inc lude it as well.

3. Particularity and Vehicles

When descr ibing a vehicle, include the name of the owner, the make and model and year, color, license number, vehicle identification number, any unique markings, and where

the vehicle can be found.

E. Particularity and the Persons or Things to be Seized

The Fourth Amendment requires that a warrant particularly describe “the person or thing to be seized.” There are three distinct rationales underlying this particularity requirement. First, it limits the discretion of officers executing

the warrant. Second, it informs the subject of the search what items the officers are entitled to take. And third, it defines the legally permissible scope of the search.

The degree of specificity required depends on the circumstances of the case and the type of it ems 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_______________ Fourth Amendment 370 much more latitude when particularly describing cont raband, 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 acceptabl e. 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.”

Wa rrants for stolen property require a more parti cular description, especially when the items to be seized are of a common nature, such as jewelry.

F. Types of Items That Can Be Seized

Rule 41(c) provides that a warrant may be issued for any

of t he 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 re strained. Each item that you wish to seize must fall into one, but may fall into more than one, of the above categories. As a practical example, photographs depicting child pornography are evidence of a crime, contraband, fruits of a crime, or other item s illegally possessed.

When you execute a search warrant, the general rule is that you may seize only those items that are particularly described in the warrant. The “plain view” doctrine, discussed above in section XIII, provides an exception to this ge neral rule. When you have a warrant to search a given area for specified objects, and in the course of the search you come across some other article of incriminating character, you may seize it.

Horton v. California . For instance, if you have a warrant to search for 27” television sets, you can look in those areas where 27” television sets could be hidden. If, when searching those areas, you come across an item that you immediately recognize as incriminating ( e.g. , a controlled substance on the floor of a bedroom closet), you may seize it based upon the “plain view”_______________ Fourth Amendment 371 doctrine. Remember, however, that the plain view doctrine does not expand the scope of a search warrant. Discovery of a

controlled substance on the floor of the bedroom closet does not, with out further judicial approval, allow you to broaden your search to include all areas that could contain controlled substances. You are simply allowed to seize the controlled substance and continue searching areas that could conceal a

27” television set. The items you saw that are outside the scope of the warrant may be used to establish probable cause for an

additional search warrant.

G. False or Misleading Statements in the Affidavit

Before a search (or arrest) warrant is issued, the Fourth Amendment requires a truthful factual showing in the affidavit used to establish probable cause. In Franks v. Delaware the Supreme Court addressed the issue of whether a false statement by a government affiant invalidates a search or arrest

warrant.

If the court determines by a preponderance of the

evidence that a f alse 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 rema ining content does not establish probable cause, the search warrant is invalid and the fruits of the search

are excluded

.

XVI. Telephonic Search Warrants

A judge may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is

reasonable under the circumstances. In such circ umstances, Rule 41(d)(3), titled “Requesting a Warrant By Telephonic or Other Means,” outlines the procedural rules for obtaining telephonic search warrants. Subsection (A) of the rule provides

that:

A magistrate judge may issue a warrant based on

inform ation communicated by telephone or other

reliable electronic means

._______________ Fourth Amendment 372 A. Purpose of Rule 41(d)(3)

The purpose of Rule 41(d)(3) is to encourage federal law

enforcement officers to seek search warrants in situat ions when they might otherwise conduct warrantless searches.

B. Telephonic Warrants and Exigent Circumstances

The time necessary to obtain a traditional warrant is

relevant to a determination whether circumstances ar e exigent. Telephonic warrants typically take less time. Courts also consider the amount of time necessary to obtain a warrant by telephone in determining whether exigent circumstances exist. Exigent circumstances exist only when the critical nature of the circumstances clearly prevented the effective use of any warrant procedure.

Failing to make a good faith attempt to obtain a telephonic warrant or to present evidence showing that a telephonic warrant was unavailable ordinarily requires suppression.

C. Who Can Issue Telephonic Warrants?

Unlike traditional federal search warrants issued pursuant to Rule 41, a state court judge may not issue a telephonic search warrant. Telephonic search warrants must be issued by federal judges.

D. Procedural Requirements

Rules 41(d)(3) and 41(e)(3) set out a var iety of procedural requirements that must be met to obtain and execute a telephonic search warrant. There are actually two warrants involved in a telephonic warrant request: The “original” warrant, completed by the magistrate judge, and a “duplicate origi nal warrant,” completed by the law enforcement officer involved._______________ Fourth Amendment 373 1. Prepare the “Duplicate Original Warrant”

First, you must prepare a “proposed duplicate original warrant.” The duplicate original warrant must be in writing, although there is no requirement that the affidavit be in writing.

2. Read It Verbatim or Transmit it by Reliable

Electronic Means

Second, you must read or otherwise transmit the contents of that document verbatim to the magistrate judge. This means that you may, if the option is available, transmit the duplicate original warrant to the magistrate judge by e

- mail or

facsimile.

3. Preparation of “Original” Warrant

If you read the contents of the proposed duplicate original warrant, the magistrate judge must enter those contents into an original warrant. Of course, the magistrate judge may modify the original warrant. In that case, the judge will direct you to modify the proposed duplicate original warrant accordingly.

If you send the proposed duplicate original warrant to the judge by reliable electronic means, that transmission may serve as the original warrant. A judge who chooses t o modify the warrant must transmit the modified warrant back to you by reliable electronic means or direct you to modify the proposed duplicate original warrant accordingly.

4. The Warrants Are Signed

Next, upon determining to issue the warrant, the magistrate judge must immediately sign the original warrant, enter on its face the exact time it is issued, and direct you to sign the judge’s name on the duplicate original warrant._______________ Fourth Amendment 374 5. Time of Execution Must Be E ntered on the “Duplicate Original Warrant”

Finally, you must enter the exact date and time it is

executed.

E. Recording and Certification Requirements

In addition to the requirements listed above, recording

an d certification requirements must be met.

1. Oath or Affirmation

Upon learning that you are requesting a telephone warrant, the magistrate judge must place you under oath. You must be under oath from the incept ion of the call.

2. A Verbatim Record of the Conversation

The magistrate judge must make a verbatim record of the conversation with a suitable recording device, if available, or by a court reporter, or in writing.”

3. Certification of the Recording

Finally, the magistrate judge must have any recording or court reporter’s notes transcribed, certify the transcription’s accuracy by signature, and file a copy of the record and the

t ranscription with the clerk. The purpose of transcribing the taped conversation and certifying the transcription is to give reviewing courts an accurate account of the facts originally presented to the magistrate which resulted in the issuance of a

search warrant.

XVII. Executing Search Warrants

There are both statutory and case law rules that guide you in the execution of a search warrant. Some of the more

common rules are listed below._______________ Fourth Amendment 375 A. Who May Execute a Federal Search Warrant

Rule 41(e)(1) provides that a search warrant must be issued “to an officer authorized to execute it.” Title 18 U.S.C. §

3105 8 determines who qualifies as an authorized officer.

A search warrant may in all cases be served by any

o f 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 discret ion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant. Issues can arise, however, when non

- federal law enforcement officers assist

in the execution of a federal search warrant.

State and local law enforcement officers may assist you in the execution of federal search warrants. These officers may be

“cross

- designated” as federal law enforcement officers, but are not required to be, so long as a federal law enforcement officer

i s directing the execution of the search warrant.

Private citizens may also lawfully assist you in the execution of a federal search warrant when three general requirements are met. First, the private citizen’s role must be to aid your efforts. Private c itizens cannot be present during the execution of a search warrant solely to further their own goals. Second, you must be in need of assistance from the private citizen. This may occur, for example, when you execute a search warrant for computers. Compu ter technicians are often needed to ensure data is not lost during the seizure of the computer. Third, private citizens are limited to doing only those things that you are entitled to do.

8 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Fourth Amendment 376 B. When May a Federal Search Warrant Be Executed?

A federal search warrant must command the officer to execute the warrant during the daytime, unl ess 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, agen ts may remain on the premises as long as reasonably necessary to complete the

search.

Nighttime execution of a search warrant is also permissible if you specifically request it. The judge will approve the request if there is reasonable cause to believe a nighttime search is necessary based on the likelihood of danger to the

officers or destruction of evidence.

Title 21 U.S.C. § 879 9 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 se arch, 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 prov ides for service “within a specified time.” Thus, the search warrant itself may specify when service is required. Second, if no specified time period for the search is contained in the warrant itself, the warrant must be served within a period “no longer than 10 days” from the date of

issuance.

9 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Fourth Amendment 377 Tracking warrants that authorize installation of a tracking device “must command the officer to complete any installation authorized by the warrant within a specified time no longer than 10 calendar days” from th e date the warrant is issued. Installation must be performed in the daytime, “unless the judge for good cause expressly authorizes installation at another time.” Rule 41(e)(2)(B)(i)

- (ii).

C. Use of Force in Executing a Federal Search Warrant

The facts of each individual case determine whether you may lawfully handcuff the occupants of the premises while executing a search warrant. Whether that force was reasonable is determined by looking at the “totality of the circumstances.” Among the factors considered by the courts in making this determination are: (a) the severity of the cri me; (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 phy sical force applied was of such an extent as to lead to injury; and (f) whether the suspect was elderly, a child, or suffering from illness or medical disability.

D. Presenting the Warrant Prior to Beginning the

Search

The general rule is that you are not required to present a copy of the search warrant to the occupant prior to beginning

the search. However, where the circumstances permit, the best practice is to first provide a copy of the warrant to the occupant. At least one federal circuit court of appeals (the Ninth) requires this course of action where no justifiable reason exists that

would excuse it.

E. Answering the Telephone While Executing a Search

Warrant

You may answer a ringing telephone without violating the Fourth Amendment if you are lawfully on the premises_______________ Fourth Amendment 378 executing a search warrant. Any incriminating evidence acquired from those telephone calls is not subject to

suppress ion on grounds of constitutionally protected privacy

concerns.

F. Temporary Seizure of Weapons

When, during the execution of a search warrant, you find a dangerous weapon (such as a handgun) that is not listed in the warrant and is not obviously contraband or evidence, you may temporarily seize it for safety reasons. If the weapon is not contraband or evidence of crime, the weapon should be safely returned to its owner upon his release from the scene or at the

conclusion of the warrant execution.

G. Detaining the Occupants of a Premises During the Execution of a Federal Search Warrant (The “Summers Doctrine”)

A search warrant for contraband carries with it the limited authority to detain the occupants of the premises until a proper search is completed. Michigan v. Summers . This is sometimes

referred to as the “ Summers Doctrine.” Contraband generally

includes i tems 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 legit imate 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, ther efore, 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 exerc ise unquestioned control of the situation. And third, the occupants of the premises may assist in the orderly completion of the

search. Their self

- interest may induce them to open locked doors or locked containers to avoid a use of force that might not_______________ Fourth Amendment 379 o nly damage property, but may also delay completion of the

search.

For the “ Summers Doctrine” to apply, the occupant must be in or around the residence when the search warrant is being executed. When an individual approaches and attempts to

enter a r esidence 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 geogr aphic limit, the farther a person is from the premises to be searched, the less likely the detention will be upheld under the “ Summers Doctrine.”

Warrants for “mere evidence,” such as documents evincing tax fraud, do not fall squarely within the “ Summers Doctrine.” During the execution of non

- contraband warrants, you may detain occupants of the premises for a reasonable period of time. This would include the time required to identify the occupants and determine their relationship to the premises

and the investigation at hand. Once you determine that an occupant is not needed for the orderly execution of the warrant and poses no threat of harm if released, you should ordinarily release that person.

You may use reasonable force to conduct lawful

detenti ons 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 totali ty 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 da ngerous nature of the crime under investigation, the items sought in the warrant, and the number of persons found on the premises, the Supreme_______________ Fourth Amendment 380 Court held that both the length of Mena’s detention and the use of handcuffs were justified.

H. Frisking and Searching Persons on the Premises

You are not allowed to automatically “frisk” every person located on the premises during the execution of a search warrant. Instead, as with any pat

- down for weapons, you must be able to explain the facts that gave you reasonable suspicion to believe the person frisked was presently armed and dangerous. “The ‘narrow scope’ of the Terry exception does not permit a fris k 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 authoriz e you to search any person located on the premises at the time the

warrant is executed. Consistent with the Summers Doctrine, individuals located on the premises may be briefly detained. When the facts justify it, a frisk of some or all of those persons may be permissible. The mere fact that you have a premises search warrant does not authorize a full search of persons on the premises. Of course, if an individual present during the search is listed in the warrant, you may search that person.

I. Permissible Search Locations on a Premises

In United States v. Ross the Supreme Court discussed the scope of a search condu cted 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._______________ Fourth Amendment 381 1. Premises, Outbuildings, and Curtilage

You may search all buildings and other structures within the curtilage, even if not speci fically referenced in the search warrant. The best practice, however, is to list all known outbuildings or significant structures in the search warrant.

2. Vehicles Located on the Curtilage

Pursuant to the premises warrant, you may search those vehicles located on the curtilage of the property that are or appear to be owned by or under the control and dominion of the premises owner/occupier, even if not specifically listed in the search warrant. The vehicle must be parked on the curtilage of the home where the warrant is being served. The best practice is to specifically list the owner’s known veh icles in the search warrant. Some circuits, such as the Seventh and Fifth Circuits, allow a search of vehicles within the curtilage that are not owned or controlled by the premises owner, but that have some other logical connection to the premises. Vehic les that may not

be searched in any jurisdiction are those that are incidentally present, such as a delivery vehicle.

3. Containers

Generally, you may search any container located within the premises that is capable of holding the property that is the subject of the warrant. However, if the container belongs to a person who is only visiting the premises, special concerns arise. In addressing this issue, the federal courts have taken two different approaches.

The first focuses on the relationship between the visitor and the premises being searched. Under this approach, the stronger the relationship is bet ween the visitor and the premises being searched, the more likely you may search the visitor’s personal possessions. You may search the property of an overnight guest of the homeowner. On the other hand, an individual who was simply a casual visitor to t he home would likely not have a significant enough connection with the property to justify a search of the individual’s belongings. You_______________ Fourth Amendment 382 may not search the personal possessions of a dinner guest or a commercial visitor (e.g., appliance repairman) pursuant to the

warrant.

The second approach focuses on the physical possession or location of the item in question. Under this approach, you may not search an item that is in the physical possession of the visitor. In that circumstance, the container is an exte nsion of the person and clearly outside the scope of a premises search warrant. You may search an item not in the physical possession of the visitor because it falls outside the scope of a “personal” search.

J. Damage or Destruction of Property During the

Search

When you execute search warrants, you may occasionally damage or destroy property in order to conduct a complete and thorough search. The damage or destruction of an individual’s property during the execution of a search warrant does not automatically violate the Fourth Amendment. However, such damage or destruction will constitute an unreasonable search and seizure if the destruction was not reasonably necessary to

the execution of the warrant.

K. Preparing an Inventory

Rule 41(f)(1)(B) outlines the requirements for completion of an inventory following the execution of a search warrant. Specifically, the Rule provides tha t “[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 whos e 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.”_______________ Fourth Amendment 383 L. A Copy of the Warrant and the Inventory Must Be

Provided

Rule 41(f)(1)(C) re quires that you provide a copy of the warrant and the inventory following completion of the search. Specifically, the Rule provides that “the officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken; or leave a copy of the warrant and receipt at the place where the officer took the property.”

M. Return of the Warrant

Rule 41(e)(2) requires that a search warrant “designate the magistrate judge to whom it must be returned.” Rule 41(f)(1)(D) requires that “the officer executing the warrant must promptly return it

- together with a copy of the inventory

- to the magistrate judge designated on the warrant. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken

and to th e 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 author ized by statute.” Examples of statutes that permit delayed notice are Rule 41(f)(2)(C) (warrants for electronic tracking devices), and 18 U.S.C. § 3103a(b) (“sneak and peek” or “covert entry” warrants).

XVIII. The “Carroll Doctrine” (Mobile Conveyance Exception)

First established by the Supreme Court in the 1925 case

of Carroll v. United States , the “ Carroll Doctrine” provides th at if you have probable cause to believe that a mobile conveyance located in a public place has evidence of a crime or contraban d located within it, you may search it without first obtaining a

warrant._______________ Fourth Amendment 384 A. Rationales for t he Rule

There are two separate and distinct rationales underlying the mobile conveyance exception to the warrant requirement. First, the inherent mobility of vehicles typically makes it impracticable to require a warrant to search, in that the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Second, while the original focus

was on a vehicle ’ s inherent mobility, recent cases have focused

on an individual ’ s reduced expec tation of privacy in a vehicle to
support a warrantless search based on probable cause. Pennsylvania v. LaBron

.

B. Prerequisites for a Search Under the “ Carroll

Doctrine ”

There are two requirements for a lawful search under the mobile conveyance exception. First, there must be probable

cause to believe that evidence of a crime or contraband is located within the vehicle. This means that before conducting a

warr antless search of a vehicle, you must have sufficient facts available to you to successful ly obtain a warrant from a magistrate judge

. Under the “ Carroll Doctrine, ” however, the requirement to obtain the warrant is excused.

You may e stablish p robable cau se to search a vehicle in a variety of ways. For example, you may be able to establish probable cause based on a tip provided by a reliable confidential

informant. You may establish probable cause through your personal observ ation of evidence or contraba nd in open view

inside a vehicle. The “ plain smell ” corollary to the plain view doctrine may also allow you to establish probable cause to search a vehicle based upon your sense of smell.

The second requirement for a valid search under the mobile conveya nce exception is that the vehicle be “ readily

mobile ” at the time you encounter it

. “Readily mobile” means the vehicle reasonably appears to be operational, or appears as though it will be operational with minor effort or repair. A

vehicle stuck in the m ud, for instance, is inherently mobile even_______________ Fourth Amendment 385 though the driver cannot drive it away immediately. On the other hand, a vehicle that will obviously remain immobile for a long time

– such as a car up on blocks

– should be treated as a stationary container, ra ther than a mobile conveyance.

There is no requirement that a mobile conveyance actually be moving or even occupied at the time of the search

. The “Carroll Doctrine” will still apply as long as the probable cause and mobile conveyance prerequisites are met.

C. There is No “ Exigency ” Required to Conduct a

Search Under the “ Carroll Doctrine ”

There is no “exigency” required to conduct a warrantless vehicle search; all that is required is a mobile conveyance and probable cause. Thus, even if you have the opportunity to obtain a warrant and fail to do so, the search will still be valid if the two requirements discussed above are present.

D. The Timing of a Search Under the “ Carroll Doctrine ”

Once you ha ve probable cause to search a readily mobile vehicle, you may conduct the search immediately or later at the police station. There is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful

seizure. The justification to conduct such a warrantless search

does not vanish once the car has been immobilized . “ Carroll Doctrine” searches are lawful regardless of the likelihood that

the car w ill be driven away, or that its contents w ill be tampered

with during the period required for you to obtain a warrant

.

Even though the courts have given you wide latitude in deciding when to conduct a vehicle search, you are still required

to act “ reasonably ” and may not indefinitely retain posse ssion of

a vehicle and its contents before you complete a vehicle search. If time permits, a search warrant for the vehicle should be obtained, even in situations where a warrantless search may be permissible._______________ Fourth Amendment 386 E. The Scope of a Search Under th e “ 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 i ts contents that may conceal the object of the search

. ” Thus, if a search warrant could authorize you to search for an item in a particular location, such as the passenger compartment or trunk of the vehicle, you may search there without a warrant under t he mobile conveyance exception to the warrant requirement.

Probable cause to search does not automatically entitle you to search every part of a vehicle. Scope of search applies to warrantless searches just as it does to searches authorized by a

warrant. Any search based upon probable cau se is necessarily limited by the nature of the object being sought. If you have probable cause to believe that a vehicle contains a full

- size shotgun, you may not lawfully look inside the glove compartment during your se arch.

You are generally not required to have a “ particularized ” suspicion that evidence ( e.g., drugs) is located in the trunk before you may lawfully search that area. F or example, if drugs (or drug paraphernalia) are found in the passenger
compartment o f a vehicle, you may typically search the trunk for additional drugs. This is true even if the drugs found in the passenger compartment are small, “ personal use ” amounts.

If you have probable cause to search the entire vehicle

and discover a closed conta iner during your search, you may search the container, whether locked or unlocked, if what you are seeking could be concealed inside of it. The scope of a

warrantless search of an automobile is not defined by the

nature of the cont ainer in which contraban d is hidden. Rather, it is defined by the items you are searching for and the place in which there is probable cause to believe they may be found._______________ Fourth Amendment 387 If you have probable cause to believe a specific container

inside a vehicle contains evidence of a crime or contraband, you may stop and search the vehicle to retrieve that container. Once retrieved, you may search the container without a warrant under the vehicle exception. California v. Acevedo . Importantly, the probable cause relating to the specific contai ner does not support a general search of other areas of the vehicle ( e.g., the glove compartment). If you wish to extend your search to the entire vehicle, y ou must have some additional justification to do so, such as additional probable cause gained afte r the stop, consent, or a search incident to arrest.

Finally, the mobile conveyance exception has been extended to include a passenger ’ s belongings. When you have probable cause to search a car , you may search passengers ’ belongings found in the car that are capable of concealing the object of the search.

XIX. Searches Based on Exigent Circumstances

It is a well

- established ru le 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 s uch exception. Exigent circumstances exist whe n a reasonable pers on would believe that, based on the available facts, an immediate search is necessary to prevent the escape of a suspect, the destruction of evidence, or the death or injury of a person.

The government always has the burden of proving a lawful search. For this exception to the warrant requirement,

t he government must prove both the existence of probable cause and the exigent circumstance. F actors considered by courts in determining whether exigent circumstances exist include: (a) the gravity or violent na ture of the offense with which the suspect is to be charged; (b) a reasonable belief that the suspect is armed; (c) probable cause to believe the suspect committed the crime; (d) strong reason to believe the suspect is in the premises being entered; (e) th e likelihood that a delay could cause the escape of the suspect or the destruction of_______________ Fourth Amendment 388 essential evidence; and (f) the safety of the officers or the public jeopardized by delay.

The scope of a warrantless search is “ strictly circumscribed by the exigencies which justify its initiation. ” Once the exigent circumstances that justified the warrantless search no longer exist, the right to conduct a warrantless

search also ends.

A number of situations are covered under the definition of exigent circumstances. Below are three of the most common types of exigent circumstances you are likely to encounter.

A. Hot Pursuit

The parameters of the hot pursuit exception were established by the Supreme Court in Warden v. Hayden and

United States v. Santana . In general, the following requirements must exist for hot pursuit to be a lawful exigent

circumstance:

**•** Probable Cause to Arrest . Probable cause must exist to arrest the suspect.

**•** Serious Crime. The warrantless entry into the home

must be for a “ serious ” crime. T he more serious the crime, the more likely that the warrantless entry to

affect the arrest will be upheld. “[I] t is difficult to

conceive of a warrantless home arrest that would

not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor. ”

Welsh v. Wisconsin

.

**•** Immediate or Continuous Pursuit. There must be an

“ immediate or continuous ” pursuit of the suspect. This does not require that you actually observe the suspect commit the crime, nor does it require that you actually see the suspect flee from the scene of

the crime._______________ Fourth Amendment 389 **•** From a Public Place

. “ Hot pursuit ” occurs when a suspect enters a home from a public place. A suspect may not defeat an arrest which has been set in motion in a public place by escaping to a private place.

**•** Probable Cause t o Believe That the Suspect is in the

Residence . You must have probable cause to believe the suspect is inside. Probable cause may be based on your own observations or on information provided to you by reliable sources.

B. Destruction or Removal of Evidence

A second common exigent circumstance involves th e actual or potential destruction or removal of evidence. This exception allows you to make a warrantless search of an area or item when you have sufficient facts that would lead a reasonable person to believe that evidence is being, or will be, destroyed or removed in the time it would take the officers to obtain a search warrant. The test is an objective one, focusing on what a reasonable person in your position would believe based on the facts available to you at the time.

An example of when the poten tial destruction of evidence may allow a warrantless entry and search is when an occupant of a home, upon seeing police officers standing on her porch, hurriedly begins to pour illegal drugs down a drain. Another example is the warrantless drawing of bloo d from a DUI suspect

arrested at 1 a.m. Were the blood not drawn and evidence (alcohol content) preserved, the body itself would destroy much

of the evidence before a warrant could be obtained.

The f ederal circuit courts of appeal differ in what they

req uire 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_______________ Fourth Amendment 390 belief that the loss or destruction of evidence is imminent.

In contrast, the Tenth Circuit Court of Appeals has

announced a four

- part test to determine whether the imminent destruction of evidence will justify a warrantless entry: (1) any entry should be made pursuant to clear evidence of probable cause; (2) a warrantless entry is available only for serious

crimes and in circu mstances 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 ab use.

C. Emergency Scene

The need to protect or preserve life typically justifies

actions that would otherwise violate the Fourth Amendment.

N umerous state and federal cases have recognized that the

Fourth Amendment does not bar you from making warrantless

entries and searches when you reasonably believe that a person

within is in need of immediate aid.

Examples of “ emergency ” situations in which courts found exigent circumstances include: (a) a report of a woman and child in danger in a crack house; (b) a report that a victim had been stabbed; (c) an explosion in an apartment; (d) a report
that ch ildren 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

drive wa y with a trail of blood leading into the home ; and (i) the existence of a methamphetamine lab

.

A valid emergency scene search must usually meet two requirements: (1) you must have objectively reasonable grounds to believe that there is an emergency at hand and an immediate need for your assistance for the protection of life or property; and (2) there must be some reasonable basis, approximating probable cause, to associate the emergency with_______________ Fourth Amendment 391 th e area or place to be searched. 10 The term “ probable cause ” in this context is different from how that term is typically used. Probable cause generally means facts exist that would lead a reasonable person to believe that evidence of a crime will be discovered. But in the context of an emergency scene situation,

the term “ probable cause ” means facts exist that would lead a reasonable person to believe that a person is in some type of danger.

As with any lawful warrantless search, you may seize any evidence that is in p lain view during the course of your legitimat e emergency activities. For instance, f irefighters responding to a call may seize evidence of arson that is in plain

view.

Finally, there is no “ murder scene ” or “crime scene” exception to the Fourth Amendment. In three separate cases,

the Supreme Court has rejected attempts at creating such an exception. In Mincey v. Arizona the Court declined “ to hold that the seriousness of the offense under investigation itself creates exigent circumstanc es 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 Cour t reiterated its earlier rejections of a “‘ murder scene exception ’ to the Warrant Clause

of the Fourth Amendment. ”

XX. Consent Searches

“It is ... well

- settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. ”

Schneckloth v. Bustamonte . When you obtain valid consent to

sea rch a given area or object, neither reasonable suspicion, nor probable cause, is required. I n situations where you have some evidence of illicit activity, but lack probable cause to arrest or

10 A previous requirement that the search not be pri marily motivated by the intent to arrest and seize evidence was eliminated by Brigham City v. Stuart

._______________ Fourth Amendment 392 search, a search authorized by valid consent may be the only

me ans of obtaining important and reliable evidence. C onsent may be expressly sought from and given by a suspect ( e.g., “ Do you mind if we search your vehicle? ” ).

A. The Requirements fo r a Consent Search

T here are two requirements f or a consent search to be valid: (1) the consent must be voluntarily given, and (2) the consent must be given by an individual with either actual or apparent authority over the place to be searched.

1. Voluntariness

T he Fourth Amendmen t require s that consent not be coerced, by explicit or implicit means, by threat or covert force. Any consent provided must be given voluntarily, and not as a

result of duress or coercion. C ourts l ook at the totality of the circumstances surrounding a gr ant of consent, analyzing all the

circumstances to determine whether it was voluntary or

coerced. Factors a court will consider in deciding whether consent was given voluntarily include:

**•** The age, education, and intelligence of the individual granting con sent;

**•** 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 punish ment, such as the deprivation of food or sleep;_______________ Fourth Amendment 393 **•** Whether the individual cooperated in the search, such as by assisting law enforcement officers in opening a locked container;

**•** Whether the individual was in custody at the time the consent was given;

**•** The p resence 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 w as notified of his Miranda rights prior to giving consent;

**•** Whether the police made promises or misrepresentations to the individual in order to obtain the consent;

**•** The location where the consent was given (i.e., was it given on a public street or in the confines of a police station);

**•** Whether the individual was told a search warrant could be obtained; and

**•** Whether there were repeated requests for consent

made to the individual.

Acquiescence to a law enforcement officer ’ s show of authority is not voluntar y consent. C onsent will not be valid if

it is given after you falsely assert an independent right to make the search. For example, consent give n only after you assert

that you ha ve a warrant is not truly voluntary in that you are

“ announcing in effect th at the [individual] has no right to resist

the search. ” Bumper v. North Carolina . T he government has_______________ Fourth Amendment 394 the burden of proving that the consent was voluntarily given

, and it is not enough to show mere acquiescence to a claim of lawful authority.

Consent may be inferred from a suspect ’ s words or actions. For example, you knock on a person’s door and, when

the person answers, you ask for permission to enter the residence. Without saying anything, the person steps back and clears a path for you to enter the h ome. In this case, the person’s actions have given you consent to enter the home, even though no words were spoken.

2. Actual or Apparent Authority

The second requirement is that the consent must be give n by an individual with either actual or apparent authority over the place to be searched. Actual a ut hority 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 ... effec ts 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

. A ny of the joint users has the authority to consent, a nd the

others have assumed the risk that one of the m might permit the

shared area or item to be searched.

The consent of one party who has authority over the place to be searched, however, is not valid if another party with authority is present and expres sly refuses to give consent for the search. You are not required to attempt to locate any or all

of those who might have authority over the premises to determine whether they are willing to consent to search; however, you may not isolate or remove the pot entially non

consenting party just to avoid a possible objection to the search. Georgia v. Randolph

.

You may also o btain valid c onsent from an ind ividual who

has app arent authority over the place or item to be searched._______________ Fourth Amendment 395 This typically occurs when you co nduct a w arrantless search based upon the consent of a third

- party who you , at the time of the search, reasonably

-- but mistakenly

-- believe possesse s common authority over the object. If your belief is reasonable considering all of the facts available to you at the time the search is conducted, the search will still be valid, despite the fact that the consenting party lacked actual authority to give

consent.

B. The Scope of a Consent Search

“ The standard for measuring the scope of a suspect ’ s consent under the Fourth Amendment is that of ‘objective’

reasonableness

– what would the typical reasonable person have understood by the exchange between the officer and the
suspect ? ” Florida v. Jimeno

. In answering this question, courts look at not only the words used by both you and the

person , but also the overall context in which the exchange took place. For example, in a situation involving a consent search of

a vehic le, 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

.

I t is typically unreasonable , however, to believe that an

i ndividual who has given a general consent to search is consenting to the damage or destr uction of the property. S eek additional, e xpress permission to search a locked container (e.g., a locked briefcase) and proceed only if consent is granted. To support the reasonableness of any such search, refrain from damaging or destroying the container in the process of opening

it.

A n individual may limit the scope of any consent by saying something like, “You may search here but not there.”

You must honor such a limitation. An individual may also revoke consent. When consent is revoked, you are required to
stop searching, unless another exception to the Fourth

Amendment ’ s warrant requirement ( e.g., probable cause to search a vehicle) is present._______________ Fourth Amendment 396 C. Third

- Party Consent Situations

The types of third party consent situations that you may confront are limitless. The following are some of the most frequently occurring ones.

1. Husband

- Wife Situation s

Abse nt 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. S everal f ederal c ircuits have held that a

spouse ’ s consent may be effective even after he or she leaves the

marital home.

2. Parent

- Child Situations

Consent in parent

- child situations can be divided into

cases in which the child i s 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 belon gings or living area, such as the bedroom.

C ircuit 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.

C onsent from a child as young as ni ne has been found valid. Exercise caution and obtain additional guidance from the appropriate legal advisor in any situation involving the consent

of a minor.

W he n an adult child still lives in the parent ’ s home, the issue of parental consent is more com plicated. In determining whether a parent may consent to a search of an adult child ’ s living areas, courts have focused on two distinct questions._______________ Fourth Amendment 397 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 o f 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 s earch

of the child ’ s property or living area within the parents’ home

.

3. Roommate Situations

An individual who shares a residence with another person assumes the risk that the other person might consent to a

search of all common areas of the residence, as well as all areas to which the other person has access. However, one roommate may not generall y give consent to search the personal property or exclusive spaces ( e.g., bedroom) of the other.

XX I

. Inventory Searches

Inventory searches are a well

- defined exception to the warrant requirement of the Fourth Amendment. O nce an item (e.g., a vehicle) has been lawfully impounded by law enforcement officers, an inventory search may be conducted if it

is done “ reasonably. ” South Dakota v. Opperman

. I nventory searches are routine, non

- criminal procedures which do not require probable cause or a warrant. A n inventory must not be a ruse for a general rummaging in order to discover incriminating evidence. Rather, t he policy o r practice governing inventory searches should be designed to produce a list of personal property found in the vehicle

. A n inventory search is

invalid w hen conducted in bad faith or for the sole purpose of investigation.

Criminal e vidence found during a lawfully conducted inventory search may be seized under the “plain view” doctrine

and may provide probable cause for a warrant or for a more_______________ Fourth Amendment 398 thorough search under an exception such as the “ Carroll

doctrine.”

A. Justifications for Inventory Searches

The Supreme Court has recognized three justifications for allowing the inventory of lawfully impounded property without first obtaining a warrant . First, law enforcement must protect

the owner ’ s property while it remains in police custody. Second, an inventory protects the police against claims or disputes over damaged, lost or stolen property. And third, an inventory is necessary to protect the police from potential dangers that the property may pose.

B. Requirements for Inventory Searches

To conduct a lawful inventory search, two re quirements must be met. First, you must have lawfully come into the possession of the property being inventoried. And second, you must conduct the inventory pursuant to a standardized policy.

1. Lawful Impoundment

An inventory search will not be valid if the property searched is not lawfully in the custody of the law enforcement officers who perform the inventory. The impoundment of an

individual ’ s property must be based upon either: (a) probable cause, such as a violation of local and state motor vehicle laws (e.g., multiple parking violations), or (b) law enforcement ’ s

“ community caretaking ” func tion.

2. Standardized Policy

Your agenc y must have a standardized policy governing

how inventor y searches are to be conducted , and you must know and follow the policy

. Standardized policies promote t he underlying rationale for the inventory exception to the Fourth

Amendment warrant rule by removing officer discretion to determine the scope of the i nventory search. This absence of discretion ensures that inventory searches will not be used as a purposeful and general means of discovering criminal evidence._______________ Fourth Amendment 399 While there must be a standardized inventory policy, several courts have upheld unwritten poli cies based upon testimony regarding standard practices within an agency. Nonetheless, the best way for law enforcement agencies to avoid potential legal challenges to inventory searches is to reduce their standardized inventory policy to writing. Law enf orcement agencies may establish their own standardized policies, so long as they are reasonably constructed to accomplish the goals of inventory searches and are conducted in good faith.

C. Sco pe of Inventory Searches

The scope of an inventory search is defined by the standardized inventory policy of the particular agency involved. As a general rule, inventory searches may not extend any further than is reasonably necessary to discover valuables or other items for safekeeping. For example, when conducting an inventory search of a vehicle, you would not be justified in looking inside the heater ducts

, the door panels , the gas tank, or the spare tire . Valuables are n ot normally kept in such

locations.

You may conduct an inventory search of passenger compartments, includ ing 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 v aluables.

I nventory searches of the trunk have also been found valid. You may also conduct an inventory search of containers, locked or unlocked, so long as the standardized inventory policy permits. E xcessive or unnecessary destruction of property in

the course of a n inventory search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search not subject to suppression. When a trunk is locked, use keys or other tools to enter it in order to comply

with the Fou rth Amendment. Finally, a valid inventory search may include the engine compartment of a vehicle.

D. Location of an Inventory Search

Although inventory s earches typically occur at a police station or an impoundment facility, rather than at the time of_______________ Fourth Amendment 400 the arrest

, the Fourth Amendment does not require that police conduct inventory searches at any particular location. You may conduct an inventory search on

- site, before impounded property is removed.

XXI I

. Administrative Searches

The Supreme Court has a llowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited. Generally termed “ inspections, ” these types of administrative searches take place in a variety of d ifferent forums, including both personal and real property.

A dministrative 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.

Criminal evidence discovered during the course of a valid administrative search may be seized under the “ plain view ”

do ctrine and may be used to establish probable cause to obtain

a criminal search warrant.

A. S obriety 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 in terest in preventing accidents caused by drunk drivers outweighed the minimal intrusion upon drivers who are temporarily stopped.

B. Driver ’ s License and Registration Checkpoints

In Delaware v. Prou se 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._______________ Fourth Amendment 401 C. Information

- Gathering Checkpoints

“ [S]pecial law enforcement concerns will some times 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. N o individualized suspicion is

necessary w hen the stop ’ s primary law enforcement purpose is

not t o determine whether a vehicle ’ s occupants are committing a crime, but to ask them , as members of the public, for help in providing information about a crime in all likelihood committed by others.

D. Checkpoints for General Crime Control Purposes

The Supreme Court has ne ver approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. I n City of Indianapolis v.

Edmond police set up a checkpoint to discover d rugs. The Supreme Court determined that because the primary purpose of

the c heckpoint was to advance “ the general interest in crime control, ” the checkpoint was unlawful. I ndividualized suspicion is required whe n police employ a checkpoint primarily for the ordinary enterprise of investigating crimes.

E. Administrative Inspections of Businesses

Inspections of businesses, such as those in the food and drug industry , are relatively commonplace. These businesses are subject to inspection for a variety of reasons, including

ensur ing 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,_______________ Fourth Amendment 402 then ther e is probable cause to issue a warrant for a limited administrative inspection. This p robable cause may be based on specific evidence of an existing viola tion or on r easonable legislative or administrative standards for conducting an

i nspection. T here must be a regulatory scheme that authorizes any administrative search. This means that legislative, administrative, or judicially prescribed standards for

co nducting an inspection must exist before there is probable

cause to issue an administrative warrant.

Consent to conduct an administrative search should normally be sought before seeking an administrative search warrant. As a practical matter and in light of the Fourth

Amendment ’ s requirement that a warrant specif y 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 t erms a “ closely regulated ” industry. F irearms and alcohol industries are among

t he most “ closely regulated ” industries. These types of business establishments may ordinarily be inspected without an

administrative warrant.

There are two justifications fo r allowing warrantless administrative searches of closely regulated industries. First, if an administrative inspection is to be effective and serve as a credible deterrent, then unannounced, even frequent, inspections are essential. Requiring an administr ative 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

, t he 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 e vidence._______________ Fourth Amendment 403 F. Searches at Airports and Sensitive Government

Facilities

S ecurity screening at airports and sensitive government

facilities generally consists of using magnetometers, explosives detectors, and x

- ray machines to examine individuals and their

c ontainers . It is clear that the use of both magnetometers and

x

- ray machines to scan indivi duals and their belongings constitutes a search implicating the Fourth Amendment. It is equally clear that a search conducted without a warrant is presumed to be unreasonable unless it falls within one of the recognized exceptions to the warrant requireme nt.

1. Searches at Security Checkpoints

Searches conducted at designated security checkpoints in airports and sensitive government facilities fall within the class of warrantless searches that are conducted as part of a general regulatory scheme in furtherance of an administrative purpose,

rather th a n as part of a criminal investigation to secure evidence of crime. The government has a substantial interest in protecting airline passengers, government employees, and government property; thus, searches of those who present themselves for entry into a controlled area are reasonable when carried out in accordance with the regulatory scheme.

2. Searches Prior to Security Checkpoints

- Terry Stops

Different standards apply to searc hes conducted at airport security checkpoints as opposed to those conducted in other areas of the airport. Persons within the general ly

accessible airport area typically may only be stopped and searched based upon the principles of Terry

, tested under a

ca se

- by

- case application of the reasonableness standard

. A more relaxed standard applies to those who actually try to

board an aircraft. T hose who actually present themselves for boarding on an air carrier will undergo a suspicionless

administrative search

. The same standard applies to security checkpoints at controlled government facilities. Persons may be_______________ Fourth Amendment 404 inspected pursuant to the regulatory scheme when they attempt to enter the facility, but not before.

3. The Point of No Return

Individuals wishing to fly on an airplane or enter a controlled government facility are required to participate in the

administrative screening process. Those not willing to undergo security screening have the option of choosing not to enter the security checkpoint . In fact, screening searches are valid only if they re cognize the right of a person to avoid a search by electing

not to enter the secured area.

While an individual has the right to avoid a search by choosing not to enter a controlled area , that right is not without

limits. Someone w ho begins the security screening process no longer has the right to avoid a search by electing to leave

. A rule allowing a passenger to leave without a search after an

inconclusive x

- ray scan would encourage t errorism by providing

a secure exit whenever d etection was likely . Also, government security personnel ha ve a duty to ferret out firearms

, explosive

devices , and other dangerous items carried by those who attempt to enter controlled areas. This duty could not be fulfilled if the agent was prohibited from conducting a visual inspection and limited hand search after an inconclusive x

- ray scan. Thus, one who chooses to avoid a search must elect to

leave before passing through a magnetometer or placing

b elongings on the x

- ray machine ’ s conveyor belt

.

G

. Border Searches

Border protection is a cor e task of the nations whose geographic limits are defined by them. T he government has a very strong interest in repelling invasion, intercepting dangerous persons and contraband, collecting duties

, and preventing the entry of diseases

. Courts generally f ind 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._______________ Fourth Amendment 405 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 c ategory of the intrusion, and (2) the geographic limits of the government ’ s border authority.

1

. Categories of Intrusions

Border intrusions are categorized into two types: routine

and non

- routine. The rea sonableness standard of the search depends upon the category of the search. Those standards apply regardless of the direction of travel. In other words, searches of travelers leaving the nation are subject to the same standards that apply to searches of arriving travelers.

(a) Routine border search

i. scope

The scope of a routine border search is determin ed, at least in part, by the traveler ’ s own reduced expectation of privacy when crossing a border. Travelers arriving at a border checkpoint expect to: (1) be briefly detained; (2) have their vehicles and luggage opened and visually searched; and (3) be asked to remove their topcoats and empty their pockets. Although the following required actions are slightly more intrusive, they are still within the scope of a routine border search: (1) remove shoes; (2) empty the contents of wallets or purses; and (3 ) lift shirts or skirts.

ii. basis

You may conduct a border search even when you have no suspicion that the traveler is violating the law. Your agency policies may set some restrictions on you to conduct such

searches and choose which travelers to searc h. Violating those restrictions may expose you to disciplinary action, but will not usually result in suppression of any evidence found._______________ Fourth Amendment 406 (b) Non

- routine border search

i. scope

The scope of a non

- routine border search is also determined at least in part, by the traveler ’ s own expectations. Some inspections are a customary part of crossing an international border. Others are very intrusive and therefore

non

- routine. A full strip search, an X

- ray examination of the body, a demand to remove an artificial leg and a body cavity search are examples of non

- routine border searches. Certain

detaile d searches of vehicles and other belongings may also be

non

- routine. Detailed disassembly and partial destruction of personal effects and drilling holes in car bodies are non

- routine border searches. Finally, lengthy detentions of persons

– those lasting hours rather than minutes

-- often are considered non

routine seizures of the individual.

ii. basis

At a minimum, you must have reasonable suspicion of a

violation for non

- routine border searches and seizures. Some courts have required more. In one ca se, 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 bal loon 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 t he cavity was being used to conceal contraband. Sealed letters which apparently contain only correspondence cannot be opened without consent or a search warrant

.

2

. Geographic limits of the border

Border search a uthority 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)_______________ Fourth Amendment 407 the actual border; (b) the functional equivalent of the border; and (c) the extended border. Pe rsons and objects do not have to be intercepted within inches of the border, and border stations do not have to directly abut the border. But mere entry of a person or object into the United States does not mean that that authority to conduct a border sea rch persists no matter where and when that person or object is discovered by law

enforcement.

(a) The actual border

A border search can be conducted at the actual land

border between the United States and Canada or Mexico. Determining the nation ’ s sea borders over water is more complex. The air border extends above the surface from the

nation ’ s land and sea borders.

(b) The functional equivalent of the border

Stopping vessels on the ocean, or aircraft in midair, is difficult if not impossible. It is more practical to wait until the ship has docked or the aircraft has landed. Sometimes seaports and airports receiving international shipments and passengers are many miles inland from the nation ’ s actual borders. For example, ships departing Singapore may first dock in Philadelphia (well inland on the Delaware River), and flights leaving P aris may first touch American soil in Kansas City. In such situations, the Philadelphia dock and the Kansas City airport are considered the functional equivalent of the border. If the following requirements are met, you may lawfully conduct

border searc hes at these functional equivalents of the border.

i. Persons and objects entering the country

You may stop and search persons and objects entering the United States if the following conditions exist:

**•** You are reasonably certain that a nexus exists

betwe en the person or object and either a border

crossing by them or contact by them with something that has itself crossed the border;_______________ Fourth Amendment 408 **•** You are reasonably certain that no material change has occurred to the object or person since this nexus has formed;

and

**•** You stop and/or search at the first practical detention point after the nexus has formed.

ii. Persons and objects leaving the country

You may stop and search persons and objects leaving the United States if the following conditions exist:

**•** You are reasonabl y 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;

**•** You are reasonably certain that no material change will occur to the object or person before this nexus has formed;

and

**•** You stop and/or search at the last practical detention point before the nexus has formed.

iii. Other applications of the functional equivalent of the border concept

This concept has been held to apply to searches and

s eizures 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 borde r 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 ve ry limited_______________ Fourth Amendment 409 circumstances, foreign merchandise held in a Foreign Trade Zone for purposes other than those listed in the Foreign Trade

Zone Act of 1934.

(c) The extended border

Even if the border or its functional equivalent has been crossed some time before, certain federal officers can conduct a border search if they can a rticulate reasonable suspicion that criminal activity is afoot. You cannot assert extended border search authority unless:

**•** You are reasonably certain that a nexus exists between the person or object and either a border

crossing by them or contact by them with something that has itself crossed the border;

**•** You are reasonably certain that no material change has occurred to the object or person since this nexus has formed;

and

**•** You have reasonable suspicion that criminal activity will be uncovered by the sto p or search.

Extended border search authority is sometimes relied upon when agents follow smugglers from the border to their in

country rendezvous point, to catch other members of the smuggling conspiracy waiting there._______________ Fourth Amendment 410 

### NOTES_______________ Government Workplace Searches 411 

## Chapter Ten

Government Workplace Searches 1

I. I NTRODUCTION

................................ ................................ . 411

II. D EFINING THE “W ORKPLACE ”

................................ ............. 412

III. I S I T A “S EARCH ” U NDER THE F OURTH A M ENDMENT ?

............ 413

A. Does REP Exist?

................................ ............................... 413

1. Prior Notice to the Employee

................................ ........ 415

2. Common Practices and Procedures

.............................. 416

3. Openness and Accessibi lity

................................ .......... 417

4. The Position of the Employee

................................ ....... 418

5. Waiver of Rights

................................ ........................... 419

IV. W AS THE S EARCH R EASONABLE ?

................................ ........ 420

A. Searches for Work

- Related Pur poses

................................ . 421

1. Non

- investigatory purpose

................................ ........... 421

2. Work

- related misconduct investigations

....................... 421

3. “Reasonable” intrusions

................................ ............... 356

B. Searches for Evidence of Criminal Violations

.................... 423

C. “Dual

- Purpose” Searches

................................ .................. 424



## *****

I. Introduction

There are a variety of reasons why a government supervisor might l ook in a government employee ’ s workplace. A supervisor might wish to locate a needed file or document

, to discover whether the employee is misusing government property, such as a government

- owned computer

, or to look for

evidence of a crime, such as using the i nternet to download child pornography.

1 “Warrantless Workplace Searches of Government Employees” complete with case cites is available on the Legal Division website ( www.fletc.gov/legal ) at Downloads, Articles, and FAQs / Articles / Research by Subject / Fourth

Amendment

._______________ Government Workplace Searches 412 Is it a “search” under the Fourth Amendment w he n a government supervisor looks in an employee ’ s workplace? Does

the government employee have a reasonable expectation of privacy (REP) in the office, desk, compu ter, and /or filing

cabinet? If REP exist s , 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. Ortega 2 , it has fallen to lower courts to address many others.

As a government supervisor , when considering the search of a government employee ’ s work place

, use this two

- part analysis to simplify the proc ess. First, determine whether the employee has REP in the area or item to be searched. Second,

i f REP does exist, then determine if a search would be reasonable under the totality of the circumstances. Before turning to those issues, however, it is nece ssary to first define exactly what is meant by the term “ workplace. ”

I I. Defining t he “ Workplace ”

“ Workplace ” as defined i n O ’ Connor i ncludes 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 ca n be considered part of the workplace. As a general rule, a government employee ha s REP in personal belongings

, such as closed personal luggage, a handbag, or a briefcase , even when in the “workplace.” A public employee ’s private property may be conside red a part of the workplace whe n the employee is using the personally

- owned property as part of the workplace.

In the Seventh Circuit Court of Appeals case of Gossmeyer v. McDonald

, Gossmeyer was employed by the Illinois Department of Children and Family Services (DCFS) as a Child Protective Investigator. Her position required her to

2 This case is briefed in the companion book

, Legal Division Reference Book

._______________ Government Workplace Searches 413 investigate instances of child neglect, abuse, and sexual abuse

and to photograph evidence for use in court proceedings. Because of a lack of storage space, Gossmeyer, at h er own expense, purchased two storage cabinet s 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

warrant less search of Gossmeyer ’ s office, storage cabinet s, and

desk

. Gossmeyer asserted that the storage cabinet s she had personally bought were not part of the “ workplace .” T he court

refused to find an expectation of privacy in the cabinets simply

because Go ssmeyer 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. ”

II I

. Is It a “Search” Under the Fourth Amendment?

Under the Fourth Amendment, a “search” occurs when the “governm ent” intrudes upon an individual’s REP. Two concepts about this definition are important in the government workplace search context. First, the term “government” does not solely ref er 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

g overnment acts simply a s employer. Second, “motive” is not a component of the definition of “search.” An intru sion into a workplace REP is a “search” even when it is not a quest for

criminal evidence.

A. Does R EP Exist?

As with all Fourth Amendment analysis, t he first step is

to determine whether the government employee ha s REP in that_______________ Government Workplace Searches 414 area or item. REP exists when (1) an individual exhibits an actual expectation of privacy, and (2) that expectation is one that society is prepared to recognize as being reasonable. Katz

v. United States 3

. 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 it s nature and scope.

Government employees can, and often do, establish REP

in all or part of their government offices, desks, computers, and filing cabinets. A cursory glance into any government office will show that individual government employees typically expe ct some form of privacy, based on the intermingling of their personal and professional lives (e.g., pictures of kids on desks and diplomas on walls). To promote efficiency, many government agencies allow, if not encourage, individuals to perform some pers onal business, such as using a government telephone to make a personal phone call during a lunch hour

, while in a governmental workplace. Nonetheless, an expectation of privacy in a government workplace is different from, and indeed less than, a similar e xpectation in an

individual ’ s home. A government employee ’ s REP is limited by the operational realities of the workplace

. W hether an employee

has REP must be addressed on a case

- by

- case basis.

REP does not turn on the nature of the property interest

i n the searched area or item but on the reasonableness of the employee’ s privacy expectation. G overnment ownership of the property to be searched (e.g., a government

- owned computer assigned to a government employee) is an important

consideration ; but, i t d oes 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 workp l ace. Among the most important are the following:

3 This case is briefed in the companion book

, Legal Division Reference Book

._______________ Government Workplace Searches 415 1. Prior Notice To The Employee (Legitimate Regulation)

Prior notice, such as signs, personnel policies, and computer banners, advising government e mployees that their employer has retained rights to access or inspect ion, 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

, Simon s 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 g overnment computer, multiple searches of his hard drive were conducted from a remote location, resulting in the discovery of child pornograph y

. The court held that in light of the FBIS Internet policy Simons did not have a legitimate expectation of priva cy in the record or fruits of his Internet use. Through its language, this policy placed employees on notice that they could not reasonably expect that their Internet activity would be private.

In the Seventh Circuit Court of Appeals case of Muick v.

Gle nayre Electronics

, t he court noted that it was possible to

have REP in employer

- owned equipment furnished to an employee for use in the workplace. F or 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. I n this case

, Muick was employed by Glenayre at the time of his arrest for receiving and possessing child pornography on the laptop computer furnished to him by Gl enayre . Glenayre had announced that it could inspect the laptops that it furnished for the use of its employees

. This destroyed any REP that Muick might have had. As stated by the court:_______________ Government Workplace Searches 416 The laptops were Glenayre ’ s property and it could

attach whatever c onditions 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 res erving 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 provid es , in part,

that “ all departmental vehicles (to include all enclosed containers) sha ll be subject to search and inspection

... at anytime, day or night ” can defeat a claim of REP in a government vehicle.

2. Common Pra ctices and Procedures

Even in the absence of written policies and procedures,

a ctual office practices and procedures may eliminate REP in the workplace . An employer who actually conduct s search es or inspections dispel s in advance any expectations of privacy. Conversely, even when written policies and procedures exist, failure to implement them m ay permit a government employee

to establish REP in an area where one would otherwise not exist. For exampl e, 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 b oth a personal lock and a lock that had been issued by the department. There were no re gulations 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 infor mation that Speights had a

sawed

- off shotgun in his locker, supervisors opened t he 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 c ourt held that in the absence of regulations Speights had REP in the locker that_______________ Government Workplace Searches 417 could be defeated only if the police department had a practice of opening lockers with private locks without the con sent 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 ana logous cases have reached parallel conclusions. T he 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. ” N o reasonable expectation of privacy could be expected in an office or credenza

due to “ extremely tight security procedures, ” to include frequent scheduled and random searches by security guards. In both of these cases, the courts relied on specific regula tions and practices in finding that an expectation of privacy was not

reasonable.

3. Openness and Accessibility

There is no REP in areas that are, by their very nature,

“ open ” and “ public .” REP may exist in a private space (such as a desk) within an otherwise public space (such as a government building) . REP in an item or area i s more likely to exist when

that item or area is given over to an employee ’ s exclusive use.

L ocking office doors and t he use of passwords to restrict an employer ’ s access to computer files is evidence of the employee ’ s subjective expectation of privacy.

The more accessible the item or area is to others, the less likely that REP exists. Offices that are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work

- related visits may be so open to fellow employees or the public that no expectation of privacy is reasonable. Nevertheless, the fact that others may be permitted access to an employee ’ s office, desk, computer, or filing cabinet does not alone automatically destroy REP . Privacy

does n ot require solitude. The existence of a master key or a n employee ’ s failure to consistently shut and lock an office door_______________ Government Workplace Searches 418 does not automatically sacrifice any expectation of privacy in

that area.

T he Second Circuit Court of Appeals case of Leventhal v.

K napek 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 load ing unauthorized software on his g overnment 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 disciplin ary actions were completed, Leventhal filed suit alleging the warrantless search of his computer was a

violation of the Fourth Amendment. In find ing that he had REP in the computer, the court noted:

Leventhal occupied a private office with a door. He

ha d 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.

W hile suppor t personnel may have had access to

Leventhal ’ s computer at all times, “ there was no evidence that these searches were frequent, widespread, or extensive enough to constitute an atmosphere so open to fellow employees or the public that no expectation of pri vacy is reasonable. ”

4. The Position of the Employee

REP is less likely for jobs with high security

req uirements. REP is less likely in industr ies that are subjected to pervasive regulation to ensure the safety and fitness of its employees . REP is less likely in c ertain forms of public employment e ven with respect to p ersonal searches. Employees

of the U nited 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_______________ Government Workplace Searches 419 category. T he government ha s the power to regulate the conduct of its police offi cers 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 integr ity

. This interest in police integrity may justify some intrusions on the privacy of police officers which the Fourth Amendment would not

otherwise tolerate.

5. Waive r 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

. Em ployees 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 , p ostal 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 admi nistrative manual of the Postal Services noted that all property provided by the Postal Service

was “ at all times subject to examination and inspection by duly authorized postal officials in the discharge of their official

duties. ” Finally, the collective bargaining agreement for these employees “ provided for random inspection of lockers under specified circumstances. ” In light of the clearly expressed provisions permitting random and unannounced locker inspections under the conditions described above, th ere was no REP in the lockers

.

REP exists in the workplace when the employee has a subjective expectation of privacy that is reasonable, based on the totality of the circumstances (especially those discussed above)._______________ Government Workplace Searches 420 I V

. If R E P Does Exist, I s an Intrusion Reasonable?

Even though there is a strong preference that searches be performed pursuant to warrant s , 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 obligat ion to follow the mand ates of the Fourth Amendment;

on the other is the responsib ility 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 ’ R EP against the
government ’ s need for supervision, control, and the efficient operation of the workplace. As noted by the Supreme Court in

O ’ Connor :

Employers and supervisors are focused primarily on the need to complete the government agency ’ s work in a prompt and efficient manner. An employer may have need for correspondence, or a file or report available only in an employee ’ s office while the employee is away from the office. Or ... employers may need to safeguard or identify state property or records in an office in connection with a pending investigation into suspected employee misfeasance. In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee ’ s office, desk, or file cabinets for

a work

- related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who

would otherwise have no reason to be familiar with such procedures, is simply unreasonable.

F or public employers

, there is an exception to the probable cause and warrant requirements

. In O ’ Connor , the Supreme Court outlined two basic categor ies of workplace searches: (1) s earches for work

- related purposes (either non

investigatory or for the purp ose of investigating workplace_______________ Government Workplace Searches 421 misconduct), and (2) searches for evidence of criminal

violations. S pecial needs, beyond the normal need for law enforcement, make the probable cause requirement impracticable for legitimate work

- related, non

- investigatory

i ntrusions as well as for investigations of work

- related

misconduct. Even though not a component of the definition of “search,” motive is an essential factor in determining the reasonableness of a government workplace intrusion.

A. Searches for Work

- Related Purposes

For the probable cause and warrant exception to apply,

the search must be work

- related. This element limits the exception to circumstances in which government supervisors who conduct the search act in their capacity as employers,

rather than law enforcers. W ork

- related intrusions by public employers are justified by the need for the efficient and proper operation of the workplace. Work

- related searches typically fall within one of two similar, but distinct, circumstances.

1. Non

- investigatory purpose

A warrantless search of a government employee ’ s work place 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 finding a file , a piece of office correspondence , a book, or a floppy disk . For this reason, public employers must be given wide latitude to enter employee offices for work

- related,

non

- investigatory reasons.

2. Work

- related misconduct investigations

A warrantless search of an employee ’ s workspace may be performed during an investigation into allegations of work

related misconduct, such as improper computer usage. As noted by the Supreme Co urt in O ’ Connor :

Public employers have an interest in ensuring that their agencies operate in an effective and efficient_______________ Government Workplace Searches 422 manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work

- related mi sfeasance 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 transl ated into tangible and often irreparable damage to the agency ’ s work, and ultimately to the public interest.

3. “ Reasonable ” intrusions

In either of the above situations, the search must be

“ reasonable ” based on the totality of the circumstances. Generally, a government supervisor’s search of an employee ’s

REP is reasonable when the measures used are rea sonably 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

th e equivalent of the “ reasonable suspicion ” standard outlined by the Supreme Court in Terry v. Ohio 4

.

(a) Justified at the Inception

A wa rrantless search of an employee’s REP for a non

investigatory, 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 gov ernment employee ’ s REP for evidence of

work

- related misconduct will be “ justified at its inception ” when

4 This case is br iefed in the companion book

, Legal Division Reference Book

._______________ Government Workplace Searches 423 there are reasonable grounds for suspecting that the search will turn up evidence of such misconduct. A supervisor must have an articulable reason (or reasons) for believing that work

- related

materials or evidence of work

- related misconduct are located in the place to be searched.

(b) Permissible In Scope

A search is “ permissible in scope ” when the measures

used are reasonably related to the objectives of the search and not excessively intrusive in light of the nat ure 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 boo t up the computer when looking for a highlighter.

(c) Plain View Seizures

The plain view doctrine allows s eiz ur e of evidence

discovered while lawfully inside an REP area. There are three requirements for a permissible plain view seizure of evidence. First, you must lawfully be in a position to observe the item; second, the incriminating nature of the item must be immediately apparent; and third, you must have a lawful right of access to the object itself.

Criminal evidence discovered during a government workplace search for a work

- related purpose will be admissible as a plain view seizure so long as the se arch meets the criteria

discussed above.

B. Searches for Evidence of Criminal Violations

Although i n O ’ Connor the Supreme Court specifically

declined to

, s everal lower courts have address the appropriate standard for searches when an employee is being investigated

for criminal misconduct that does not violate some workforce policy

. They have found that the rationale for the lesser burden

O ’ Connor places on public employers is not applicable in a_______________ Government Workplace Searches 424 purely criminal investigation. Where the sole motivation behind a workplace search is to uncover evidence of criminal wrongdoing, the appr opriate standard is probable cause.

The line between a work

- related search and a s earch for

criminal evidence may be clear in theory, but is often blurry in fact. This is especially true whe n the personnel conducting the search are members of an agency o r department that is undeniably in the business of investigating the violation of the

criminal laws. T he 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

i nvestigator 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 Four th 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 r eason 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 s earch.

C. “Dual

- Purpose” Searches

T here are s ituations in which a government employee ’ s misconduct might al so be criminal. For example, a government employee may be receiving and downloading child pornography

on a government computer. T his conduct could (and most likely does) constitute a violation of workforce policy rules on appropriate government computer/ Internet usage , and it is clearly criminal in nature

. In such a situation, a public employer has two purposes in conducting a search: (1) to_______________ Government Workplace Searches 425 uncover evidence of the administrative violation, and (2) to uncover potential criminal evidence.

When a governme nt 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 work place ? Because of the work

related misconduct that is occurri ng, 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 confront ed with mixed

- motive

searches.

E ven assuming that the dominant purpose of the

warrantless search i s to acquir e evidence of criminal activity,

the search remains within the O ’ Connor exception to the probable cause and warrant requirement . The government do es 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 i s also evidence of a

crime._______________ Government Workplace Searches 426 

### NOTE S_______________ Officer Liability 427 

## Chapter Eleven

Officer Liability

I. I NTRODUCTION

................................ ................................ . 428

A. Civil Rights

................................ ................................ ....... 428

B. Civil Liability

................................ ................................ ..... 429

1. Definition of a Tort

................................ ....................... 429

2. Torts Versus Crimes

................................ .................... 429

II. C RIMINAL R EMEDIES

................................ ......................... 430

A. Title 18 U.S.C. § 241, Conspiracy Against Rights

.............. 430

1. Elements of Crime One

................................ ................ 431

2. Elements of Crime Two

................................ ................ 431

B. Title 18 U. S.C. § 242, Deprivation Under Color of Law

...... 432

1. Elements

................................ ................................ ..... 433

2. “Under Color of Law”

................................ .................... 433

3. “Specific Intent (Willfully)”

................................ ............ 434

III. C IVIL R EMEDIES

- C ONSTITUTIONAL T ORTS

........................... 434

A. 42 U.S.C. § 19 83 (Deprivation of Rights)

........................... 435

B. Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics

................................ ................................ ....... 436

IV

. C OMMON I NCIDENTS A ND I MMUNITY

................................ .... 437

A. Arrests and Searches Without Probable Cause

.................. 437

B. False or Misleading PC Affidavit

................................ ........ 438

C. Excessive Force Claims

................................ ..................... 439

D. Failure to Intervene When Excessive Force is Used

........... 440

E. Immunity For Constitutional Violations

............................ 441

1. Sovereign Immunity

................................ ..................... 441

2. Absolute Immunity

................................ ...................... 441

3. Qualified Immunity

................................ ...................... 442

V. C IVIL L IABILITY F OR T ORTS

................................ ............... 443

A. Negligent Torts

................................ ................................ .. 443

1. Duty

................................ ................................ ............ 444

2. Breach of Duty

................................ ............................. 445

3. Causation

................................ ................................ .... 446

4. Damages

................................ ................................ ...... 446

B. Intentional Torts

................................ ............................... 447

1. To the Person

................................ ............................... 447

2. To Property

................................ ................................ .. 448_______________ Officer Liability 428 VI. T HE F EDERAL T ORT C LAIMS A CT (FTCA)

............................. 448

A. Negligent Torts

................................ ................................ .. 448

B. Intentional Torts

................................ ............................... 449

C. Scope of Employment

................................ ........................ 449

1. The Federa l Good Samaritan Act

................................ . 450

2. Government Vehicles

................................ ................... 451

3. Certification of Within the Scope of Employment

......... 452

D. Initiating a Civil Lawsuit under the FTCA

.......................... 452

E. Defenses

................................ ................................ ........... 453

1. To Negligent Tort s

................................ ........................ 453

2. To Intentional Torts

................................ ..................... 453



## *****

I. Introduction

Law enforcement work is dangerous. Contact with the public is con stant, often confrontational and charged with emotion. Within this context, you are responsible for preventing and investigating crimes that may include violations of “ civil rights. ” Further, the Constitution and Federal laws protect against the unjustifi ed infringement of those civil rights by law

enforcement officers themselves.

You must perform your duties in accordance with the Constitution and Federal law. You may be both civilly and criminally liable for violations of civil rights if you discharge your duties unreasonably, recklessly, or indiscriminately, or exceed the scope of your employment and authority

.

A. Civil Rights

“ Civil rights ” are guaranteed to individuals by the

Constitution and protected by Federal law. Constitutionally enumerated civil rights include, but are not limited to, the First

Amendment ’ s freedom of speech, freedom of religion, and freedom of assembly; the Fourth Amendment ’ s protection against unreasonable searches and seizures; the Fifth

Amendment ’ s right of due process and the protection against self incrimination; and the Eighth Amendment ’ s protection against cruel and unusual punishment. Federal statutes add to_______________ Officer Liability 429 the list of civil rights, including rights established in the areas of education, employment, voting, and access to public facilities

and accommodations.

B. Civil Liability

1. Definition of a Tort

The civil liability of a federal law enforcement officer is predominantly an issue of state tort law. Broadly speaking, a

tort is a civil wro ng, other than breach of contract, for which the court will provide a remedy in the form of an action for damages. The remedy can involve money damages or an injunction. An injunction is an order from a court that prohibits someone from doing something.

2. Torts Versus Crimes

Torts differ from crimes in many respects, primarily in the interests affected by each and in the remedies afforded by each. A crime is an offense against the publ ic 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 interes ts 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. Crimin al 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 def endant who loses a lawsuit may be required to pay money damages (usually the amount_______________ Officer Liability 430 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 charg ed beyond a reasonable doubt. In a civil action, the plaintiff must prove each and every element of each tort alleged by a preponderance of the evidence.

Although there are significant differences between crimes and torts, the remedies are not mutually e xclusive. The same act or conduct can be the subject of both criminal prosecution

and civil suit.

II. Federal Criminal Remedies

Congress passed criminal statutes designed to punish

those who violate the civil rights of others.

A. Title 18 U.S.C. § 241 1 , 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 consp ire 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 becaus e of his having so exercised the same; or

1 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Officer Liability 431 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 pe nalties

, including fines, imprisonment, and in certain instances, death.

There are two distinct crimes under this statute.

1. Elements of Crime One

The elements of the first crime are:

**•** A conspiracy

**•** To injure, oppress, threaten or intimidate

**•** Any person

**•** In the exercise or enjoyment of any Constitutional or Federal civil right

The conspiracy under this statute is an agreement between two or more persons to injure, oppress, threaten, or intimidate any person in the exercise of a constitutional or federally guaranteed right. Section 241 differs from 18 U.S.C. § 371, the general federal conspiracy statute, by not requiring an overt act; that is, an act in furtherance of the conspiracy. Under § 241, the agreement by two or more persons, coupled with the specific intent to violate a person ’ s civil rights, is

sufficient to establish the crime. “ Any person ” should be taken literally and includes citizens, visitors, legal and even illegal

aliens.

2. Elements of Crime Two

The elements of the second crime are:

**•** Two or more persons go in disguise on the highway or property of another_______________ Officer Liability 432 **•** To prevent or hinder

**•** Any person

**•** In the exercise or enjoyment of any Constitutional or Federal civil right

The historical context of this law is apparent. It was specifically designed to deal with the activities of the Ku Klux Klan. The crime is a felony, punishable by up to death.

B. Title 18 U.S.C. § 242 2 , Deprivation of Rights Under

Color of Law

This statute empowers the Federal Government to

prosecu te 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

pa rt:

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 b y 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 pr ovides penalties including fines, imprisonment, and in certain instances, death.

2 This statute can be found in its entiret y in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Statutes.”_______________ Officer Liability 433 1. Elements

The elements of this crime are:

**•** An activity “ under color of law ”

**•** With th e specific intent (willfully)

**•** To deprive any person

**•** Of any Constitutional or Federal civil right

2. “ Under Color of Law ”

“ Under color of law ” necessarily involves actions on the part of a law enforcement officer or public official, but not everything done by a law enforcement officer is done “ under

colo r of law. ” If status as a law enforcement officer did not materially facilitate the wrong committed, the officer is deemed to have acted in a purely private capacity, and will not be criminally liable under this statute.

Certainly, when an officer does an act of a general law enforcement nature, such as make an arrest, conduct a search, etc., the officer will be considered to have acted “ under color of

law. ” Whether the officer was in uniform or “ on duty ” are important, but not controlling factors in dete rmining 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 powe r, 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 m antel of authority by_______________ Officer Liability 434 disavowing it, and thereby avoid prosecution under this statute. Therefore, an officer can act outside the scope of employment and even contrary to law, policy and practice and still be

determined to have acted “ under color of law. ”

Private persons can act “ under color of law ” if they act in concert and jointly engage with law enforcement in the violation of civil rights.

3. “ Specific Intent (Willfully) ”

It is not enough that the officer intended to do the act that resulted in the deprivation of a constitutional or Federal civil right. To convict an officer of violating § 242, the government must prove the officer possessed specific intent to deprive a person of a civil right. There must be the specific intent to punish or prevent the exercise of a constitutionally guaranteed right.

“ Willfully ” implies not merely the cons cious 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 circums tances.

III. Federal Civil Remedies

- Constitutional Torts

In addition to criminal prosecution, tort actions against

the Fede ral 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 s tates).

Constitutional tort claims may be asserted against a law enforcement officer under two separate, but related, basis

._______________ Officer Liability 435 A. Title 42 U.S.C. § 1983 3 (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

Constit ution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

This statute provides a civil cause of action against state
and local law enforcement officers who, acting under color of

law , deprive an individual of any civil right. It is not a criminal statute, but a civil one that permits state and local law enforcement officers to be civilly sued in federal court for civil rights violations.

In order to establish a civil lawsuit claim u nder § 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)

3 This statute can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Sta tutes.”_______________ Officer Liability 436 **•** 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 F ederal civil right is required. The plaintiff must only prove intent to do the act which results in the deprivation of civil rights. It must

be a volitional act and not accidental or the result of

misadventure.

The result of an action under this statute may be judgment for actual (compensatory) damages, punitive damages, attorney ’ s fees, and/or injunction.

B

. Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics

Until the 1971 Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics 4 , a person whose civil rights were violated by a federal officer or

agen t was unable to sue a federal agent in federal court. 42 U.S.C. § 1983 was not available since by its language, it applied only to civil rights violations committed by state and local

officials.

In the Bivens case, Mr. Bivens alleged that agents from

th e Federal Bureau of Narcotics (now the Drug Enforcement Administration) arrested him and searched his apartment

without a warrant and that his arrest was made without probable cause. Mr. Bivens filed a civil suit against the federal agents in federal cour t. Bivens argued that the federal agents violated his Fourth Amendment Constitutional right to be safe

in his own home from unreasonable searches and seizures.

4 Cases named in this chapter without a case cite are briefed in the companion book, Legal Division Reference Book._______________ Officer Liability 437 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 Suprem e Court also stated that since there was no remedy in state law for wrong doing committed by federal agents, the Court should create such a remedy. Based upon the Bivens decision, federal agents are now subject to civil suits alleging intentional civil ri ghts

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 Constit utional rights. It is commonly called a “ Bivens Action. ” The Supreme Court has limited Bivens actions to only certain Constitutional violations. Specifically, the Supreme Court has held that only violations of rights protected by the Fourth Amendment, Fi fth Amendment (Due Process), or Eighth Amendment (Cruel and Unusual Punishment) can serve as the

basis for a Bivens lawsuit to recover damages.

IV. Common Incidents of Civil Liability under Bivens and the Defense of Qualified Immunity

The following are the most common types of Constitutional torts alleged against federal officers under

Bivens

.

A. Unlawful Arrests and Searc hes Without Probable

Cause

In Bivens , the Supreme Court held that federal law enforcement officers are civilly liable for violations of the Fourth Amendment. Thus, when a federal law enforcement officer makes an arrest without probable cause or unlawfully conducts a search, a Bivens suit can be filed against the officer

._______________ Officer Liability 438 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 reasona bly 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 mi stakenly 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 subjec tive beliefs about the

search are irrelevant.

B. Knowingly Submitting a False or Misleading

Affidavit For Search or Arrest Warrants

In Franks v. Delaware the Supreme Court held that a law enforcement officer violates the Fourth Amendment if, in order

to obtain a se arch 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:

Wher e the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant_______________ Officer Liability 439 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 ev idence, 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 cau se 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 conte xt, 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 la wsuit 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 Bive ns suit may be properly brought, because the law enforcement officer cannot be said to have acted in an objectively reasonable manner. Qualified immunity cannot be asserted.

C. Fourth Amendment Excessive Force Claims

In Graham v. Connor the Supreme Court established the

prop er framework for analyzing an individual ’ s claim that a law enforcement officer used excessive force. The Supreme Court has long recognized that the right to make an arrest or_______________ Officer Liability 440 investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to a ffect 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 rega rd to the officer ’ s underlying intent or

motivation. This “ reasonableness ” analysis must be judged from the perspective of a reasonable officer on the scene, and not with the 20/20 vision of hindsight.

D. Failure to Intervene When Excessive Force is Used

An individual has the right under the Fourth Amendment to be free from the excessive use of force by law enforcement officers. A law enforcement officer has an affirmative duty to intercede on the behalf of a person whose consti tutional 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 exc essive 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 necess ary 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 li able for his inaction . An officer who fails to intercede is liable for the preventable harm caused by the

actions of the other officers when that officer observes or has reason to know: (1) that excessive force is being used; or (2) that

a citizen has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a law enforcement official. Thus, if a law enforcement officer fails or

refuses to intervene when a constitutional violation such as an unprovoked beating takes place i n his presence, the officer can

be held liable under Bivens

._______________ Officer Liability 441 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

th e 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 dec iding cases brought under Bivens

.

E. Immunity For Constitutional Violations

1. Sovereign Immunity

Sovereign (governmental) immunity has its common law roots in England under the theory that “ the King can do no

wrong. ” This theory was an outgrowth of the divine rights of kings, and, in effect, prevented any and all lawsuits against the

Crown.

When the individual sovereign was replaced by the modern state, this principle was adopted to provide that a suit against a ruling government without its consent was inconsistent with the very idea of supreme executive power. In

the United Sta tes, public policy and necessity dictate that the United States as sovereign is immune from suit unless it

consents to be sued . T he terms of its consent to be sued in any

court define the court ’ s jurisdiction to entertain the suit.

2. Absolute Immunity

“ Absolute immunity ” avoids personal civil liability. It is conferred because of the status or position of the favored defendant. Officials, such as legislators in their legislative functions, judges in their judicial functions, and certain executive branch officials (the President, executive officer_______________ Officer Liability 442 engaged in adjudicative functions, and prosecutors), whose special functions or constitutional status requires comple te protection from suit, may assert the defense of absolute immunity.

3. Qualified Immunity

This type of immunity applies to law enforcement officers.

When a law enforcement officer is sued for a constitutional tort, the officer may be entitled to qualified immunity. Qualified immunity (sometimes called “ good faith ” immunity) is an affirmative defense that can protect the officer from individual

civil liabilit y. It must be raised by the defendant (officer). Qualified immunity shields government officials from personal liability for civil damages provided: (1) they act reasonably and in good faith; and (2) their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable law enforcement officer would have known.

T he 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 du ring 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 Wild life Service agents took CNN along when they served a search warrant at the Berger ranch. Both followed established agency ride

- along policies.

The Supreme Court had two questions to decide. First,

was there a Constitutional violation? The Supreme Cour t 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

exe cution. In other words, these federal agents had committed

a Constitutional tort._______________ Officer Liability 443 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 te st to be applied

is one of “ objective reasonableness. ” The Supreme Court held that the agents acted reasonably and in good faith, relying on their established policy for media “ ride

- alongs ” and the fact that

media ride

- alongs were a widespread practice.

In assessing whether the right that was allegedly violated

was “ clearly established, ” the Court s aid 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 duri ng 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 laws uit alleging a constitutional tort, officers will not be held personally liable as long as their actions are reasonable in light of current law.

V. Civil Liability Under State Tort Principles

As stated previously, tort actions against the Federal government and its employees and agents can generally be classified as constitutional torts (based on a violation of rights

foun d 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) intentiona l torts (such as battery, assault, and false imprisonment)

.

A. Negligent Torts

For Federal law enforcement officers, negligence is the most frequently occurring of the state law torts due the operation of government motor vehicles. The elements of an_______________ Officer Liability 444 action for negligence are: Duty; Breach of Duty; Causation; and Damages.

1. Duty

Generally, there is n o 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

liabili ty 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
expect ed 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, howev er, 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 whe n they assure a caller that they are responding to their request for assistance. Failure to do so can result in civil liability when reliance on those specific promises of protection causes the person to forego steps to protect themselves.

A special rela tionship 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, f ederal officers were found to be liable when, while walking a disabled and intoxicated 

### Elements of a Negligent Tort

**•** Duty

**•** Breach Of Duty

**•** Causation

**•** D amages_______________ Officer Liability 445 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 C ourt 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 breac hed that duty by failing to hold on to her securely to prevent her stumbling an d 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 liabil ity exposure, many states have

enacted “ Good Samaritan ” statutes. These statutes are designed to encourage medical professionals to intervene to save lives and prevent serious injury when they would otherwise have no legal duty to do so. These laws protect licensed doctors, nurses, paramedics, EMTs, and similarly trained and skilled persons from civil liability when they voluntarily render emergency treatment. They are still liable, however, for gross negligence.

2. Breach of Duty

Breach of duty is proven by showing that the defendant failed to meet the app licable standard of care. What is the applicable standard of care? F or 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 simil ar circumstances? ”

Sometimes, however, special standards will apply requiring a person to exercise care beyond that which would be expected of an ordinary “ reasonable person. ” For example, professionals are required to possess and exercise the_______________ Officer Liability 446 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 violat ion 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 violat ion of agency policies and practices.

3. Causation

The defendant ’ s act that breached the duty of care must be the cause of plaintiff ’ s damages.

4. Damages

The plaintiff must suffer some form of damage. In civil suits, the plaintiff may recover for the personal injury or property damage caused by defendant ’ s breach of duty. The

recover y is generally compensatory, designed to make the injured party whole by reimbursing actual expenses and providing for pain and suffering and permanent injury and damage. It may also include attorney ’ s fees and costs of litigation. In intentional torts, it may also include punitive damages designed to punish the wrongdoer and deter future

similar conduct._______________ Officer Liability 447 B. Intentional Torts

The elements of an

intentional tort are identical to those of a negligent tort except that the act that causes the damages must

be willful and intentional.

Intentional torts can be against a person, or agains t property. Among

the most common

intentional torts in each category are the following:

1. Intentional Torts to the Person

**•** Battery

- a harmful or offensive contact with the plaintiff ’ s person by the defendant

.

**•** Assault

- a reasonable apprehension in the plaintiff

of an immediate harmful or offensive contact with his person by the defendant

.

**•** False Imprisonment

- the defendant ’ s confining or restraining the plaintiff to a bound ed area; in certain cases confining the plaintiff ’ s personal property may give rise to a suit alleging false imprisonment

.

**•** False Arrest

- a special category of false imprisonment involving the invalid use of the

defendant ’ s legal authority to confine the plaintiff

.

**•** Intentional Infliction of Emotional Distress

- the infliction of emotional distress on the plaintiff by a defendant who has engaged in extreme and outrageous conduct

. 

### Elements of an

Intentional Tort

**•** Duty of Care

**•** Willful /

Intentional Act

Which Breaches Duty

**•** Causation

**•** Damages_______________ Officer Liability 448 2. Intentional Torts to Property

**•** Trespass (damage) to Land (real property)

**•** Trespass (damage) to Chattels (personal property)

**•** Conversion (personal property) (theft)

V I

. 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

sco pe 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 t orts of Federal employees with an appropriate remedy against t he 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 con tracto r 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 o f the United States, members of the National Guard while engaged in training or duty, and persons acting on behalf of a Federal agency in an official capacity.

A

. Negligent Torts

The FTCA covers lawsuits for negligent or wrongful acts or omissions of Federal employees w ithin the scope of their_______________ Officer Liability 449 employment that cause injury, loss of property, personal injury or death. This remedy against the United States is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim. In those cases where the Federal government has waived its sovereign immunity from torts, a tort action against the United States is the sole remedy available to a plaintiff . A suit against the indiv idual f ederal employee personally is precluded.

In effect, the United States has partially waived sovereign immunity. The United States has consented to be liable in the same manner and to the same extent as a private individual

under like circumstances while reserving the right to any other

defense to which it is entitled.

B

. Intentional Torts

The FTCA specifically does not apply to intentional torts committed by Federal employees who are not law enforcement

officers . However, intentional torts such as a ssault, battery, false imprisonment, false arrest, and malicious prosecution are common allegations against law enforcement officers. As a result, the Act was amended to provide additional protection for

federal “ investigative and law enforcement officers

. ”

The term “ investigative or law enforcement officer ” means any officer of the United States who is empowered by law to: (1) execute searches; or (2) seize evidence, or (3) make arrests for violations of Federal law. Any one or more of these criteria will qualify. The FTCA now provides that if the act was that of an investigative or law enforcement officer, the government will permit itself to be sued with respect to assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process.

C

. Scope of Employment

“ Scope of employment ” is defined by determining whether the employee was performing the employer ’ s (Federal_______________ Officer Liability 450 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 ce rtain 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 cri minal 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 m a y grant varying degrees, up to full, of peace officer status to Federal law enforcement officers, many agency and department policies prohibit o fficers and agents from getting directly involved in state and local incidents.

1

. The Federal “ Good Samaritan ” Act

Due to the vague nature of “ scope of employment ” and the

re luctance 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 enforcemen t officers as defined in 5 U.S.C. § 8401(17).

Not every federal law enforcement officer is covered, but for those that are, the Act provides that they are within the scope of employment when taking reasonable action, including the use of force: (1) to pro tect an individual in the presence of_______________ Officer Liability 451 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 reaso nably 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 federa l 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 Unit ed States indemnify the officer or agent for any damages should

the claim be successful? There are no clear answers. There remains a real risk that intervening in purely state and local incidents will be outside the scope of employment and outside the purview of the FTCA, exposing the individual officer or agent to personal, civil liability.

2. Scope of Employment and Government Vehicles

Another c ommon 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. Stat e 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 emp loyment.

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 FOL LOW pertinent agency policies and procedures. Once the facts are determined, the law of the state where the alleged injury occurred is applied to decide whether the employee was “ within the scope of employment. ”_______________ Officer Liability 452 3

. Certification That Employee Was Acting Within the Scope of Employment

When presented with a claim, t he agency makes the

initial decision on scope of employment . If the agency refuses to certify that the employee was acting within the scope of employmen t, 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 wil l be substituted as the party defendant. If the Attorney General refuses to certify scope of employment, the employee may petition the U.S. District Court to find and certify that the employee was acting within the scope of employment.

D

. Initiating a Ci vil 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 conclu sive, 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 claiman t 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 cla im against the United States is barred unless it is presented in writing to the appropriate federal agency within two years of the date of the injury or damage. Suit may be filed beyond that two year limit so long as it is within six months of

the date of the final denial of the claim by the agency to which it was presented._______________ Officer Liability 453 The absolute immunity afforded Federal employees under the FTCA against personal liability for torts does not apply in a

Bivens action alleging a constitutional tort. Constitutional torts are never within the scope of employment. Instead, the federal officer will likely rely upon qualified immunity regarding a

constitutional tort claim.

E. Defenses

There are several common defenses available to every defendant to the extent that the defenses are recognized in the

state where t he tort occurred.

1. To Negligent Torts

**•** Assumption of Risk

- If a plaintiff has voluntarily placed himself or herself in a position of ha rm, 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 culpabil ity of each.

2. To Intentional Torts

**•** Consent

- Knowing and voluntary consent by plaintiff will bar recovery against defendant. However, defendant ’ s actions must stay within the

bounds (scope) of the consent.

**•** Self

- Defense and Defense of Others

- Reasonable force may be used to defend against harmful or_______________ Officer Liability 454 offensive bodily contact. “Reasonable force” is a fact intensive concept. The general rule is that only such minimal force as is necessary to prevent the

har m is allowed.

**•** Necessity

- A defendant who acts to prevent a threatened injury from some force of nature, or other cause, independent of the defendant is acting under necessity. Such a defendant may not be liable for a lesser harm committed to prevent or avoid a greater harm._______________ Searching and Seizing Computers 455 

## Chapter Twelve

Searching and Seizing Computers

and Other Electronic Devices

I. I N TRODUCTION

................................ ................................ . 456

II. P RIVATE S EARCHES

................................ .......................... 456

III. REP IN C OMPUTERS

................................ .......................... 456

A. Generally

................................ ................................ .......... 456

B. Losing REP

................................ ................................ ....... 457

1. Exposure to the Public

................................ ................. 457

2. Stolen Computers

................................ ........................ 457

3. Third Party Possession

................................ ................. 458

IV. E XCEPTIONS TO THE W ARRANT R EQUIREMENT

...................... 458

A. Consent

................................ ................................ ............ 458

1. Requirements

................................ .............................. 458

2. Scope of a consent search

................................ ............ 459

3. Third party consent

................................ ..................... 459

4. Implied consent and network banners

......................... 460

B. Exigent Circ umstances

................................ ..................... 461

C. Plain View

................................ ................................ ......... 462

D. Search Incident to Arrest

................................ .................. 463

E. Inventory Searches

................................ ........................... 465

V. P REPARING A S EARCH W ARRANT

................................ ......... 466

A. The Need for Pre

- Search Information

................................ 466

B. Where to Look and What to Look For

................................ 467

1. The Independent Component Doctrine

......................... 467

2. W hat to Look For

................................ ......................... 468

C. Justifying Off

- Site Searches

................................ .............. 469

D. The Need for Multiple Search Warrants

............................. 471

VI. E XECUTING A S EARCH W ARRANT

................................ ......... 472

A. Technical Assistance During Execution

............................. 472

B. Knock an d Announce

................................ ........................ 473

C. Time Frames Governing Retention of Seized Computers

.... 474

VII. A UTHENTICATION OF C OMPUTER I NFORMATION

..................... 475



## *****_______________ Searching and Seizing Computers 456 I. Introduction

The Fourth Amendment applies when searching computers and other electronic devices. This chapter will refer to basic Fourth Amendment concepts in summary fashion.

There fore, i f you are unfamiliar with basic Fourth Amendment concepts, first review the Fourth Amendment chapter of this

student handbook.

Searching a computer without a warrant is legally permissible in one of three situations: (1) when the search is

conducte d by a private (non

- governmental) entity; (2) when government conduct does not intrude into an area where an individual has a “reasonable expectation of privacy” (REP); or (3) when a recognized exception to the warrant requirement exists.

II. Private Sear ches

The Fourth Amendment does not apply to a search conducted by a private person who is not acting as an agent of the government or with the participation or encouragement of a government official. Private searches occur most commonly

when customers ta ke their computers to a private repair facility and incriminating evidence is found by the repair person. This evidence may be used by law enforcement even though it was obtained without a warrant. When searching without a warrant after a private search h as occurred, you may not exceed the scope of the private search. This standard requires you to limit your investigation to the precise scope of the private search until you obtain a warrant or identified a valid exception to the warrant requirement.

III. Reasonable Expectation of Privacy (REP) in Computers

A. Generally

The test for REP is: first, whether the individual exhibited an actual (subjective) expectation of privacy; and, se cond, whether that expectation is one society is prepared to recognize as reasonable. If either prong of the test is not met, then no_______________ Searching and Seizing Computers 457 REP exists. In computer search cases, the question is whether an individual enjoys a reasonable expectation of privacy i n electronic information stored on computers, pagers, floppy disks, and other electronic storage media. If the answer is “yes,” then you ordinarily must obtain a warrant before accessing the information. In analyzing the issue of REP in computers, courts have repeatedly compared computers to closed containers such as filing cabinets. That is a useful analogy as the Fourth Amendment generally prohibits you from accessing and viewing information stored in a computer without a warrant if, in the

same situatio n, you would be prohibited from opening a closed container and examining the contents.

B. Losing REP in a Computer

Although individuals generally have a reasonabl e expectation of privacy in their computers, circumstances may eliminate that expectation. Some of these circumstances are

outlined below.

1. Exposure to the Public

In the landmark case of Katz v. United States 1 , the Supreme Court made clear that “what a person knowingly exposes to th e public, even in his own home or office, is not a subject of Fourth Amendment protection.” When individuals make information on a computer openly available, they lose any expectation of privacy in that information. This can often occur when a person leav es data that is not encrypted or password protected on a computer that is accessible to others.

2. Stolen Computers

A thief will not have REP in the contents of a computer he has stolen. This includes a computer that was obtained through

fraud

– such as a purchase with a stolen credit card; how ever, the rightful owner or possessor of the stolen computer generally

retains REP in the contents.

1 Cases named in this chapter without a case cite are briefed in the companion book, Legal Division Reference Book._______________ Searching and Seizing Computers 458 3. Third Party Possession

The courts have repeatedly held that individuals who divulge information to third parties, even with the subjective expectation that the information will remain private, cannot retain control over that information once it has been provided to

the third

- party. They assume the risk that the third party will divulge the information to others.

IV. Exceptions to the Warrant Requirement

Warrantless searches that fall within an established exception to the warrant requirement do not violate the Fourth Amendment. Below are some of the common exceptions to the warrant requirement as th ey apply to searches of computers.

A. Consent

If a person gives valid cons ent to search, a warrant is not required.

1. Requirements

There are two requirements for a consent search to be valid. First, the consent must be given voluntarily (i.e., not coerced). If a defendant later challenges the voluntariness of his consent, for ex ample, in a motion to suppress, t he government carries the burden of proving that consent was voluntary. The consent must be also given by an individual

with either actual or apparent authority over the computer to be

searched.

In computer crime cases, two consent issues are common. First, when does a search exceed the scope of consent? For example, when a target consents to the search of

a “c omputer,” does the consent authorize you to search d evices attached to the computer (such as a thumb drive or a portable USB hard drive) or media (such as CDs or DVDs) lying about on the computer desk? Second, who is the proper party from

whom to obtain c onsent? Do roommates, friends, and parents_______________ Searching and Seizing Computers 459 have the authority to consent to a search of another person’s computer files?

2. Scope of a consent search

The scope of a consent search is defined by the terms and plain meaning of the consent given. An individual may limit the scope of any consent. The scope of a consent search cannot exceed, either in duration or physical scope, the limits of the consent given. Individuals may also revoke their consent. When consent is revoked, you must stop searching unless another Fourth Amendment exception applies.

Does consent to search a location or item implicitly include consent to access computer memory or electronic storage devices encountered during the search? Courts look to whether the particular circumstances of the request for consent implicitly or exp licitly limited the scope of the search to a particular type, scope, or duration. Be especially careful about relying on consent as the basis for a search when consent was obtained for one reason or type of evidence, but you then want

to conduct a search f or a different reason or type of evidence. Because the decisions evaluating the scope of consent to search computers have sometimes reached unpredictable results, you must indicate the scope of the search explicitly when obtaining a suspect’s consent to se arch a computer.

While consent to search “a computer” includes the active memory, and internal hard drives, it does not necessarily include storage media such as CDs, DVDs, thumb drives, portable hard drives, floppy diskettes and other media. Caution

is b est here; the consent obtained should specifically include these items if you want to search them.

3. Third party consent

It is common for several people to use or own the same computer equipment. If any of those people give permission to search for data, you may generally rely on th at consent. In such cases, all users have assumed the risk that a co

- user might_______________ Searching and Seizing Computers 460 discover everything in the computer, and might also permit law enforcement to search this “common area” as well. A private third party may consent to a search of property unde r the third party’s joint access or control. This rule often requires you to inquire into the third party’s rights of access before conducting a consent search, and to draw lines between those areas that fall within the third party’s common authority and those areas outside the third party’s control.

Consent from all persons who could give it is not necessary to have a valid consent search; the valid consent of one person authorized to give consent is enough. Recent cases, however, changed the law in a s ituation when one person consents and another objects. Prior to the Supreme Court’s holding in Georgia v. Randolph in 2006, consent by an occupant to search a home was sufficient to search even if another occupant objected. Randolph reversed that line of c ases and held that when any cohabitant who is present on the premises objects to the search, officers may not conduct a

consent search even if another cohabitant has consented. The

rationale in Randolph has since been extended to prohibit a

consent search of a computer in the home when the wife gave

consent but the husband

– who was not present

– objected to

the search.

The presence of encrypted or password protected data will, in most cases, indicate the absence of common authority to

consent to a search by co

- users who do not know the password or possess the encryption key. Conversely, if the suspect has given the co

- user the password or encryption key, then the co

user probably has the requisite common authority to consent to

a search of the files.

4. I mplied consent and network banners

Individuals often enter into agreements with the government whereby they waive some of their Fourth Amendment rights. For example, computer users may waive their rights to privacy as a condition of using a computer or the system to which the c omputer is connected. This often occurs through the use of written employment policies and/or network_______________ Searching and Seizing Computers 461 “banners.” Banners are written notices that greet users before they log on to a computer or computer network. When

individuals who have waived their ri ghts have their computers searched and challenge the searches on Fourth Amendment grounds, courts typically focus on whether the waiver eliminated the individual’s reasonable expectation of privacy against the search. A few courts have approached the same problem from a slightly different direction and have asked whether the waiver established implied consent to the search.

C onsent to a search need not necessarily be written or verbal. It may be implied or inferred from an individual’s

conduct. Some cou rts have proven reluctant to apply the implied consent doctrine absent evidence that the suspect actually knew of the search and voluntarily consented to it at

the time the search occurred. Other courts have held that the banner language was sufficient to permit intrusions only for network administrator housekeeping but not for general law enforcement purposes. These courts have preferred to examine general waivers of Fourth Amendment rights solely under the

reasonable

- expectation

- of

- privacy test. In any ev ent, relying on banners has proved perilous. Consult with an AUSA before relying on a banner search.

B. Exigent Circumstances

Under the “exigent circumstances” exception to the warrant requirement, you may search without a warrant if the

circumstances “would cause a reasonabl e 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 pos sibility 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_______________ Searching and Seizing Computers 462 arise in computer cases because electronic data is perishable. Computer commands can destroy data in a matter of seconds,

as ca n humidity, temperature, physical mutilation, or magnetic fields created, for example, by passing a strong magnet over a hard drive or flash memory such a thumb drive.

The exigent circumstances exception does not allow you to search or seize beyond what i s necessary to prevent the destruction of the evidence. When the exigency ends, the right to conduct warrantless searches does as well; the need to take certain steps to prevent the destruction of evidence does not authorize you to search without a warrant once the exigency has ended. Accordingly, the seizure of computer hardware to prevent the destruction of information it contains will not ordinarily support a subsequent search of that information without a warrant. Once steps have been taken to prevent destruction of the evidence, you must quickly move to obtain a

warrant unless valid consent to search is obtained.

C. Plain View

Evidence of a crime may be seized without a warrant under the plain view exception to the warrant requirement. To rely on this exception, you must be in a lawful position to observe and access the evidence, and its incriminating character must be immediately apparent. Horton v. California

.

The plain view exception does not allow you to intrude

into areas where REP ex ists. In other words, it is an exception that does not permit you to search , but only to seize. In computer cases, this means that you cannot rely on the plain view exception to open a closed computer file, look into a floppy diskette lying in the open, o r search a computer because incriminating evidence has been seen. The contents of a file that must be opened to be viewed are not in “plain view.” For example, if you walk by a computer in a public place and see data on a suspect’s computer monitor that i s probable cause evidence of a crime, that permits seizing the computer at that time to prevent the destruction of the data. Thereafter, you will need a warrant or consent to search the computer; what was seen on the monitor can be used to establish probab le cause._______________ Searching and Seizing Computers 463 The plain view rule also applies when a computer is being searched pursuant to a warrant and evidence outside the scope

of the warrant is discove red. For example, with a search warrant to look for evidence of fraud, agents open a computer file that turns out to be an image of child pornography. 2 This image is admissible because the agent was lawfully searching the computer pursuant to a warrant. I f the agent continues the

search for evidence of fraud and discovers more child pornography, those images too will be admissible so long as the agent remained within the scope of the warrant and a court later determined the agent had not “redirected” his e fforts to look for child pornography. If the agent was searching outside the scope of the warrant

– that is, a court determined the agent was looking for something not listed on the warrant

- the plain view rule would not save the items found during the s earch that were outside the scope of the warrant.

The best and recommended rule is that if during a computer search you find evidence of a crime that is outside the scope of the warrant, stop the search and obtain another warrant to search for the newly d iscovered evidence thereby expanding the scope of the original warrant.

D. Search Incident to Arrest (SIA)

A search conducted incident to a lawful custodial arrest is an exception to the warrant requirement and is considered reasonable. SIAs are permissible without a warrant because of: (1) the need to disarm the suspect to take him into custody, and (2) the need to preserve evidence for later use at trial. The permissible scope of an SIA includes a search of the person and the areas under the person’s immediate control for weapons, means of escape, and eviden ce of a crime.

A search incident to arrest may only be conducted when two requirements have been met. First, there must have been a

2 Because su spects 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._______________ Searching and Seizing Computers 464 lawful custodial arrest. A search incident to arrest may not be conducted if an actual arrest does not take place. The se cond requirement is that the search be substantially contemporaneous with the arrest.

Agents are more frequently encountering handheld and portable computers and other electronic storage devices when conducting searches incident to arrest. (SME note: Prec eding sentence moved to current location). With regard to searching electronic storage devices incident to arrest, the issue of the proper scope is not entirely clear. Courts have compared electronic pagers to closed containers, recognizing that an

indiv idual has REP in an electronic pager. As with other closed containers, a search warrant or an exception to the warrant requirement authorizes an intrusion into that expectation of privacy.

Courts have consistently allowed electronic pagers to be searched incident to lawful arrest, relying primarily on two factors: First, because of th e finite nature of a pager’s electronic memory, incoming pages may destroy currently stored telephone numbers in a pager’s memory. Second, merely turning off the power or touching a button can destroy the contents of some pagers, creating a potential for destruction of evidence. For both of these reasons, “it is imperative that law enforcement officers have the authority to immediately ‘search’ or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidenc e.”

As to cell phones, the courts have begun to apply the same rationale as was applied to pagers. T hose cases hold that cell phones discovered during a search incident to arrest may be searched for the data that the phone already contains to include incoming and outgoing text messages and phone logs. Data that is merely accessible from the cell phone bu t that is not stored on the cell phone itself (such as voice mail) may not be searched under a search incident to arrest authority.

You must be aware that searching cell phones is an emerging area in the law. Some courts have disallowed SIA cell phone se arches because they were not contemporaneous with_______________ Searching and Seizing Computers 465 the arrest (because done an hour later at the police station) or because the cell phone was not in the suspect’s possession when arrested. Other courts have expressed concern that cell phones contain too mu ch personal information for the exception to apply. Whenever possible, obtain a warrant or valid consent.

Courts have not yet addressed whether the law permits warrantless searches of electronic storage devices that contain more information than pagers o r cell phones. Various court decisions have granted officers the authority to search wallets, briefcases, and address books during a valid search incident to arrest. By analogy, it can be argued that you should be able to search electronic counterparts ( such as electronic organizers, thumb drives, and Personal Digital Assistants (Palm Pilots)) as well. There is yet no direc t case law to support that proposition, but courts have suggested that while a search through a pager or cell phone is reasonable incident to an arrest, a time

consuming search through a computer or other device with a large data capacity presents a differ ent case and is unreasonable. When in doubt, obtain a search warrant before examining the contents of electronic devices that might contain large amounts of information.

E. Inventory Searches

Inventory searches are a well

- recognized exception to the warrant requirement. Evidence found during a lawfully

conduc ted inventory search may be used against the defendant in a later trial. There are three justifications for allowing an inventory of lawfully impounded property without first obtaining a warrant: first, to protect the owner’s property while it remains

in police custody; second, to protect against claims or disputes over lost or stolen property; and third, to protect law enforcement from potential dangers that may be located within the property.

There are two requirements for conducting a valid inventory search. First, the inventory must not be a ruse to uncover evidence of a crime. Second, a valid inventory must also be conducted in accordance with a standardized inventory_______________ Searching and Seizing Computers 466 policy aimed at accomplishing the non

- investigatory purposes of inventory searches.

In one the few cases that touch on this issue, the court held that an “inventory” of dat a contained on a cell phone is not a valid inventory search because it does not serve the purposes of a stationhouse inventory. The court noted that i nventory searches are to protect the arrestee’s belongings and “here the officers could achieve this purpose simply by listing the defendant’s cell phones as items on the booking forms.” An inventory rationale should not be used to j ustify a search of cell phones or other electronic devices.

V. Searching with a Warrant

– Special Considerations in Preparing a Warrant to Search and/or Seize Computers

Searches that target computers and data are different from traditional searches. In most searches, you are l ooking for a particular physical item in a particular location. The search for electronic evidence is different. Because computer files consist of electrical impulses that can be stored anywhere and instantly moved or deleted, you may not know where compu ter files are stored or in what form. The data may be on the computer being searched, but electronically hidden from view. The filenames may be anything the suspect wants them to be. The data may be instantly erased, modified, or sent to a

confederate. The same data may exist in identical form in many different places. Court cases recognize that computer records are extremely susceptible to tampering, hiding, or destruction.

A. The Need for Pre

- Search Information

If you were to execute a search warrant for a particular location, you would want to know as much as possible about the area in advance. In computer searches, you must also know the terrain where the evidence might be concealed. At a minimum, you should try to determine:

**•** What types of computers and operating systems are

inv olved?_______________ Searching and Seizing Computers 467 **•** What types of software does the suspect use?

**•** Is the computer connected to a network? Where is the computer network server located?

**•** Can the computer or data storage device be searched safely and effectively on

- site, or must the computer be moved to another location to conduct

the search?

Gathering this information may involve an interview of the system administrator of the targeted network and those familiar with the network. This might be done in an undercover capacity. On

- site visits (often unde rcover) may also reveal important information about the hardware involved.

B. Fourth Amendment and the Particularity Requirement

– Where to Look and What to Look For

The Fourth Amendment does not permit general exploratory searches, but requires that the place to be searched and things to be seized be described with “particularity.” This requirement applies equally to searches of computers and the

data contained on them.

1. Where to Look and the “ Independent Component Doctrine”

You must be particular about where to look for data. Each component to be searched must be viewed independently and there must be probable cause to search each component. For example, to say that you want to search or seize a “computer” can be both too broad and too narrow, and it rarely meets the Fourth Amendment particularity requirement.

Data is often the real objective of a computer search. Much data is not stored on the computer itself or the hard drive in the computer, but on removable media such as diskettes, flash memory devices such as thumb drives, memory chips, zip drives, CDs/DVDs, and the like. In recent years, external USB (Universal Serial Bus) and fire wire external hard drives have_______________ Searching and Seizing Computers 468 become very affordable, rel iable, and an excellent choice for storing, moving, protecting and concealing data.

Other components can also be the source of evidence. If a keyboard, monitor, printer, scanner, cables or other devices or peripherals need to be seized, they should be ind ependently listed and their seizure justified.

Other items to search for would include computer

manuals so officers and forensic examiners know how to circumvent encryption and/or passwords; original software and manuals; and notes and journals that might contain passwords, encryption keys, e

- mail addresses, Internet URLs (addresses), and indexes of storage media.

2. What to Look For

In most computer or data searches, what is really wanted is the data and not just the computer. Certainly you must find the computer and components to be able to search for the data, but the objective of the search is really the data.

In order to seize data, you must articulate probable cause that the data exists, and describe what tha t data is. You cannot simply request permission to seize “all records” from an operating business un less there is probable cause to believe that the criminal activity under investigation pervades the entire business. Instead, you must include limiting phrases in the description of the files that can modify and limit the “all

records” search to that for which probable cause exists. For example, you may specify the crime under investigation, the target of the investigation if known, and the time frame of the records involved. In addition, instead of just saying “all records showing bank transactions betwe en 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 Handbo ok.

On occasion seizing only the actual computers

– and not

the data

- is the purpose of the search. Such may be the case_______________ Searching and Seizing Computers 469 when searching for stolen computers (contraband or fruits of a crime) or a computer used in the commission of a crime (instrumentalit ies) 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 suc h a case, not only is seizing of the computer important, but searching the data is as well.

C. Justifying Off

- Site Searches

The most significant difference between traditional and computer searches is that in computer searches, you need to

describe in the affida vit the need to remove computers from the

location listed in the warrant and search them at a different location. This requirement exists because seizing a computer can effectively close down a business, disable a computer network, or deny citizens the abi lity to conduct daily activities. Judges will consider these factors in deciding whether to issue a

search warrant.

In some instances, the desired data can be obtained at the location where the media or computer is found. When this is possible, the comput er system and the peripheral devices do

not have to be taken from the scene to be searched. As the use of computers and their sophistication increases, law

enforcement has become less able to conduct safe and meaningful searches on scene and must resort t o removing computers and media to be searched elsewhere.

If it is necessary to remove computers, devices, or computer media off

- site to be searched, you must articulate that need and the justification for it in the search warrant affidavit. Some of the j ustifications are:

**•** Must search to determine media contents. You often cannot tell what storage media contains by looking at just the container; each container (hard drive, floppy disk, CD or other media) must be

examined._______________ Searching and Seizing Computers 470 **•** Time required. It may take days o r weeks to find the specific information described in the warrant because computer storage devices can contain extraordinary amounts of information. Searching on scene may be more intrusive because of the time officers would have to remain on the premises.

**•** Labeling, intentional mislabeling, and hiding

data. Even if you know specific information about the files you seek, the data may be mislabeled, encrypted, stored in hidden directories, or embedded in “slack space” that a simple file listing

will not rev eal. I m ages 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 t o 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 because a command to the computer to be searched might be sent from any computer on the

network._______________ Searching and Seizing Computers 471 **•** Safety of the Officers and Preserving Law Enforcement Techniques and Methods. A lengthy search in the target’s home or bu siness may unnecessarily expose you to risk.

If removal of computers, devices and media has not been addressed in the affidavit, and it is determined that an off

- site search is necessary, you should seize the items and not search

them until a new search w arrant has been obtained justifying

the removal of the items.

D. Identifying the Need for Multiple Search Warrants

Increasingly, computer users choose to store their data

on an Internet

- connected computer (server) that can be located anywhere in the world. From a business efficiency viewpoint, this makes good sense as people can retrieve data no matter where they are provided they can access the Internet. From a criminal’s point of view, storing data on a server makes finding

that data harder for law enforcement and permits the criminal to constantly move that data at will.

F.R.Cr.P. 41(a) 3 states that a magistrate judge located in one judicial district may issue a search warrant for “a search of property ... within the district,” or “a search of p roperty . . . 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 i n multiple locations, you must

obtain a warrant in each affected district.

A different rule exists in the case of “stored electronic

communications.” Stored electronic communications are e

mails that are stored temporarily on the servers of companies (e.g. AOL, EarthLink, Yahoo, Hotmail) that provide e

- mail

3 This Rule can be found in its entirety in the companion book, Legal Division Reference Book , in the segment entitled “Selected Federal Rules of Criminal

Procedure.”_______________ Searching and Seizing Computers 472 services where the storage is incidental to the transmission of

the e

- mail. For stored elect ronic communications, 18 U.S.C. § 2703 eliminates the need to obtain multiple warrants. A

nationwide warrant for stored e

- mails can be issued “using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation ... .”

If a suspect in the Eastern District of Virginia had stored electronic communications on servers in California and Texas, a federal judge in the Eastern District of Virginia could issue a

search warrant for the stored e

- mails in California and Texas so long as the issuing judge had jurisdiction over the suspected

offense.



### Is a multiple

- jurisdiction warrant required?

Stored Electronic Communications

(e

- mails) in the hands of Internet

Service Providers Data

Any ju dge in any district who has jurisdiction over the offense.

Such a warrant is valid in any district where the stored emails are kept. From a judge in the district

where the data is located.

A separate warrant is required for each district.

VI. Special Considerations in Executing a Warrant to Search and/or Seize Computers

A. Technical Assistance During Execution of a Search

Warrant

Not only is a computer forensics expert essential to planning the warrant, but the technical expert should also accompany the search team or, at a minimum, be available on

immediate call. Title 18 U.S.C. § 3105 permits non

- law

enforcement officers to aid in the execution of a warrant. That statute provides:_______________ Searching and Seizing Computers 473 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 oth er person, except in aid of the officer on his requiring it, he being present and acting in its

execution.

Agents who violate 18 U.S.C. § 3105 can be subjected to civil liability. Not having a computer expert can jeopardize the admissibility of the evide nce seized. If bringing in a computer forensics expert, name the person in the warrant or state that one will be needed to aid in the search. Except in all but the simplest case, consult a forensics expert in planning the search, obtaining the warrant, an d executing the search.

B. Knock and Announce

You are required to com ply with the “knock and announce” statute set out in 18 U.S.C. § 3109 which states:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if,

after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of

the warrant.

This statute applies to searches of computers and data.

The rule is not absolute. In Richards v. Wisconsin , t he Supreme Court held that you can dispense with the knock

- and

announce requirement if they have:

a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or

that it would inhibi t the effective investigation of the crime by, for example, allowing the destruction

of evidence._______________ Searching and Seizing Computers 474 The time between when you announce your presence until the target opens the door may be sufficient time to destroy electronic evidence. Technically adept sus pects may “hot wire” their computers to use to quickly delete, erase, or obliterate evidence. In many cases, turning off the computer can destroy or alter evidence, especially the file the user was working on at

the time of the shut down.

When you have re ason to believe that knocking and announcing your presence would allow the destruction of evidence, would be dangerous, or would be futile, you should
request a no

- knock warrant from the magistrate judge. Even if

a no

- knock warrant is not obtained, the kn ock

- and

- announce statute does not prevent you from conducting a no

- knock search, if, upon arrival at the search location, you develop reasonable suspicion that evidence will be destroyed. In

Richards , the Supreme Court made clear that “the

reasonableness o f the officers’ decision [to dispense with the

knock

- and

- announce rule] . . . must be evaluated as of the time they entered” the area to be searched. Accordingly, you may exercise independent judgment and decide to conduct a no

knock search when executing the search, even if you do not

have a no

- knock warrant.

For example, if while approaching a residence with a warrant to search for data, you develop reasonable suspicion that their presence has been detected and that persons inside will destroy (delete) the data, such facts may excuse compliance

with the knock and announce statute.

C. Time Frames Governing Retention of Seized Computers

The forensic examination of seized computers can take months to complete because computers can store enormous amounts of data. Neither Federal Rule of Criminal Procedure 41 nor the Fourth Amendment imposes any specific limitation on the time period for the forensic examination. Ordinarily, you may retain the seized computer and examine its contents in a careful and deliberate manner without legal restrictions, subject_______________ Searching and Seizing Computers 475 only to Rule 41(g)’s provision that a “person aggrieved” by the seizure of property may bring a motion for the return of the
property.

Unfortunately, a few magistrate judges have refused t o sign search warrants authorizing the seizure of computers unless the government conducts the forensic examination in a short period of time

- in one case, as short as seven days. Other magistrates have suggested that Rule 41’s requirement that you execu te a “search” within 10 days of obtaining the warrant might apply to the forensic analysis of the computer as

well as the initial search and seizure. While the law does not expressly authorize magistrate judges to issue warrants that impose time limits on law enforcement’s examination of seized evidence, you must be prepared to provide the information

- and justification

- if the magistrate judge requires.

VII. Special Issues Involving Authentication of Information Contained on Computers

Refer to the Courtroom Evidence Handbook Chapter Four that has a section specifically addressing this issue._______________ Searching and Seizing Computers 476 

### NOTES__________ _____ 5 th and 6 th Amendments 477 

## Chapter Thirteen

The Fifth and Sixth Amendments

I. I NTRODUCTION

................................ ................................ . 478

II. V OLUNTARY S TATEMENTS

................................ .................. 479

A. Voluntariness

................................ ................................ .... 479

B. Interrogations

................................ ................................ ... 479

C. Involuntary Confessions

................................ .................... 480

D. Incriminating Statements

................................ .................. 481

III. M IRANDA W ARNINGS

................................ ......................... 482

A. Generally

................................ ................................ .......... 482

B. When Required

................................ ................................ . 483

1. Known Law Enforcement Officer

................................ .. 483

2. Interrogation

................................ ................................ 483

3. Custod y

................................ ................................ ....... 484

IV. V ALID M IRANDA W AIVER

................................ .................... 487

A. Generally

................................ ................................ .......... 487

1. Voluntary

................................ ................................ ..... 487

2. Intelligent and Knowing

................................ ............... 487

3. Aff irmative Waiver

................................ ........................ 488

B. Form of Waiver

................................ ................................ .. 488

C. Stale Warnings

................................ ................................ .. 489

D. Correcting Miranda Violations

................................ ........... 489

1. Unintentional Violations

................................ .............. 489

2. Intentional Violations

................................ ................... 490

E. Exceptions

................................ ................................ ........ 490

1. Public Safety

................................ ................................ 490

2. Routine Booking Questions

................................ .......... 491

V. I NVO CATION OF M IRANDA R IGHTS

................................ ....... 491

A. Generally

................................ ................................ .......... 4 91

1. Right to Silence

................................ ............................ 492

2. Right to Counsel

................................ .......................... 492

B. Not Offense Specific

................................ .......................... 492

C. Subject Re

- initiates Contact

................................ .............. 493

D. Ambiguous Requests

................................ ......................... 493

VI. N ON

- C USTODIAL I NTERROGATIONS

................................ ...... 494

A. Subpoenas to Testify

................................ ......................... 494

B. Immunity

................................ ................................ .......... 495

1. Use Immunity

................................ .............................. 495

2. Transactional Immunity

................................ ............... 496_______________ 5 th and 6 th Amendments 478 C. No Right to Commit Perjury

................................ .............. 496

D. Documents Pursuant to Sub poenas

................................ .. 496

E. “Collective Entities”

................................ ........................... 496

F. Third Parties

................................ ................................ ..... 497

G. Internal Government Investigations

................................ .. 497

H. Deportation Proceedings and Fo reign Prosecutions

........... 497

VII. S IXTH A MENDMENT C OUNSEL

................................ ............. 498

A. Generally

................................ ................................ .......... 498

B. Critical Stages

................................ ................................ ... 498

1. Interrogation

................................ ................................ 498

2. Line

- ups

................................ ................................ ...... 499

C. Attachment

................................ ................................ ....... 499

D. Offense Specific

................................ ................................ . 500

E. Waiver and Invocation

................................ ....................... 500

1. Waiver

................................ ................................ ......... 500

2. Undercover Agents

- Informants

................................ .... 501

3. Invoking the Right

................................ ....................... 501

F. The McDade Amendment

................................ .................. 502

VIII. D UE P ROCESS AND I DENTIFICATION P ROCEDURES

.................. 503

A. Generally

................................ ................................ .......... 503

B. Types of Identification Procedures

................................ ..... 503

1. Line

- ups

................................ ................................ ...... 504

2. Photo Arrays

- Displays

................................ .................. 504

3. Show

- ups

................................ ................................ .... 505



## *****

I. Introduction

Police questioning often yields critical evidence for the prosecution of criminals. It is important that officers abide by

Constitutional standards so that a defendan t’s statements will

be admissible at trial. Whether it is a full confession, or a simple admission to specific facts, certain rule s may apply that

must be followed to ensure the statements can be used as

evidence.__________ _____ 5 th and 6 th Amendments 479 I I. Voluntary Statements

A. Voluntariness

The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against h imself.” The confessions and admissions of a suspect must be free ly and

voluntar il y given . It must not come by any sort of threats or violence. It also cannot be obtained by any direct or implied promises, such as for special treatment or a reduced sent ence. A person must not be compelled to incriminate himself. A statement can be suppressed if a court determines it is involuntary.

This voluntariness requirement comes from the Constitution’s rule against compelled self

- incrimination, as well

as notion s of due process. The issue is “whether a defendant’s will was overborne” by the circumstances that led up to the statement. If a suspect’s confession is not voluntarily made

that is, not the product of his free choice

- it cannot be used against him.

T he analysis of a statement takes into consideration the “totality of all the surrounding circumstances”

- the situation

under which i t was made. Extreme examples of Constitutional violations that led to involuntary statements include a confession that was obtained as a result of a brutal beating

, or one obtained after a police physician gave th e suspect a drug

with truth

- serum properties.

B. Interrogations

C ourts look closely at interrogations to ensure the

voluntariness of statements . The court examines the factual circumstances surrounding a confession, making i t important

to document all relevant factors . Factors that can impact the voluntariness of a statement include the suspect’s age,

e ducation, and i ntelligence ; the length of detention ; repeated and prolonged questioning ; impairment by drugs or alcohol ; psychological problems ; current physical condition ; experience_______________ 5 th and 6 th Amendments 480 with the criminal justice system ; and the failure to advise of

C onstitu tional rights.

The Supreme Court has stated that “coercive police activity” must be prese nt in order to find that a confession is

in voluntary. Without some coercion by the government, there is

no Constitutional issue. The Fifth Amendment does not apply
to pressure or coercion by private (non

- government) actors.

Acceptable law enforcement in terrogation practices can include: promising a suspect that his cooperation will be brought to the attention of the prosecutor

, confronting a suspect with evidence of his guilt

, or encouraging him to tell the truth through emotional appeals

. Truthful comm ents are acceptable, such as letting the defendant know the potential jail time he faces if convicted. While it is important not to state that prosecutors or judges will , in fact, be more lenient, officers can tell a suspect that his cooperation will be s hared with those that

can influence his fate.

T rickery and deception may be used during an interrogation as long as a suspect’s will i s not overborne by

such tactics. Telling the suspect his prints are on the murder weapon, even when they are not, is permitted (but be aware of the suspect’s mental capacity

- those who function below normal levels may be too easily influenced by authority figures). In Frazier v. Cupp 1 the officer questioning the defendant told him, falsely, that his accomplice had confessed. The defendant then gave a full confession. The police misrepresentation did not make the defendant’s confession involuntary.

C. I nvoluntary Confession s

Trickery and deception may be permissible, but can go too far, especially when combined with other questionable interrogation tactics

. In Spano v. New York a suspect in a killing was a foreign

- born man, age 25, with no previous

1 Cases named in this chapter without a case cite are briefed in the companion bo ok, Legal Division Reference Book.__________ _____ 5 th and 6 th Amendments 481 criminal history or experience with official interrogation. He had only six months of high school education and a history of emotional instability. The defendant was questioned by officials for nearly eight str aight hours before he confessed. The defendant repeatedly refused to answer questions. During the interrogation, the police used a “childhood friend” of the defendant who had become a police officer. This officer told the suspect that the situation had gotten the officer in trouble and that his job was in jeopardy. He played up the terrible effect this would have on the officer’s family. At almost sunrise, police obtained the final piece s of the defendant’s confession.

The C ourt held that the confessi on was involuntary. They

determined that it was obtained in violation of the suspect’s rights , because his will was overborne by official pressure, fatigue, and sympathy created through deception.

More obvious examples of involuntary confessions include public employees threatened with losing their jobs if they do not cooperate and make a statement. In another case, a woman

was advised that she would have her kids taken from her if she did not confess. Such methods of gaining confessions are the very th ing the courts have found to be in violation of the Fifth

Amendment.

Useful methods of avoiding challenges to an interrogation might include giving significant breaks during longer questioning. It may be good to delay interviews of highly

intoxicated ind ividuals. With juveniles, or the mentally impaired, more time might be spent explaining the Miranda rights. It might also be wise to go a little easier on leading questions when dealing with such suspects.

D. Incriminating Statements

The protections of the self

- incrimination clause apply only

to testimonial evidence that may incriminate the suspect. This includes words and gestures that convey information that could be used against the individual in a criminal case. If the suspect is asked, “Where are your narcotics,” and he then points at his_______________ 5 th and 6 th Amendments 482 backpack, that would be considered testimonial. If the response was determined to be involuntary, it would be suppressed just like a verbal statement would. Of course, if the answer to a question would not incriminate the speaker, t hen the privilege against self

- incrimination does not apply. A mere witness to a crime can be required to answer questions posed by a grand jury, for example.

Non

- testimonial evidence is not covered by this clause, including voice samples and hand

- writin g samples. Because they do not convey information about the case, and are only used for identification purposes, they are not testimonial.

I II

. Fifth Amendment Miranda Warnings

A. Generally

The Supreme Court created a rule specifically for custody situations because of the additional pressures that a suspect may face to incriminat e himself. In Miranda v. Arizona the Court said that statements from custodial interrogation of a defendant cannot be used at trial unless police protect his rights by giving certain warnings. Failure to follow this “procedural safeguard

, ” even for state ments that are otherwise voluntary, can lead to suppression. Therefore, prior to questioning a defendant in custody must be told th e following :

**•** He has the right to remain silent;

**•** That any statement he does make may be used as evidence against him;

**•** That he has a right to consult with an attorney and to have the attorney present during questioning;

and

,

**•** That if he cannot afford an attorney, one will be appointed to represent him prior to questioning.__________ _____ 5 th and 6 th Amendments 483 After the warnings are given, an individual may wa ive these rights and agree to answer questions or make a

statement

, if he does so voluntarily, knowingly and intelligently.

The Court’s concern was that the potential coercion of a custodial interrogation might l ead to involuntary statements. I n a custod ial interrogation, the police have the capacity to

dominate the scene to such an extent that the risks of coercion and intimidation are unreasonably high. Therefore, the

Miranda Court created these four warnings to protect the rights of the suspect

.

B. M iranda Warnings

– When Required

Miranda applies only when there is both custody and interrogation by known law enforcement authorities. The combination of these things creates the police

- dominated atmosphere that concerned the Supreme Court. Should one of these factors be absent, however, then the situation is not one that requires Miranda warnings.

1

. Known Law Enforcement Officer

Miranda only applies to questioning by known officers (as perceived by the suspect), whe ther in or out of uniform. Unlike a typical police interview

, though, questions by undercover

officers do not require Miranda warnings

. In Illinois v. Perkins an undercover law enforcement officer posing as an inmate was

no t required to give Miranda warnings to an incarcerated suspect before asking questions that could bring an incriminating answer. Without a known officer present

, there is

not that same “police

- dominated atmosphere” that could compel

a response.

2

. Inter rogation

Interrogation is the act of askin g investigative types of questions where the answer could incriminate the suspect. It does not include such things as requesting consent to search a person or car, as these seek only permission and not_______________ 5 th and 6 th Amendments 484 information that could be used against the suspect. Interrogation under the Miranda rule includes not only actual investigative questioning, but also any functional equivalent of questioning. In Rhode Island v. Innis the Supreme Court said

that Miranda applies whenever a person in custody is subjected

to i nterrogation, i.e., either express questioning or its functional equivalent. The functional equivalent of interrogation means words or actions by law enforcement that are designed to bring an incriminating response from the suspect. For example, police e ngaging in a lengthy monologue in the presence of an in

custody suspect might be considered an interrogation.

Spontaneous or volunteered statements are not considered “interrogation” for Miranda purposes. For example, a defendant is arrested for a minor crime and during the ride to the police station blurts out, "I stabbed her." The defendant is

vol untarily making a statement without being questioned by the police. Therefore, Miranda warnings are not required. In some

cases , Miranda warnings were not required if police as ked a

follow

- up question to clarify the spontaneous statement. For example, t he officer then asks, "Who?" and the suspect responds, "Cathy." These statements may be admissible against the defendant , but the better practice is to give the

Miranda warnings before asking any investigative question

.

Not all communications with a sus pect are affected by

Miranda

. Dialogue with a defendant during physical sobriety tests, for example, is not interrogation (the officer is not seeking testimony from the individual about his crimes). Likewise, asking a suspect for consent to search, or re questing personal information (name, address, etc.) when booking him, are not considered the sort of interrogation that requires Miranda warnings.

3. Custody

Custody requiring Miranda warnings exists when law enforcement officers arrest or otherwise deprive a person of his freedom of action in a significant way. Courts will consider a__________ _____ 5 th and 6 th Amendments 485 suspect to be “in custody” whenever there is a restraint on freedom of movement to the degree associated with a formal arrest, even when there is n o arrest. California v. Beheler

. For example, Miranda warnings were required when police officers arrived at a suspect’s home at 4:00 a.m., entered his bedroom, and began questioning him. In such circumstances, a suspect might easily believe himself to be under arrest.

While both “seizure” in the Fourth Amendment sense and “custody” in the Miranda sense involve the restraint of a person’s freedom to walk away from the police, the critical

difference is that Miranda “custody” arises only if the restraint on freedom is to the degree associated with formal arrest. A Fourth Amendment seizure does not necessarily render a person “in custody” for purposes of Fifth Amendment Miranda

. This is most evident in a Terry s top. Generally, officers are not required to read Miranda to quest ion a suspect during an investigative detention , even though he is not free to leave

.

The decision on whether to read Miranda when no formal arrest has occurred is not always clear, but usually it is not required. If the officer creates a situation that would appear truly arrest

- like to a reasonable person, though, he should give

Miranda warnings, or risk losing the statement

.

In situations that verge on being custodial, courts are less likely to require Miranda if any of the following are true: the

susp ect was informed that he is not under arrest ; the suspect was informed that he is free to leave at anytime; and there was no physical restraint that could cause a reasonable person to perceive that he is under arrest. The following situations have general ly been held not to be custody for Miranda purposes:

**•** Traffic Stops

. Routine traffic stops are not custodial and therefore do not require Miranda warnings.

**•** Terry Investigative Stops

. Generally, like traffic
stops, Terry stops do not require warnings because they are not considered to be “cu stody.”_______________ 5 th and 6 th Amendments 486 **•** Search Warrants

. In general, detaining the occupant of a home during the execution of a search warrant is not considered “custody” for

Miranda purposes. S till, if agents closely guard an individual during the operation , a court may consider it custody, even if it is a reasonable temporary seizure under the Fourth Amendment

.

**•** Police Station Questioning

. Non

- custodial questioning may take place in a police station even when the questioned person is one whom t he police suspect. In Oregon v. Mathiason

, Miranda warnings were not required because the defendant was not subjected to “custodial interrogation” when he voluntarily came to the police station and gave a

statement. The defendant was immediately

informed that he was not under arrest. A non

custodial situation is not converted to a Miranda situation simply because the questioning takes place in a “coercive environment.”

**•** Intent to Arrest

. A n unexpressed or unarticulated

future intent to arrest is not Miranda custody . The relevant inquiry is how a reasonable person in the suspect’s position would have understood his

situation. In Stansbury v. California the Supreme

Court said that an officer’s undisclosed belief that the person he interrogates is a suspect is irrelevant

to whether he is in custody . The need to give

Miranda warnings arises only when there is a

formal arrest or restraint on freedom of movement

to the degree associated with a formal arrest.

**•** Incarcerated Persons

. Individuals who are serving prison sentences are not necessarily in “custody”

for Miranda purposes. S ome type of additional restraint must be imposed on an inmate to

transform the interview into a “custodial interrogation.”__________ _____ 5 th and 6 th Amendments 487 The Miranda rules apply so long as the suspect remains in custody. Once he is released (e.g., on personal bond after an initial appe arance), there is no longer custody, and, therefore,

no Fifth Amendment Miranda situation. There may, however, be Sixth Amendment concerns that could affect interrogation,

as addressed below.

I V. Identifying a Valid Miranda Waiver

A. Generally

Once an individual taken into custody has been given the

proper Miranda warnings, there is one more requirement before any interrogation. Prior to questioning, the suspect must make

a voluntary

, knowing and intelligent waiver of his rights under

Miranda

.

1. Voluntary

For a waiver to be valid, a suspect must voluntarily give up his Miranda rights. It must be the product of a free and deliberate choice, without any intimidation, coercion, or deception. Just as a suspect should not be pushed into making

a confes sion, he must also not be pushed into waiving the rights provided by Miranda

. The waiver must be voluntary, and any statements after the waiver must also be voluntary (getting a valid waiver, by itself, does not guarantee the voluntariness of a statement)

.

2. Intelligent and Knowing

The waiver must also be intelligent and knowing. It

should be made with a full awar eness of both the right being

waive d and the consequences of waiv ing it. For the waiver to be considered knowing, a suspect should be given the complete

Mir anda warnings, start to finish.

Failure to fully give Miranda warnings (and obtain a waiver) will make any statements obtained from custodial interrogation inadmissible at trial. Therefore, officers should_______________ 5 th and 6 th Amendments 488 advise suspects of their Miranda warnings by reading the warnings directly from a Miranda rights card or agency form , if possible, to ensure full c ompliance.

When deciding if a waiver is intelligent, the courts will consider the suspect’s education, understanding, age, familiarity with the criminal justice system, physical and mental condition, drug or alcohol problems, and language barriers.

Trick ery or deception should never be used when advising a suspect of the Miranda warnings or when obtaining a Miranda rights waiver. Any evidence that the defendant was threatened, tricked, or pushed into a waiver will cause the courts to find the privilege was not voluntarily waived. Deception can still be employed, however, after a valid waiver, as a tactic for obtaining

statements.

3

. Affirmative Waiver

Courts will look to see if the suspect made an affirmative

waiver of his Miranda ri ghts . Some clear evidence of intent to

waive must be given. The Miranda case sets forth the rule that a suspect must both waive his rights and agree to answer questions or make a statement. Silence will cause the courts to presume there is no waiver, un less there is strong indication of intent to waive based on the suspect’s conduct.

B. Form of Waiver

Miranda does not require police to advise a suspect that

he can stop answering questions at any time, or remind him of that fact after a waiver is obtained. It is also not required to tell
a suspect what the topics of the interrogation will be . The warnings already inform the suspect that he can refuse to

answer any question which might incriminate him.

If a suspect waive s the Miranda rights orally, but refuse s to sign the waiver form , it is still a valid waiver

. A suspect c ould

also agree to give only an oral statement

, but not a written__________ _____ 5 th and 6 th Amendments 489 statement . He can eve n waive only as to certain questions, but

not others.

C. Stale Warnings

As note d above, once rights are waived, there is no need to remind the defendant of those rights. The mere passage of

time does not make a Miranda warning invalid. S ome factors

courts will consider , however, in determining whether a time lapse made Miranda warn ings too “stale” to be valid are: (1) the

amount of time between the last Miranda warnings and the suspect’s statement; (2) interruptions in the continuity of the interrogation; (3) whether there was a change of location between the place where the last Mi randa warnings were given and the place where the suspect’s statement was made; (4) whether the same officer who gave the warnings also conducted the interrogation resulting in the suspect’s statement; and (5) whether the statement from a later interrogati on differed significantly from other statements which had been made directly after Miranda warnings.

When there is a time

- lapse during the interrogation process, it is usually good procedure to re

- advise a suspect of

the Miranda rights and again obtain a waiver prior to resuming interrogation. If not, at the very least, the officer should re

confirm that the suspect still understands his rights and wishes to continue with the interrogation.

D. Correcting Miranda Violations

1

. Unintentional Violations

What happens in a situation where a suspect makes a

statement after an unintentional violation of Miranda , such as when an officer simply forgets to read the warnings? In Oregon

v. Elstad the Court said that giving Miranda warnings to a

su spect who previously gave an unwarned (but voluntary) statement is enough to overcome the problem. Therefore, if more statements are made or repeated after the Miranda warnings, they will be admissible at trial. In general, the courts_______________ 5 th and 6 th Amendments 490 will prevent just t he use of any statements given before the warnings.

2

. Intentional Violations

In contrast, in Missouri v. Seiber t the Court held that when officers intentionally question without Miranda warnings as a tactic to gain a confession, it effectively threatens

Miranda ’s purpose. Here, the re was an unwarned confession, followed by a statement made after Miranda warnings. Neither

one could be used against the defendant because of the officers’ efforts to get around the rule.

E. Exceptions to Miranda

1. Public Safety Exception

When an officer asks a suspect in custody a question
prompt ed by a concern for public safety, and not to obtain an incriminating response, Miranda warnings are not required. This principle is well

- illustrated in New York v. Quarles

. Officers learned that a suspect who was believed to be armed ran into a grocery store. The suspect was arrested

, and it was discovered he was wearing an empty holster. The officer asked where the gun was, and the suspect revealed the location. His statement was admitted into evidence even though it was not preceded by Miranda warni ngs. It was only after securing the loaded revolver and giving the Miranda warnings that the officer continued with investigatory questions about the ownership and place of purchase of the gun.

The “public safety” exception has been extended to cover

off icers’ questions necessary to secure their own safety. A pre

Miranda question, “Do you have any guns or sharp objects on you?” is permissible under the public safety exception. Courts have even applied the “public safety” exception to situations

where a suspect has received his Miranda warnings and invoked his right to counsel.__________ _____ 5 th and 6 th Amendments 491 2. Routine Booking Questions

The “routine booking question” exception to Miranda allows questions to secure biographical data necessary to complete booking or pretrial services. This includes questions related to physical a ppearance (e.g., actual hair color), personal history, and place of residence. The questions are for record

keeping purposes only and not designed to obtain incriminating

statements

. Pennsylvania v. Muniz

.

V. After Miranda Rights are Invoked

A. Generally

There are two separate rights under Miranda that a defendant can assert when subjected to custodial interrogation.

A sus pect can assert the right to remain silent by saying that he

does not want to talk , or a s uspect can assert the right to

counsel by saying that he wants an attorney.

If a defendant asserts either right, the general rule is that the questioning must stop. However, Miranda does not require

you to inform a suspect that an attorney is trying to contact him, and you do not have to allow any access to the attorney during processing.

Sometimes, a suspect may attempt to invoke his rights

under Miranda before he even faces custodial interrogation. Trying to invoke these rights in anticipation of some future custodial interrogation does not work. Unless the interrogation is fairly imminent, courts will generally not consider the suspect’s rights to be invoked, so Miranda could later be read

and a waiver obtained.

Assuming the defendant did properly invoke, t he procedure to follow differs depending on the right asserted. If the defendant asserts both rights, the procedure regarding the right to counsel will take precedence._______________ 5 th and 6 th Amendments 492 1. Right to Silence

If a suspect asserts the right to silence, questioning must stop, but officers may attempt to re

- approach the suspect a fter a “cooling off” period. In Michigan v. Mosley police gave full

Miranda warnings to the defendant and began to question him. When the defendant asserted his right to silence, the police suspended the questioning for more than two hours. They then

re

- approached the defendant to beg i n a new line of questioning. The defendant was given Miranda warnings again , and he waived his rights before th is second interrogation started . The Court found this to be an acceptable practice, and the

statements could b e used at trial. Subsequent interrogations after waiting an appropriate time can be about the same crime

or a different crime.

2. Right to Counsel

When a suspect invokes his right to an attorney, he cannot be subjected to further interrogation unless he himself

re

- initiates the contact, or counsel is actually present (such meetings should be coordinated through the prosecutor) . In

Edwards v. Arizona the defendant asserted his right to counsel, but the police returned the next morning to confront him. After being read Miranda again, the defendant made incriminating

statements. Since the defendant exercised his right to have counsel the day before, his w aiver of that right the next day was

not valid. If an accused indicates that he wishes to have an attorney, the interrogation must cease. Police may not try to approach and question him again.

B. Not Offense Specific

When a suspect invokes the right to counsel or silence, interrogation about any other crimes must stop, too. Neither

the same nor different law enforcem ent authorities may question the suspect about the same or a different offense. In

Arizona v. Roberson the Court said it d id not matter that the

officer who conducted a second interrogation was not aware__________ _____ 5 th and 6 th Amendments 493 that the suspect had already made a request for cou nsel. Assertion of the right to counsel applies to any and all crimes and to questions by any known law enforcement officer

.

C. Suspect Re

- initiates Contact

Interrogation may be resumed after a suspect asserts his right to counsel only when the suspect re

- initiates the

communication. While the officer cannot re

- approach the suspect, questioning can begin if it is the subject that approaches the officer. Remember that a valid waiver must be obtained prior to any interrogation.

In Oregon v. Bradshaw a defendant’s statements were properly obtained when the suspect “initiated” further

conversation abo ut his case. After already asserting his right to counsel, he later asked an officer, “Well, what is going to happen to me now?” Officers then read him Miranda warnings,

and he made a valid waiver of his rights.

I nquiries or statements by a suspect that simply relate to routine incidents of the custodial relationship will not “initiate”

a conversation. For example, asking for a glass of water or a cigarette are not inquiries or statements about the case.

Likewise, once a defendant asserts his right to silence, he may be questioned if he re

- initiates contact with the police. For example, a defendant in FBI custody explicitly told the agents

that he did not want to talk. His request was honored. The defendant then initiated a discussion with the agents by inquiring about the arrest of other persons. The agents

informed the defendant that his co

- defendant was under arrest. At that point the defendant then said, “Let’s talk.” The agents then resumed questioning the defendant. The Court held that

the d efendant voluntarily and knowingly waived his right to

silence.

D. Ambiguous Requests

First and foremost, for stat ements from custodial interrogation to be admissible, there must be a clear waiver of_______________ 5 th and 6 th Amendments 494 the Miranda rights. An unclear request for an attorney made at the time warnings are given cannot be seen as a waiver. However, i f a suspect seems to change his mind ab out wanting
an attorney after a valid waiver, his desire to have counsel must be clear enough that a reasonable police officer would recognize

it as a n actual request. If the statement is not clear and definite, the officer is not required to stop questio ning the suspect. For example, in Davis v. United States the Supreme Court said that the statement, “maybe I should talk to a lawyer,” was ambiguous and not an actual request for an
attorney.

When a suspect makes an ambiguous request, it is good police p ractice to clarify whether or not the suspect actually
wants an attorney. T here is no rule , however, requiring clarifying questions to be asked. Therefore, officers do not have
to stop questioning the suspect.

VI. Self

- Incrimination Outside of Custodial Interrogation

A person may assert the Fifth Amen dment privilege against compelled self

- incrimination in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. When asserted, the privilege protects against any disclosures that the individual reasonably believes cou ld be used against him in a criminal prosecution, or that could lead to other evidence that might be so used. Despite the applicability of the privilege against self

- incrimination to such situations, no Miranda warnings need be given, unless there is

cust ody involved.

A. Subpoenas to Testify

When a witness is needed to appear at trial, Grand Jury, or other proceeding, he may be issued a subpoena. Before being questioned, the witness does not have to be given Miranda warnings because he is not in custody. If the witness

believes he has a Fifth Amendment privilege and believe s he

should not be orde red to testify, he may ask a court to quash__________ _____ 5 th and 6 th Amendments 495 (cancel) the subpoena. He may also claim 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 have to testify und er threat of contempt.

B. Immunity

Remember that the Fifth Amendment provides that no person can be compelled to be a witness against themselves in

a criminal case

. If the possibility of a criminal prosecution using that testimony is removed, then the Fifth Amendment does not apply.

Immunity is a government tool for securing testimony that otherwise would be protec ted by the Fifth Amendment. If immunity is granted, the witness can then be compelled to answer, or be held in contempt if he refuse s , even though the testimony would implicate the witness in criminal activity. There are two kinds of immunity

.

1. Use Im munity

“Use Immunity” prohibits the government from using any compelled testimony, as well as evidence derived directly or indirectly from that testimony, against the immunized witness. However, a grant of “use immunity” does not prohibit the government from prosecuting the witness. As its name implies, use immunity only means the government cannot use the compelled testimony against the person who was compelled to give it.

If the government decides to prosecute a person who testified under a grant of “use immunity,” the prosecution must show that the evidence it proposes to use is derived from a source independent of the defendant’s compelled testimony. For example, the gover nment may use evidence it obtained against the defendant before the defendant testified under immunity

._______________ 5 th and 6 th Amendments 496 2. Transactional Immunity

“Transactional immunity” give s the witness full immunity from prosecution for the crime involved

. As such, it provides the witness considerably broade r protection than does the Fifth Amendment privilege.

C

. No Right to Commit Perjury

Even when a witness is granted immunity, that witness cannot commit perjury in the course of his testimony. If the witness commits perjury, he can be prosecuted for it

.

D

. Documents Pursuant to Subpoen as

In gen eral, the contents of records are not privileged. Although the contents may not be privileged, the act of producing the documents may be. Compliance with a subpoena can be seen as an admission the papers exist and are controlled by the holder. It also i ndicates the holder’s belief that the papers are those described in the subpoena. These implications can be both “testimonial” and “incriminating” for purposes of applying the Fifth Amendment. Therefore, the act of producing documents can be privileged a nd cannot be compelled without a statutory grant of use immunity. United States v. Doe (Doe I)

.

E

. “Collective Entities”

The Fifth Amendment privilege applies only to natural individuals and protects only private papers. Corporations and other collective entities are not protected by the Fifth Amendment. Therefore, the contents of subpoenaed business

documents are not privileged under the Fifth Amendment.

A record custodian’s act is legally the act of the corporation, not the individual. A custodian of corporate records may not resist a subpoena on the ground that the act of production would incriminate him, b ut the Government cannot use the fact that the custodian provided the documents as evidence against the custodian.__________ _____ 5 th and 6 th Amendments 497 F

. Third Parties

One does not have a Fifth Amendment privilege to prevent the production of business and tax records in the possession of another p erson , such as an accountant. Because the Fifth Amendment privilege is a personal one, it adheres to the

person , not to information that may incriminate him. There is no Fifth Amendment privilege unless the person holding the records can show that he may tend to be incriminated by producing the documents

.

G

. Internal Government Investigations

The government cannot threaten to fire a government employee in order to obtain incriminating evidence

, and then use that evidence against the employee to get a conviction. Likewise, a government employee cannot be terminated from government employment only for invoking and refusing to waive his Fifth Amendment privilege against self

- incrimination. Garrity v. New Jersey

.

However, the government can require a go vernment employee to answer questions specifically, directly, and narrowly related to the performance of his official duties if the employer adequately informs the employee: (1) that the employee is subject to discharge for not answering; and (2) that

the employee’s answers and their fruits cannot be used against

him in a criminal case. Kalkines v. United States

.

H

. Deportation Proceedings or Foreign Prosecutions

Given the civil character of a deportation proceeding, the

risk that testimony might subject a person to deportation is not

sufficient reason to assert the Fifth Amendment privilege. However, if a person could demonstrate that any testimony he might give in a deportation investigation could be used in a

domestic crimi nal proceeding, he would be entitled to invoke the privilege. Generally, the privilege cannot be invoked simply because the witness faces potential foreign prosecution, though._______________ 5 th and 6 th Amendments 498 V II

. T he Sixth Amendment Right to Counsel

A. Generally

T he Sixth Amendment to the Constitution states that

, “[i]n all criminal prosecutions, the accused shall enjoy the right

to... have the Assistance of Counsel for hi s defence.” T he purpose of the Sixth Amendment right to counsel is to ensure that anyone accused of a crime by the government will receive fair treatment in the judicial process and at trial. The opportunity for an accused to consult with and be represen ted by counsel when defending against a criminal charge is considered a basic requirement of fairness in our judicial

process. It give s the defendant an opportunity to have defense counsel act as a buffer when forced to directly confront his

skillful adve rsary

– the government and its agents.

A n individual’s Sixth Amendment right to counsel attaches when the government has formally accused him with a crime, thereby initiating the adversarial process. It is not related just to custodial interrogation by kn own law enforcement officers, the way Miranda rights are under the Fifth Amendment. It applies to any “critical stage” of his prosecution.

B. Critical Stages

1. Interrogation

Once the Sixth Amendment right to counsel has attached, the accused must be afforded the right to have counsel present during every “critical stage ” of the criminal proceedings. Critical stages include all court

- relat ed proceedings. More importantly for law enforcement officers, an y interrogation

, custodial or not, is considered a critical stage . All attempts by

law enforcement to elicit informati on from the defendant about the charged crime would be included. Because these are Constitutional right s , courts may apply the exclusionary rule for any violations.__________ _____ 5 th and 6 th Amendments 499 2. Line

- ups

L ive identification procedures thrust the accused into a direct confrontation with his adversary. As a consequence, the

courts consider line

- ups (and probably show

- ups) to be a critical stage in th e pr oceedings.

Whenever the accused is placed in a line

- up for

identification in a charged offense, and the right to counsel has attached, the accused must be afforded the opportunity to have his counsel present during the line

- up. Any such line

- up that

incl udes the accused must then be conducted with defense counsel present, unless the defendant waives that right. The validity of any waiver will be determined by the totality of the

circumstances under which it was made. Violations of this right can have an adverse affect on later in

- court identifications by a witness.

Identification through a photo array including the accused does not involve a confrontation, and therefore is not considered a critical stage of the adversarial proceedings. The

accused thus has no Sixth Amendment right to the presence of counsel when photo arrays are used.

C. Attachment

The protection s of the Sixth Amendment right to counsel

are not available to suspect s un til 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 fol lowing means:

**•** a n Indictment returned by a Federal Grand Jury ;

**•** an Information filed by a Federal prosecutor ; or

**•** an Initial Appearance of the defendant after arrest.

Whenever the earliest of these events occur s in a case, the adversarial proceeding has begun, and the accused’s right to have counsel present at all critical stages has then attached._______________ 5 th and 6 th Amendments 500 D. Offense Specific

In the prior sections, it was noted that Miranda rights are

not offense specific; that is, they apply to any custodial interrogation by law enforcement

, regardless of the offense for which the suspect is being held. By contrast, the Sixth Amendment right to counsel is offense specific. Because the Sixth Amendment right applie s only when ad versarial proceedings are initiated, the right attaches only as to the charged offenses.

However, the accused may be questioned about other, uncharged offenses

, since the right has not attached as to those

crime s. In Texas v. Cobb

, the defendant committe d a double murder while in the process of burglarizing a house. The defendant was formally charged with burglary , retained counsel, and was out on bond when he was arrested again, this

time for the murders

. T he Court said that t he Sixth Amendment right t o counsel did not bar police from interrogating the defe ndant about the murders, despite the fact that they arose from the same incident

. A defendant’s

statements regarding offenses for which the Sixth Amendment right to counsel has not attached are admis sible , even if the right has already attached for other pending charges

.

E

. Waiver and Invocation

1. Waiver

Once the right to counsel has attached, the government may not attempt to elicit information from the accused without

first advis ing him of his right to have counsel

, and then obtaining a voluntary, intelligent waiver. Although Sixth

Amendment rights differ from the Fifth Amendment Miranda rights, t he Supreme Court held that the same warnings can be used to get a waiver of either of these rights . There is no requirement to inform the accused that he has been charged, or

as to the nature of the charge. Note, however, that a suspect’s

waiver of the Miranda right to counsel while in custody i s not a__________ _____ 5 th and 6 th Amendments 501 waiver of his Sixth Amendment right to counsel, unless the Sixth Amendment right had already attached at the time he

waived

.

2. Undercover Agents an d Informants

Unlike a Miranda situation, once the Sixth Amendment right has attached, the government can no longer use an undercover officer or confidential informant to question, or otherwise elicit information, from a defendant about the charged crime

. This form of governme nt questioning is still considered a critical stage, and it is not possible to obtain a proper waiver. However , covert agents who merely listen to the accused, without actively eliciting the information , or who

discuss other crimes, do not violate the rig ht. The undercover operative must be careful not to discuss the charged crime with the accused, because even absent any actual questions, it could be seen as an attempt to elicit information.

3. Invoking the Right

If the Sixth Amendment right has merely attached, officers can still obtain a waiver and ask questions. But once

the accused invokes that right, i.e., requests an attorney, the
government may not even attempt to question him or obtain information about the charged crime. At that point, a ny waiver of the right obtained without defense counsel present will be ineffective, unless the contact was initiated by the accused. And even if the accused approaches the of ficer, if he has actually obtained representation already, the waiver may be problematic because of ethical rules imposed by the McDade

Amendment.

Law enforcement officers should be aware that if the Sixth Amendment right was triggered by a suspect’s init ial appearance, he has already been asked by the Magistrate Judge if he has or desires counsel. As most defendants respond affirmatively, this will mean the right has been invoked at that point. By contrast, a suspect that is first indicted could be

appr oached and questioned if a valid waiver is obtained by_______________ 5 th and 6 th Amendments 502 reading Miranda warnings (assuming he did not retain counsel already).

F. The McDade Amendment

A federal statute, 18 U

. S

. C

. § 530B, commonly referred to as the “McDade Amendment”, subjects federal prosecutors to the general ethical obligations of the me mbers of the legal profession while in performance of their federal duties. Included in the common ethical rules that apply to attorneys

are : (1) a “no contact rule” that bars communications by a lawyer with a person represented by another lawyer in a matter that concerns the representation, and (2) a rule that can hold a

gove rnment attorney responsible for the actions of others (such as federal investigators) they direct, which would violate an ethical rule if done by the attorney.

As a result of the interplay of these rules, a prosecutor may be reluctant to make contact, or to direct federal agents to make contact, with any witness or suspect known to be represented by an attorney in the matter under investigation. When the ethical obligation applies, the prosecutor may insist that agents make the contact only if the witness /suspect’s counsel is present or otherwise permits the contact. Unlike a constitutional right, this ethical requirement cannot be waived by the represented person, even where he initiates the contact

.

Violation of the “no contact” ethical requirement cou ld subject the prosecutor to discipline by state bar authorities

- even in situations whe n it was actually the investigator that

made the contact. As non

- attorney s , investigator s cannot be subjected to such discipline themselves . Due to the concerns

invo lved, 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.__________ _____ 5 th and 6 th Amendments 503 VI II

. Fifth Amendment Due Process and Identification

Proced ures

A. Generally

Eyewitness identification evidence, an important law enforcement tool, is affected by the Due Process Clause of the Fifth Amendment. Under the Due Process Clause, pretrial

identification evidence can be s uppressed if the court finds that the procedures used were so “impermissibly suggestive as to give rise to a very substantial likelihood of irreparable mistaken

identification.” If the line

- up is impermissibly suggestive,

officers will not be allowed to t ell the jury which person the

witness identified out of the line

- up. The witness may not even be allowed to identify the accused as he sits in the courtroom if there is a genuine question about whether the witness’ memory

of his physical appearance comes from the suggestive line

- up, or from the events of the actual crime.

B

. Types of Identification Procedures

Generally, there are three types of procedures used by law

enforcement officers to determ ine if a witness or victim can identify the perpetrator of a crime:

**•** Line

- ups

. The witness views a number of actual potential suspects in an attempt to identify the perpetrator of a crime.

**•** Photo Displays/Arrays

. The witness views a number of photographs of persons in an attempt to identify the perpetrator of a crime.

**•** Show

- Ups

. The witness, in a direct one

- on

- one showing of an actual person, attempts to identify the perpetrator of a crime._______________ 5 th and 6 th Amendments 504 1. Line

- ups

A defendant does not have a Fifth Amendment right to refuse to participate in a line

- up, since it is “non

- testimonial” in

nature. But a lin e

- up can be unduly suggestive if the defendant

m atches a witness’ description and the other line

- up participants obviously do not (e.g., the defendant is 6’0” tall, and the other participants are all 5’6” or less)

. A l ine

- up in

which the suspect is the on ly participant wearing the distinctive clothing described by the victim substantially increase s the dangers of misidentification. However, a line

- up of “clones” is not required.

2. Photo Arrays/Displays

To determine whether a p hoto display is impermissibly suggestive under the Fifth Amendment, a number of factors may be relevant, including the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves.

( a ) Size of the Array

When a relatively low number of photographs are used in an array, minor differences such as background color can make a picture stand out, and can act to repeatedly draw a witness’s eyes to that picture. Common sense dictates that slight irregularities a re more likely to “jump out” at a witness reviewing a single sheet of paper with only six photographs on it than at a witness reviewing a large mug book containing hundreds of photographs. The lower the number of photographs used in a photo array, the cl oser the array must be scrutinized for suggestive irregularities. Generally, using six photographs in an array has been upheld by the courts.

( b ) Manner of Presentation

I mproper presentation of photographs may sometimes

cause witnesses to err in identif ying criminals. Examples of__________ _____ 5 th and 6 th Amendments 505 presentations that may increase the risk of misidentification include (1) repetitive showing of suspect’s photo; (2) emphasizing a photo; (3) displaying photos of several individuals, but where the suspect’s image keeps repeati ng or is in some way emphasized; (4) indicating to a witness that police have other evidence that one of the persons pictured committed the crime; (5) telling a witness to assume the suspect is in the array; (6) using a suspect’s photo that is a different color than the others in the array; (7) the details of the photographs

themselves.

3. Show

- ups

The practice of showing a suspect directly to a witness for the purpose of identification, and not as part of a line

- up, has been widely condemned. Nevertheless, show

- ups can be proper and not overly suggestive under certain circumstances.

Show

- ups that occur shortly after a crime are permissible. Immediate show

- ups are a reasonable way to

further fair and effective law

- enforcement as they allow

identification b efore the suspect has altered his appearance, while the witness’ memory is fresh. This may help lead to the quick release of innocent persons. In some cases, such as where a victim is hospitalized, show

- ups may be the only viable option, and courts have allowed this._______________ 5 th and 6 th Amendments 506 

### NOTES_______________ Use of Force

– Legal Aspects 507 

## Chapter Fourteen

Use of Force

- Legal Aspects

I. I NTRODUCTIO N

................................ ................................ . 508

A. Non

- Deadly Force and Reasonableness

............................. 508

B. No “Perfect Answer” when Using Force

.............................. 509

C. Factors in Determining Excessive Force

............................ 509

D. Handcuffing and Pointing Weapons during Terry Stops

.... 511

1. Handcuffs Not Automatically an Arrest

....................... 511

2. Pointing a Weapon Not Automatically an Arrest

........... 511

3. “Officer Safety” as a Reason

................................ ......... 512

II. T HE U SE OF D EADLY F ORCE

................................ ............... 512

A. Definitions

................................ ................................ ........ 512

1. Deadly Force

................................ ................................ 512

2. Serious Physical Injury

................................ ................ 512

B. Use of Deadly Force

- Objective Reasonableness

............... 513

C. Other Aspects of Objective Reasonableness

....................... 515

1. Officer Need Not “Fear For His Life”

.............................. 515

2. Warning Shots Are Not Explicitly Prohibited

................ 516

3. The Offense Can Be a Felony or Misdemeanor

............. 516

4. Verbal Warnings Ar e Not Always Required

................... 516

5. No Need to Exhaust All Lesser Forms of Force

............. 516

6. No Duty to Retreat

................................ ....................... 516

D. Examples

................................ ................................ .......... 517

1. Unarmed, Handcuffed Suspect

................................ .... 517

2. Fleeing, Dangerous Subject Armed W ith a Knife

.......... 518

3. Unarmed Robbery Suspect Who Reached Into His Coat 519

4. Suspect Attacks with a Magnetic Key Holder

............... 520

5. Unarmed, Fleeing Burglar

................................ ............ 520

E. Agency Policy Restrictions

................................ ................. 522

III

. S TRIKING I NSTRUMENTS AND C HEMICAL S PRAYS

.................... 522

A. Striking Instruments

- Generally

................................ ....... 522

B. The Rules Outlined in Graham Apply

................................ 522

C. Gratuitous Blows

................................ .............................. 522

D. Examples

................................ ................................ .......... 523

1. Strikes Handcuffed S uspect with Nightstick

................ 523

2. Strikes Non

- Resisting Suspect with Flashlight

............. 524

3. Strikes Armed Robbery Arrestee with Flashligh t

.......... 524

4. Strikes Arrestee with Flashlight and Nightstick

............ 525_______________ Use of Force

– Legal Aspects 508 E. Chemical Sprays

- Generally

................................ ............. 526

1. When Chemical Sprays Are Excessive

.......................... 526

2. When Chemical Sprays Are Reasonable

....................... 527

F. Example s

................................ ................................ .......... 528

1. Use of Chemical Spray Reasonable

.............................. 528

2. Use of Chemical Spray Unreasonable

........................... 531

IV. Q UALIFIED I MMUNITY

................................ ........................ 532

A. Defining Qualified Immunity

................................ ............. 532

B. The Rationale Behind Qualified Immunity

......................... 533

C. When Officers are Entitled to Qualified Immunity

............. 533

D. Not a “Good Faith” Defense

................................ ............... 533

E. Analyzing Claims of Qualified Immunity

............................ 534

1. Did a Constitutional Violation Occur?

.......................... 534

2. Was the Right “Clearly Established”?

........................... 534

F. Reasonable Mistakes

................................ ......................... 53 5

G. Examples

................................ ................................ .......... 535

1. Reasonable but Mistaken Belief as to the Law

.............. 535

2. Reasonable But Mistaken Belief as to the Facts

........... 535



## *****

I. Introduction

Perhaps no issue can impact on the personal and professional career of a law enforcement officer than a lawsuit alleging excessive use of force.

A. Non

- Deadly Force and Reasonableness

Most officers will use non

- deadly force far more frequently than they will use deadly force. The constitutional standard for using any force, whether deadly or not, is the Fourth

Amend ment standard of “objective reasonableness.” In Graham

v. Connor 1 , the Supreme Court made clear that the right to make an arrest or investigatory stop necessari ly carries with it the right to use some degree of physical coercion or threat

thereof to a ffect it. The Court recognized that the test of

reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, so proper

1 Cases named in this chapter without a case cite are briefed in the companion book, Legal Division Reference Book._______________ Use of Force

– Legal Aspects 509 application requires careful attention to the facts and circumstances of each particular case.

B. There is No “Perfect Answer” when Using Force

The Supreme Court explained in Graham what standard

courts should use to determine if the use of force was

reasonable:

Based on a totality of circumstances . . . the reasonableness of a particu lar use of force must be judged from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight[.] . . . As in other Fourth Amendment contexts, however, the reasonableness inquiry in an excessive force case is an object ive one: the question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to underlying intent or motivation....

Not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers,

violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split

second judgments

- in circumstances that are tense, uncertain, and rapi dly evolving

- about the amount of force that is necessary in a particular

situation.

C. Factors to Consider in Determining Whether

Excessive Force was Used

In Graham , the Supreme Court emphasized four key factors that courts will examine when determining what level of force is justified in a use of force encounter :

**•** Sever ity of the crime._______________ Use of Force

– Legal Aspects 510 **•** Whether the suspect is an immediate threat to the safety of the officer or others. ( This is the most important single factor.)

**•** Whether the suspect is actively resisting arrest, or

**•** Is attempting to evade arrest by flight.

Since Graham , courts have used additional factors to determine whether use of force is reasonable in a particular case, including:

**•** The number of suspects and officers involved.

**•** The size, age, and condition of the officer and
suspect.

**•** The duration of the action.

**•** Wh ether the force applied resulted in injury.

**•** Previous violent history of the suspect, known by

the officer at the time.

**•** The use of alcohol or drugs by the suspect.

**•** The suspect’s mental or psychiatric history, known by the officer at the time.

**•** The presen ce of innocent bystanders.

**•** The availability of other weapons (sprays, batons, tasers)._______________ Use of Force

– Legal Aspects 511 D. Handcuffing and Pointing Weapons during Terry Stops

1. Using Handcuffs Does Not Au tomatically

Convert a Seizure i nto a n Arrest

Because safety may require you to temporarily freeze a potentially dangerous situation, using handcuffs may be

reasonable duri ng a Terry stop. Handcuffing a suspect does not

transform a Terry stop into a full custodial arrest, provided the use of handcuffs is reasonably necessary to assure the safety of officers or bystanders. Handcuffing can be a reasonable attempt

to restrain a suspect as long as the officer can articulate a reasonable factual justification for the restraint.

For instance, pointing a firearm at and handcuffing a suspect can be reasonable when a suspect matches the description of an armed and dangerous suspect. In United States v. Vargas , 369 F. 3d 98 (2d Cir. 2004) officers had reliable information that Vargas was carrying a weapon. Vargas had demonstrated his unwillingness to cooperate by fleeing from the police when first contacted and continuing to struggl e with one of the officers after he was stopped. Immediately upon intercepting Vargas, the officer placed him in handcuffs and conducted a pat

- down search for weapons, which revealed a

concealed firearm. The court held that the level of force used

was re asonable under the circumstances, and that Vargas was not arrested until the discovery of the firearm.

2. Pointing a Weapon at a Suspect Does Not Automatically Convert a Seizure into an Arrest

As with the use of handcuffs, there is no rule that pointing guns at people constitutes an arrest. Instead, the use of guns in co nnection with a stop is permissible when you reasonably believe such action is necessary for your protection. Courts have held that intrusive and aggressive police conduct is not an arrest when it is a reasonable response to legitimate safety concerns on the part of the investigating officers. United

States v. Miles , 247 F.3d 1009 (9th Cir. 2001)

._______________ Use of Force

– Legal Aspects 512 3. “Officer Safety” as a Reason f or a Particular Use of Force

Simply stating that a particular use of force, such as handcuffing, pointing a weapon, or using a baton or chemical spray on a suspect, was done for “officer safe ty” is not sufficient. “Officer safety” is the conclusion that you reach when presented with facts that lead you to believe that your safety is a concern, or is in jeopardy. You must be able to articulate specific facts, since these facts will be used to judge your particular use of force. For example :



### NOT

II. The Use of Deadly Force

A. Definitions

The following definitions are useful in explaining the rules regarding “deadly force.”

1. Deadly Force

In the majority of circuits, “deadly force” is defined as that force which is reasonably likely to cause death or serious physical injury.

2. Serious Physical Injury

Ty pically, “serious physical injury” is defined as any bodily injury which involves: (1) a substantial risk of death; or (2) extreme physical pain; or (3) protracted and obvious

I handcuffed and frisked the suspect because he had a bulge in his jacket pocket and he would not keep his hand out of that pocket after being told to do so. I handcuffed a nd frisked the suspect for “officer safety.”_______________ Use of Force

– Legal Aspects 513 disfigurement; or (4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

B. Use of Deadly Force

– Objective Reasonableness

As stated above, all claims of excessive force by law

enforcement officers

— deadly or not

— are analyzed under the Fourth Amendment’s “objective reasonableness” standard. Whether or not an officer’s actions constitute deadly force, all

that matters is whether the officer’s acti ons were objectively reasonable. This determination depends upon the underlying facts and circumstances of each particular case.

In Scott v. Harris the Supreme decided a case involving a high speed vehicle pursuit. A deputy chased a vehicle for speeding (73 mph in a 55 mph zone) at speeds approaching 90 mph down mostly two

- lane roads with other vehicular traffic present. S ix minutes and nearly ten miles after the chase started, a deputy received permission to stop the pursuit by using a precision Intervention Technique (“PIT”). However, the deputy concluded that the suspect vehicle was traveling too fast, so instead he app lied his push bumper to the rear of the suspect’s vehicle. As a result, the suspect lost control of his car, which left the roadway, ran down an embankment, overturned and crashed. The suspect was badly injured and rendered a quadriplegic. He filed a ci vil rights lawsuit alleging

excessive force under the Fourth Amendment.

On appeal, the Supreme Court said that a Fourth

Amen dment seizure occurs when there is a governmental termination of freedom of movement through means intentionally applied. The Supreme Court noted that the police cruiser’s videotape showed the following facts: the suspect’s vehicle was racing down narro w, two

- lane roads in the dead of night at speeds that are shockingly fast. The suspect swerved around more than a dozen other cars, crossed the double

- yellow line, and forced cars traveling in both directions to their respective shoulders to avoid being h it. The suspect’s vehicle ran multiple red lights and traveled for a considerable time in

the center left

- turn

- only lane. The Court noted that the_______________ Use of Force

– Legal Aspects 514 suspect’s driving put the police officers and innocent bystanders alike at great risk of serious injury. T he Court looked not only at the number of lives at risks, but also the relative culpability of the suspect and innocent public. The Court said that it was the suspect, after all, who intentionally placed himself and the public in danger by unlawfully enga ging in the reckless, high

- speed flight that ultimately produced the choice to the deputy: use deadly force against the suspect to stop the risk of serious bodily injury or death he posed to the public or do nothing and take the risk that the suspect woul d injure or kill an innocent party.

Based on the totality of the facts and circumstances, the Supreme Court ruled the car chase that the fleeing motorist initiated posed a substantial and immediate risk of serious physical injury to others. As such, th e deputy’s attempt to terminate the chase by forcing the motorist off the road was objectively reasonable and therefore the deputy was entitled to summary judgment based upon qualified immunity, which resulted in the dismissal of the lawsuit against him.

In Tennessee v. Garner the Supreme Court announced one set of constitutional requirements regarding deadly forc e. The Court held that, under the Fourth Amendment, you may

not use deadly force to prevent the escape of an unarmed and

non

- dangerous property crime suspect. By way of example only,

the Court then laid out one set of circumstances under which you might co nstitutionally employ deadly force to prevent the escape of a fleeing dangerous suspect. Specifically, the Court

noted:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical

harm , either to the officer or to o thers , it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving

the infliction or threatened infl iction of serious physical harm, deadly force may be used if_______________ Use of Force

– Legal Aspects 515 necessary to prevent escape, and if, where feasible, some warning has been given (underline added)

.

In Scott the Supreme Court said that the necessity

described in Garner was, in fact, the need to prevent “serious physical harm, either to the officer or to others.”

For example, a police officer responds to a bank holdup.

The officer looks inside the bank and sees a masked individual standing with his arm extended toward several people who have their arms raised above their heads. However, due to an obstruction, the officer is unable to see if the masked man has an object in his hand. Thereafter, the suspect runs out of the bank carrying a bag in his hand. The officer twic e calls out, "Halt, police," to the fleeing suspect. The fleeing suspect disregards the verbal warnings and instead continues to flee. The officer shoots the fleeing suspect.

The officer’s actions were objectively reasonable under the

circumstances. Under the totality of the information the officer possessed when he fired at the suspect, the officer had probable cause to believe that the suspect posed a threat of serious physical harm to himself and to others. Ford v. Childers , 855 F.2d 1271 (7th Cir. 198 8).

C. Other Aspects of Objective Reasonableness

Objective reasonableness can involve many factors. Below are general insights concerning the use of deadly force:

1. You Need Not “Fear f or Your Life” Before Using Deadly Force

Objective reasonableness does not require that you “fear for your life” before using deadly force. For example, snipers may justifiably shoot a hostage taker from a distance without any subjective fear of harm._______________ Use of Force

– Legal Aspects 516 2. Warning Shots Are Not Explicitly Prohibited

Objective reasonableness does not explicitly prohibit the use of warning shots. However, the use o f warning shots is often regulated by agency policy. For example, the Department of Homeland Security Policy on the Use of Deadly Force generally prohibits warning shots with an exception that allows warning shots by the Secret Service exercising protecti ve responsibilities.

3. The Offense Can Be a Felony or Misdemeanor

The Constituti on does not require that the offense be a felony. Instead, the focus is on the threat of violence to the officer or others. You may encounter violent misdemeanor assaults involving weapons as well as non

- violent felonies like

financial fraud.

4. Verbal Warnings Are Not Always Required Before Deadly Force Can Be Used

If feasible to do so, giving a warning before using deadly force may help make the force reasonable. A warning is not required before every use of deadly force, and nothing mandates that the warning be verbal.

5. You Need Not Exhaust All Lesser Forms of

Force b efore Usi ng Deadly Force

You are not required to exhaust all lesser forms of force

before r esorting to deadly force. However, even when deadly force is authorized, you can always use a lesser amount of

force.

6. You Have No Duty to Retreat b efore Using Deadly Force

Some states have imposed a “duty to retreat” on private citizens before permitting those citizens to use deadly force. However, you are under no legal duty to retreat before using deadly force. O f course, there is no rule preventing you from_______________ Use of Force

– Legal Aspects 517 retreating should you consider it best to do so. There may be sound tactical reasons for disengaging and retreating to cover, and you are not legally required to remain in place.

D. Examples

The following cases illustrate basic principles regarding the use of deadly force.

1. Officer Shoots Unarmed, Handcuffed Suspect

who is R unning Towards Him and Who the Officer Reasonably Believed Was Armed

In McLenagan v. Karnes , 27 F.3d 1002 (4th Cir.), cert.

denied 2 , 513 U.S. 1 018 (1994), two arrested suspects were sitting in a break room with an officer (Smith) awaiting transport to jail. Both arrestees were handcuffed in the front of their bodies. Unfortunately, a magistrate on the scene that night had left a firearm unatten ded in an adjoining office while taking a restroom break. When one of the arrestees jumped up and bolted into the office where the gun was located, Smith ran from the break room yelling, “The man has got a gun!” several times. The other arrestee (McLenag an) followed Smith out of the room in an attempt to avoid the perceived danger. Because he was handcuffed, McLenagan was crouched over while he ran. Smith, still yelling, “The man has got a gun,” ran past another officer (Karnes), who was escorting a det ainee down the main hallway toward the front door, away from the break room.

2 Cert. denied means that the Supreme Court refused to consider an appeal of the appellate court’s decisi on. 

### Use of Deadly Force

**•** Fear Not Required

**•** Felony or Misdemeanor

**•** No Need to Exhaust Lesser Force Options

**•** No Duty to Retreat_______________ Use of Force

– Legal Aspects 518 Karnes immediately drew his gun, wheeled and saw McLenagan almost upon him; Karnes could not see whether McLenagan had a gun in his hands. Karnes fired one shot, wounding

McLena gan.

The court held that Karnes acted reasonably and dismissed the civil lawsuit. The court noted they would not

second

- guess the split

- second judgment of a trained police officer merely because that judgment turns out to be mistaken, particularly where i naction could have resulted in death or serious injury to the officer and others. Here, Karnes had a credible warning that an imminent danger existed based upon Smith’s statements. Also, Karnes had no ability to provide a verbal warning to McLenagan becaus e, when he turned and drew his weapon, McLenagan, in full flight, was virtually upon him. For all Karnes knew, the hesitation involved in giving a warning could readily cause such a warning to be his last. Finally, the court found it would not be wise to require a police officer, in all instances, to actually detect the presence of an object in a suspect’s hands before firing on him. In other words, it was not necessary for Karnes to actually see the weapon in McLenagan’s hands before he resorted to deadl y force.

2. Officer Shoots a Fleeing, Dangerous Subject

Armed w ith a Knife

In Krueger v. Fuhr , 991 F.2d 435 (8th Cir.), cert. denied

, 510 U.S. 946 (1993), an officer (Fuhr) was chasing an assault suspect (Krueger) who was thought to be an escapee from a halfway house, high on drugs, and armed with a knife. Fuhr repeatedly ordered Krueger to “freeze” during the chase. As he got within 3

- 4 yards of Krueger, Fuhr observed him reach into

h is waistband and retrieve a knife. Believing Krueger was preparing to turn to attack him with the knife, Fuhr shot him in the back, killing him with one round to the base of the skull.

The court held that Fuhr acted reasonably in using deadly force. Fir st, because he received information that Krueger was intoxicated, had a knife, and was fleeing an assault, Fuhr reasonably believed he was dealing with an armed_______________ Use of Force

– Legal Aspects 519 and dangerous suspect. Second, because there was probable cause to believe that Krueger posed a threat of serious physical harm and had previously committed an assault, the use of deadly force was necessary to prevent Krueger’s escape. And third, while Fuhr did not give a verbal warning immediately preceding the shooting, he had given warnings thro ughout the course of the pursuit.

3. Officer Shoots Unarmed Suspected Robber

Who Reached i nto His Coat

In Sherrod v. Berry , 856 F.2d 802 (7th Cir. 1988), two officers pulled over two men in a vehicle who were suspected of an armed robbery. Both officers had their weapons drawn as they approached the vehicle. The suspects raised their hands

o nly after being told to do so three times by the officers. As one of the officers (Berry) approached the vehicle, he observed the driver make a quick movement with his hand into his coat as if he was going to reach for a weapon. The officer shot, killing the suspect (Sherrod) instantly.

During the civil lawsuit that followed, the plaintiff (Sherrod’s family) was allowed to present evidence that, following the shooting, a search of the suspect indicated he was unarmed at the time he was shot. The jury ret urned a verdict against Berry, who appealed. In reversing the jury verdict and remanding the case for a new trial, the appellate court reiterated that knowledge of facts and circumstances gained after the fact (that the suspect was unarmed) had no place i n the trial court’s or jury’s analysis of the reasonableness of the officer’s judgment. By admitting this evidence, the judge allowed the jurors to possess more information than Berry possessed when he made the crucial decision. This was improper. An

off icer’s liability must be determined exclusively upon an examination and weighing of the information the officer possessed immediately prior to and at the very moment he fired the fatal shot. In sum, the court held that, when, as here, you

believe that a s uspect’s actions place you, your partner, or those in the immediate vicinity in imminent danger of death or serious bodily injury, you may reasonably use deadly force._______________ Use of Force

– Legal Aspects 520 4. Officer Shoots Suspect Who Attacked His Partner with a Magnetic Key Holder

In Lowery v. Stovall , 92 F.3d 219, (4th Cir. 1996), cert.
denied , 519 U.S. 1113 (1997), an officer (Redd) made a routine traffic stop and placed the suspect (Lowery) in the front seat of the patrol c ar while he wrote the ticket. A second officer (Stovall) was in the back seat. At a certain point, Lowery pulled an object out of his pocket and cut Redd on the face. When Redd yelled “knife,” Stovall attempted to stop the attack. Lowery

started to clim b over the seat and swung the object at Stovall. Stovall blocked Lowery’s arm, drew his firearm and shot Lowery in the head. After the incident, officers determined that the object was a magnetic key holder, not a knife.

The use of deadly force in this case was reasonable. The court noted that, upon seeing Lowery attack Redd and hearing Redd yell that Lowery had a knife, Stovall had probable cause to believe that Lowery posed a threat of serious harm to Redd. Accordingly, Stovall acted as a reasonable officer would have in

his situation.

5. Officer Shoots an Unarmed, Fleeing Burglar

In Ellis v. Wynalda , 999 F.2d 243 (7th Cir. 1993), a suspect (Ellis) broke into a pharmacy by knocking a hole through an adjoining building with a sledgehammer. In so doing, he tripped the burglar alarm. An officer (Wynalda) responded and observed Ellis walking away carrying a jacket and a mesh bag. Wynalda twice ordered Ellis to halt. Unexpectedly, Ellis threw his jacket and bag towards Wynalda, backed away, turned, and started to run away. The lightweight bag (4

- 5 pounds) hit Wynalda on the shoulder and then fell harmlessly to th e ground. As Ellis ran away, Wynalda shot him

once in the lower back.

The district court dismissed the lawsuit, but the circuit court reversed, finding that there remained questions as to whether the use of deadly force in this situation was

reasonable. First, Wynalda had no particular reason to believe_______________ Use of Force

– Legal Aspects 521 Ellis was armed. Second, while the tossing of the lightweight bag was risky and startling, it was not the equivalent of menacing Wynalda with a weapon. As noted by the court:

If Wynalda feared that the bag might be heavy and might knock the gun from his hand or provide an opportunity for Ellis to draw a concealed weapon, he would have been justified in firing at that moment, but not after the lightweight bag fell to the ground without injuring him and El lis had turned and run. In other words, if Wynalda had shot Ellis while Ellis was throwing the bag at him, that would have been permissible as the action of a reasonable officer facing a dangerous felon. Even if he shot Ellis after the bag had hit him but while he was still

disoriented and off

- balance, his action could be reasonable, because he would not know, for example, if Ellis was going to attack him or was reaching for a weapon. In this case, however, Wynalda was struck by the lightweight bag and

th en observed Ellis back away, turn and run. He could see and understand the situation; he bore no injury; Ellis presented no immediate threat and was not apparently armed. Even the bag he may have used as a weapon had been abandoned at the

officer’s feet.

Third, when an officer faces a situation in which he could justifiably shoot, he does not retain with impunity the right to shoot at any time thereafter. Although Wynalda could have shot Ellis during their physical encounter, since a reasonable

office r may have felt threatened, Wynalda had no reasonable fear of Ellis after he backed away and ran. If Ellis had threatened the officer with a weapon and then run off with the weapon, a reasonable officer in Wynalda’s place could believe

that Ellis created a danger to the community. However, here, Ellis tossed a lightweight bag up toward Wynalda and then ran away, without even that makeshift weapon to endanger anyone. While Ellis’ actions may seem foolish to the reasonable officer,_______________ Use of Force

– Legal Aspects 522 they do not give rise to a reasonable belief that Ellis presented a threat of serious harm to Wynalda or others.

E. Agency Policy Restrictions

The Fourth Amend ment sets a minimum standard for the use of deadly force. Agency policies often intentionally restrict the use of deadly force greater than the Constitution permits. Thus, it is possible to lawfully use deadly force in accordance with the Constitution, y et still violate policy. Policy violations may result in administrative discipline. However, while agency policies are relevant to the analysis of constitutionally excessive force, they do not automatically establish civil liability. The

courts will use the standard of reasonableness as defined by

Graham and Scott to decide if an officer violated a suspect’s constitutional rights.

III. Striking Instruments and Chemical Sprays

A. Strikin g Instruments

– Generally

Within the context of this course, the term “striking instruments” refers to those items within your possession that might be used to strike a blow against a subj ect. Generally, this would include flashlights and expandable batons.

B. The Rules Outlined in Graham Apply

As with any other use of force, your use of a striking instrument must be objectively r easonable based upon the totality of the circumstances known to you at the time of the incident. Whether your use of force was objectively reasonable requires the consideration of such factors as the severity of the crime, whether the suspect is an immedi ate threat to the safety of you or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

C. Gratuitous Blows

Gratuitous and completely unnecessary acts of violence by the police during a seizure violate the Fourth Amendment._______________ Use of Force

– Legal Aspects 523 Onc e a suspect has been restrained and is no longer resisting, any gratuitous blows to the suspect would generally be

unreasonable and violate the Fourth Amendment. “It is one thing to use force in subduing a potentially dangerous or violent suspect, and qui te another to proceed to gratuitously beat him.” Just because a certain degree of force to restrain a suspect may have been justified earlier in an encounter does not mean that such force still is justified once the suspect has been restrained.

D. Exampl es

The following cases illustrate basic principles reg arding the use of striking instruments, such as flashlights and expandable batons.

1. Officer Strikes Handcuffed Suspect in the Mouth with His Nightstick

In Lewis v. Downs , 774 F.2d 711 (6th Cir. 1985), officers Geil and Downs arrived and arrested a woman (Lewis) for causing a disturbance. In an attempt to prevent his mother from being taken to jail, Lewis’ son approached an officer with an iron rake. After Downs drew his weapon and ordered h im to drop the rake three times, the son did so. The son was then handcuffed and arrested. While being led to the police car, without justification Geil struck the son in the mouth with his nightstick, inflicting an injury to his mouth that ultimately

re quired several stitches.

The court determined Geil had used excessive force in striking the son in the mouth with his nightstick after having subdued and handcuffed him. “The unprovoked and unnecessary striking of a handcuffed citizen in the mouth with

a nightstick is clearly excessive. Because there was simply no reason for this type of conduct the striking could only be

deemed malicious.”_______________ Use of Force

– Legal Aspects 524 2. Officer Strikes Non

- Resisting Suspect in Stomach with Flashlight

In Dixon v. Richer , 922 F.2d 1456 (10th Cir. 1991), officers performed a Terry stop on Mr. Dixon and his wife. When Dixon was asked to put his hands on the van so a frisk could be performed, he complied. During the frisk, one office r (Richer) kicked Dixon in the instep, causing him intense pain. Dixon responded to this act by stating, “Is that f

—— g necessary?” No weapons were found during this frisk. When a second officer arrived, Dixon was again ordered to put his hands against t he van for a frisk, and again he complied. At that point, the officers began to pat him down again. Without warning, one of them kicked Mr. Dixon again, so forcefully that he started to fall. As Mr. Dixon fell, Richer hit him in the

stomach with a metal flashlight. Once on the ground, the deputies got on top of him and began to beat and choke him.

The court noted that when Dixon was kicked (the second time), struck with a flashlight, and then choked and beaten, he had already been frisked, had his hand s up against the van with his back to the officers, and was not making any aggressive moves or threats. While it is reasonable to frisk a detainee suspected of carrying a weapon, it is not reasonable to hit him in the stomach with a flashlight, or choke an d beat him, solely on the basis of that suspicion.

3. Officer Strikes Armed Robbery Suspect with Flashlight during Arrest

In Kellough v. Bertrand , 22 F. Supp. 2d 602 (S.D. Tex. 1998), officers performed a traffic stop on an individual (Kellough) who matched the description of an armed robbery suspect in an area where the suspect was believed to be. Upon exiting the vehicle, Kellough was ordered to lie face

- down on the road. Kellough d id not comply immediately and began to ask what he had done. Officers then took him to the ground and handcuffed him. Kellough alleged that one of the officers, Bertrand, struck him in the arm with a flashlight during this portion of the stop. Kellough was not the robbery suspect, and_______________ Use of Force

– Legal Aspects 525 a grand jury failed to indict him on charges of resisting arrest

and retaliation.

The court dismissed Kellough’s claim of excessive force. The court noted that, even accepting as true Kellough’s allegation that he exited his vehicle in a non

- threatening manner, his refusal to follow the officers’ instructions to go to the ground would probably justify a reasonable officer’s decision, in light of the circumstances, to employ some force to take him to the ground. While the c ourt found the allegation regarding the use of the flashlight to be “troubling,” Kellough had acknowledged that none of the officers struck him or employed any force whatsoever after he was handcuffed. Thus, assessing the situation from the perspective of a reasonable officer on the scene, it did not appear to the court that any of the actions identified by Kellough were excessive.

4. Officers Strike Suspect Resisting Arrest with Flashlight and Nightstick

In Cotton v. Busic , 793 F. Supp. 191 (S.D. Ind. 1992), the suspect (Cotton) went on a rampage one night by throwing rocks and creating a disturbance to which two police officers were summoned. Cotton and the officers then engaged in a scuffle which left Cotton with serious bumps and bruises and no left eye. Generally, Cotton was acting in an enraged, aggressive and threatening manner on the night that he was confronted by the officers. Cotton was armed with two hunks of

concrete whi ch he initially refused to put down when requested to do so by the officers. When the officers tried to arrest Cotton,

a scuffle ensued. A witness testified that Cotton was the aggressor, that Cotton got one of the officers in a “bear hug,”

and that Cott on was “strong as hell.” Once the officers got Cotton to the ground, he continued to struggle and resist the officers even while he was on the ground. The officers struck Cotton with both flashlights and nightsticks to make him comply. In the civil suit that followed, the jury returned a

verdict in favor of the officers on the excessive force claim. Cotton asked the judge to overturn the jury’s verdict. In upholding the jury’s verdict, the court stated:_______________ Use of Force

– Legal Aspects 526 The officers struck Cotton with a flashlight and a nightstick

- brutal stuff

- but the evidence is strong

that it was a brutal encounter. Nor can this Court

conclude that the force used was excessive because of the combination of the sad reality that Bobby Cotton’s eye socket was exploded and the fortunat e circumstance that the officers were not seriously hurt. A police officer need not suffer brutalizing injury before he inflicts it; rather, the restraint on

an officer’s use of force is that it must be

reasonable under the circumstances.

E. Chemical Sp rays

– Generally

The term “chemical sprays” typically refers to pepper spray ( Oleoresin Capsicum). However, the rules outlined below will likely apply to all other chemical sprays that may be used by law enforcement personnel. By way of definition, oleoresin capsicum (pepper gas) is an aerosol spray made from an oily

extract of th e capsicum pepper plant. When inhaled, it induces coughing, a gagging sensation, and an inability to vocalize. It is a less powerful version of the irritant gases marketed under the trade name Mace, and its use is authorized under standard police protoco ls in less threatening instances than those in

which the use of Mace is sanctioned.

1. When Chemical Sprays are Generally

Considered to be Excessive

The unreasonable use of chemical sprays may constitute excessive force. The analysis for use of chemical sprays as force is essentially the same a s that for the use of more traditional forms of physical control. Reasonableness is determined by the totality of the circumstances, including the arrestee’s conduct and the officer’s reasonable perception of the scenario. While every use of force must be measured against the particular circumstances of a given situation, some general rules regarding the use of chemical sprays can be outlined. Courts have consistently concluded that using chemical sprays is excessive force in the following types of cases:_______________ Use of Force

– Legal Aspects 527 (a) The Crime is a Minor Infraction

Generally, more force is appropriate for a more serious offense, and less force is appropriate for a less serious one. “Severity of the crime at issue” was one of the factors noted by

the Court in Graham . For example, the use of a chemical spray is more likely to be excessive when an arrest involves a minor

infraction like a seat belt violation.

(b) The Arrestee Surrenders, is Secured, and is Not Acting Violently

Graham noted that a court should consider whether the suspect is actively resisting arrest or attempting to evade arrest by flight. In one case, the use of a chemical spray against protesters was excessive, in part because the officers already had control over the protestors. It would have been clear to any reasonable officer that it was unnecessary to use pepper spray to bring them under control. The use of a chemical spray may be reasonable as a general policy to bring an arrestee under control. But, in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of a chemical spray, or a refusal without cause to alleviate its harmful effects, constitutes excessive force. The use of a chemical spray would be unreasonable if no assault occurred, and the suspect is not acting in a threatening or

violent manner.

(c) There is No Threat to the Officer s or Anyone

Else

Graham emphasized that courts should consider whether the suspect posed an immedia te threat to the safety of the officers or others. This is the most important single element of

the four factors outlined in Graham

.

2. When Chemical Sprays are Generally

Considered to be Reasonable

Courts have consistently concluded that using chemical sprays is reasonable in the followin g types of cases:_______________ Use of Force

– Legal Aspects 528 (a) The Suspect was Resisting Arrest

When a suspect is actively resisting arrest, a chemical spray may be a reasonable tool to obtain compliance. In fact, chemical sprays are often a very reasonable alternative to escalating a physical struggle with an arrestee. If an armed officer physically confronts an individual resisting arrest, any number of unforeseen contingencies (such as the officer losing his firearm) could occur. As a means of imposing force, chemical spray is generally of li mited intrusiveness. It is designed to disable a suspect without causing permanent physical injury.

(b) The Suspect was Refusing Police Requests

When a suspect is refusing lawful police commands, such as requests to get in a patrol car or to go to the h ospital, it may be reasonable to employ a chemical spray to obtain compliance.

(c) The Suspect Was Trying to Swallow Evidence

There is no constitutional right to destroy or hide evidence. Over the years, the courts have considered whether an officer’s use of force to obtain evidence from a suspect was appropriate. Many cases have found searches of a suspect’s person reasonable despite the fact that the evidence was obtained from the suspect’s mouth or other orifice. In one case, a court found the use of a chemical spray to prevent the suspect from swallowing crack cocaine to be reasonable under

the c ircumstances.

F. Examples

The following cases illustrate basic princi ples regarding the use of chemical sprays.

1. Use of Chemical Spray Reasonable

(a) Officer Uses Pepper Spray Against Handcuffed Suspect Who Was Struggling During an Arrest_______________ Use of Force

– Legal Aspects 529 In Griffin v. City of Clanton

, 932 F. Supp. 1359 (M.D. Ala. 1996), officers made a traffic stop of the suspect (Griffin). During the investigation, it appeared to the officers that Griffin was intoxicated. Griffin fled the scene of a traffic stop and was found shortly thereafter bang ing on the backdoor of a house that belonged to his aunt. Upon seeing the officers’ approach, Griffin ran inside the house. The officers chased him inside, cornered him in the living room, and began to struggle with him. Ultimately, the suspect was hand cuffed and lying face down on the floor, still struggling, with two officers on top of him. Another officer (Bearden) entered the house, did not see that Griffin was handcuffed, and believed that pepper spray was necessary to subdue him. The officer waite d for an opportunity to spray Griffin without hitting any officers, and then sprayed

him in the face.

Griffin claimed the use of pepper spray (among other things) was excessive under these circumstances. The court disagreed and dismissed the lawsuit. Fir st, Griffin had already

fled from the officers twice

- once from the scene of the traffic stop and once when he ran inside the home. Second, the officers believed Griffin was intoxicated. This was good cause to

believe that Griffin would continue to resi st arrest

- as proved to

be the case

- when he was confronted inside the house. Third, when Bearden arrived on the scene, it was chaotic. He could not see that Griffin had been handcuffed. And, while Bearden sprayed the OC directly into Griffin’s face, h e had a legitimate reason for so doing. Specifically, had Bearden diffused the spray more generally, he would have risked disabling the other officers, and Griffin might have had the opportunity to flee once again or to inflict harm upon an officer or him self.

(b) Officer Uses Pepper Spray Against Unarmed Man Refusing to Go to Hospital

In Monday v. Oullette

, 118 F.3d 1099 (6th Cir. 1997), the suspect (Monday) had a long history of drug and alcohol abuse, as well as depression. Physically, he was approximately 6’0" tall and weighed over 300 pounds. After receiving a call from a

mental health counselor that M onday was ingesting pills_______________ Use of Force

– Legal Aspects 530 (Xanax) and drinking alcohol in a suicide attempt, police arrived to investigate. After finding that over 20 of Monday’s pills were missing, the officers insisted he go to the hospital to be examined, but he refused. After appro ximately 20 minutes, Oullette informed Monday that if he did not go to the hospital, he would be sprayed with pepper spray. Monday continued to refuse, instead remaining seated and drinking a bottled beer. At that point, Oullette administered a single sp ray of pepper

spray.

In affirming the district court’s judgment in favor of Oullette, the court found Oullette’s use of pepper spray permissible based on the suspect’s refusal to go to the hospital. Here, Oullette warned Monday that if he did not agree t o go to the hospital, he would be sprayed. After many minutes of fruitless discussion, that’s exactly what happened. According to the court, Oullette’s decision to act on his warning (to spray Monday), rather than risk injury and further delay through a physical confrontation with a large and intoxicated person, did not constitute excessive force. While Monday was neither verbally nor physically abusive to the officers, numerous factors supported Oullette’s decision to resort to pepper spray: (1) Monday’s size; (2) the fact he had been drinking; (3) the fact he still was drinking from a bottle; and (4) Monday’s adamant refusal to go to the hospital. Further, resorting to physical force rather than pepper spray would have raised additional problems for the officers. In view of Monday’s size, his drinking and the beer bottle in his hand, Oullette chose to use pepper spray, which his department permitted him to do in his

discretion.

(c) Officer Uses Pepper Spray to Prevent a Suspect From Swallowing Evidence

In United States v. Holloway , 906 F. Supp. 1437 (D. Kan. 1995), the suspect (Holloway) was handcuffed and detained during the execution of a search warrant for drugs. When Holloway failed to respond audibly to several questions, officers became suspicious he had something in his mouth. Although Holloway was ordered to spit out whatever he had in his mou th,_______________ Use of Force

– Legal Aspects 531 he refused to do so. The officers then sprayed CAPSTUN into Holloway’s face, causing him to disgorge a quantity of cocaine

base from his mouth.

Holloway moved to suppress the evidence obtained from his mouth, claiming he had been the victim of excess ive force. The court refused, noting initially that there is no constitutional right to destroy or secret evidence. Nevertheless, evidence may not be obtained in violation of Holloway’s constitutional rights. In this case, the use of CAPSTUN was reasona ble, because (1) Holloway was only sprayed once, and (2) the physical force used in restraining Holloway and obtaining the contents of his mouth was reasonable under the totality of circumstances. Officers were not required to simply wait to let nature ta ke its course.

2. Use of Chemical Spray Unreasonable

(a) Officer Uses Pepper Spray Against Verbally Abusive Suspect who is handcuffed and

Secured in Rear of Patrol Vehicle

In Vinyard v. Wilson , 311 F.3d 1340 (11th Cir. 2002), an officer (Stanfield) arrested Vinyard for “disorderly conduct and

obstruc tion,” both minor offenses. Vinyard was handcuffed and placed in the back of the patrol vehicle for the ride to the jail, approximately 4 miles away. The vehicle had a plexiglass screen that separated the front and back seats. During the ride, Vinyard a nd Stanfield got into a verbal altercation, with Vinyard “screaming” at the officer. At a secluded place, Stanfield pulled the vehicle over, got out, and opened the back door where Vinyard was seated. He then pulled Vinyard’s head back by her hair and sp rayed her in the face with two to three bursts of pepper spray. At all times during this incident, Vinyard was handcuffed and located in the back seat of the vehicle. Further, Vinyard was 5’3" tall and weighed 130 pounds, while Stanfield was 6’0" and wei ghed over 200 pounds.

The circuit court found it abundantly clear that Stanfield’s use of the pepper spray against Vinyard was plainly excessive, wholly unnecessary, and, indeed, grossly_______________ Use of Force

– Legal Aspects 532 disproportionate under Graham . Relying on the four factors

outlined in Graham, the court noted the following: First, the crimes for which Vinyard was arrested were of minor severity. Second, Vinyard posed no threat, immediate or otherwise, to Stanfield or anyone else, because (a) she was handcuffed, (b)

she was secured i n the back of the patrol vehicle, and (c) there was a glass partition separating her from Stanfield. Finally, and for many of the same reasons noted above, there was no evidence that Vinyard resisted arrest or attempted to flee.

(b) Officer Uses Pepper Spr ay on Unarmed

Woman

In Park v. Shiflett , 250 F.3d 843 (4th Cir. 2001), Park and

her husband inadverten tly tripped the alarm of a store they had entered mistakenly believing it was open. They immediately called 911 to report what had occurred, and waited for officers to arrive. Upon arrival, the officers checked the store and found nothing to indicate a f orced entry. When Mr. Park sought to return home to turn off a stove that had been left burning, he was handcuffed and detained by the officers. When Mrs. Park observed this, she began approaching her husband, but was stopped by one of the officers, who twisted Mrs. Park’s arm behind her back, threw her up against the building, and handcuffed her. He sprayed her twice in the eyes from close range. Neither Mr. Park nor Mrs. Park was charged with any

crime.

The circuit court found it difficult to imagine the unarmed Mrs. Park as a threat to the officers or the public. The irresponsible use of pepper spray twice from close range on the

unarmed Mrs. Park was indeed excessive.

IV. Qualified Immunity

A. Defining Q ualified Immunity

Qualified immunity is immunity from civil suit and entitles an officer to avoid standing trial or face the burdens

associated with c ivil litigation. When a law enforcement officer_______________ Use of Force

– Legal Aspects 533 is civilly sued for using excessive force during the seizure of a person, the officer may assert “qualified immunity.” If successful, the lawsuit against the officer is dismissed.

B. The Rationale Behind Qu alified Immunity

The rationale behind qualified immunity for police officers

is two

- fold: (1) to permit officers to perform their duties without fear of constantly defending themselves against insubstantial claims for damages, and (2) to allow the public to recover damages when officers unreasonably violate a person’s constitutional or federal legal rights. The doctrine of qualified immunity is designed to protect all but the plainly incompeten t or those who knowingly violate the law.

C. When Officers are Entitled to Qualified Immunity

Law enforcement officers are entitled to qualified immunity when their actions do not vi olate a clearly established statutory or constitutional right that a reasonable officer would have known existed. Stated differently, when law enforcement officers reasonably, albeit mistakenly, violate a person’s constitutional rights, they

- like other officials who act in ways they reasonably believe to be lawful

- should not be held personally liable.

D. The Nature of Qualified Immunity

Qualifie d immunity is an affirmative defense. It must be raised by the officer. It is an individual defense. It protects the officer in an individual capacity and not the government entity employing the officer. The standard is “objective

reasonableness.” T he off icer’s subjective state of mind is

irrelevant. Although this type of immunity is sometimes referred to as “good faith” immunity, the officer’s subjective intent is irrelevant. The objective facts known to the officer at the time

will determine the reasona bleness of any action._______________ Use of Force

– Legal Aspects 534 E. Analyzing Claims of Qualified Immunity

In deciding whether to grant qualified immunity, courts

use a two

- part analysis.

1. Did a Constitutional Violation Occur?

The court must determine whether, under the plaintiff’s version of the facts, a constitutional violation occurred. If no

violation has occurre d, there is no basis for the lawsuit, and it

is dismissed.

2. Was the Right “Clearly Established?”

If the evidence shows that the plaintiff’s Constitutional rights were violated, the court must then consider whether the rights violated were “clearly established” at the time of the

violat ion. In addressing what is meant by the phrase “clearly established,” the Supreme Court in Wilson v. Layne has stated:

“Clearly established” for purposes of qualified immunity means that the contours of the right must be sufficiently clear that a reasona ble official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre

existing law the unlawfulness must be apparent.

If the law was not clearly established at the time an action occurred, an officer could not be reasonably expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously

identified as unlawful.

If a Constitutional right was violated, but the right was not clearly established at the time, the officer is entitled to qualified immunity from suit._______________ Use of Force

– Legal Aspects 535 F. Reasonable Mistakes Can be Ma de

Qualified immunity can apply if a mistaken belief is reasonable. A right is not clearly established if, based on the circumstances, a reasonable officer could have believed that the

conduct was within the bou nds of appropriate police responses. Officers can have reasonable, but mistaken beliefs as to what the law requires and still be entitled to qualified immunity. Likewise, officers can have reasonable but mistaken beliefs as to the facts justifying a use of force and still be entitled to qualified immunity.

G. Examples

The following cases illustrate reasonable but mistaken

beliefs that entitled the indi vidual officers to qualified immunity

from the civil lawsuit.

1. Reasonable but Mistaken Belief as to What the Law Requires

The case of Garner v. Memphis Police Department , 600 F.2d 52 ( 6th Cir. 1979) was part of the litigation that eventually

resulted in the landmark decision of Tennessee v. Garner

. During the litigation, the officer was granted qualified immunity by the district court because he had reasonably relied on the

state statut e that authorized his use of deadly force. (This state statute was later declared unconstitutional in part by the Supreme Court). The circuit court agreed, holding that an individual officer has a qualified immunity from liability for

constitutional claim s based on the good faith performance of duties in accordance with statutory or administrative authority.

2. Reasonable b ut Mistaken Belief as to the Facts Justifying a Use of Force

In Slattery v. Rizzo , 939 F.2d 213 (4th Cir. 1991), a police officer (Rizzo) involved in a narcotics “sting” operation identified himself and ordered a suspect (Slattery) to raise his hands at least twice. Slattery failed to respond, turned his head slowly_______________ Use of Force

– Legal Aspects 536 and looked at Rizzo who then yelled “police officer, get your hands up now.” Slattery’s hand was partially closed around an object. Slattery again turned his head slowly towards Rizzo and turned away. Rizzo again ordered Slattery to put his hands up.

S lattery then turned his entire upper body towards Rizzo. Rizzo could not see Slattery’s left hand. Believing Slattery was coming at him with a weapon, Rizzo shot him in the face. The object in Slattery’s hand was a beer bottle. The circuit court

held t hat Rizzo was entitled to qualified immunity because a reasonable officer could have had probable cause to believe Slattery posed a deadly threat, and therefore deadly force was

authorized._______________ Index i 

### INDEX

1

16 U.S.C. § 1a

- 6

nati onal park service jurisdiction, 8 park police arrest authority, 12 16 U.S.C. § 1a

- 6(b)(3)national park

service arrest authority, 10 16 U.S.C. § 559

forest service arrest authority, 11 16 U.S.C. § 668dd(g)

fish and wildlife service arrest authority, 11

16 U .S.C. § 831c (3) (c) tennessee valley authority jurisdiction, 9 16 U.S.C. § 831c

- 3(b)(2)(A) tennessee valley authority arrest authority, 11 16 U.S.C. §§ 1531

– 1543 Endangered Species Act, 27

16 U.S.C. §§ 3371

- 3378 Lacey Act, 26 16 U.S.C. §§ 470aa

Archaeol ogical Resources Protection Act, 28 16 U.S.C. §§ 472b, 668dd (g), 3375b

US fish and wildlife/national marine

fisheries service jurisdiction, 9 16 U.S.C. §§ 559, 559c, 559d

USDA forest service jurisdiction 16 U.S.C. §§ 668

- 668d Bald Eagle Protection Act, 28 16 U.S.C. §1377 Marine Mammal Protection Act, 27 18 U.S.C. § 1001, 177 18 U.S.C. § 111, 148, 149, 150 18 U.S.C. § 1111, 144 18 U.S.C. § 1114, 148, 149 18 U.S.C. § 13, 146 18 U.S.C. § 1341 mail fraud, 203
venue, 215 18 U.S.C. § 1343 wire fraud, 207

venue, 215 18 U.S.C. § 1503, 190, 196 judicial officers and jurors, 190 omnibus clause, 190, 196 18 U.S.C. § 1510, 191 bribery, 191 criminal investigations, 191 18 U.S.C. § 1512, 192, 194, 196, 197 extraterritorial jurisdiction, 194, 196 witness intimidation, 19 2 18 U.S.C. § 1513, 195 extraterritorial jurisdiction, 196 witness retaliation, 195, 196 18 U.S.C. § 2(a) aiding and abetting, 51 18 U.S.C. § 2(b) causing a crime, 52 18 U.S.C. § 201, 151, 152 bribery, 151 gratuities, 154 18 U.S.C. § 2311, 211 value, 211

1 8 U.S.C. § 2314, 209 counterfeit securities, 213 interstate transport of stolen property, 209 National Stolen Property Act
venue, 215 National Stolen Property Act, 209 travel fraud, 212
venue, 215 18 U.S.C. § 241, 37, 430 Conspiracy Against Civil Rights, 3 7 18 U.S.C. § 242, 432 18 U.S.C. § 2510 et seq

omnibus crime control and safe streets act of 1968, 219 18 U.S.C. § 2510(7)

title III

court order who can apply, 222_______________ Index ii 18 U.S.C. § 2510

court order who can issue, 227 18 U.S.C. § 2511

title III exemptions

wire and electronic communications, 229 18 U.S.C. § 2516

title III enumerated crimes, 222 18 U.S.C. § 2518

title III

court order application contents 18 U.S.C. § 2703

basic subscriber information defined, 240 subpoena, 242

contents court order, 244 subpoena, 24 4

transactional records court order, 242 defined, 241 18 U.S.C. § 2703(f) preservation order, 245 18 U.S.C. § 3 accessory after the fact, 52 18 U.S.C. § 3105, 123 computers, 472 18 U.S.C. § 3109 knock and announce, 349, 350 computers, 473 18 U.S.C. § 3117 electronic tracking devices, 232 18 U.S.C. § 3121 et seq pen register, 236 18 U.S.C. § 3146 bail jumping, 264 18 U.S.C. § 3237
venue, 215 18 U.S.C. § 328 2 statute of limitations, 46 18 U.S.C. § 3559, 145 18 U.S.C. § 371, 37 conspiracy, 37 18 U.S.C. § 3771, 199 justice for all act, 199 18 U.S.C. § 4 misprision of a felony, 53 18 U.S.C. § 530B McDade amendment, 502 18 U.S.C. § 641, 181 conversion, 185 embezzlement, 183 receipt of stolen property, 186 theft, 181, 182 felony, 182 theft of government property

mi sdemeanor, 182 18 U.S.C. § 7 special maritime and territorial jurisdiction, 7 18 U.S.C. § 922(a)(4), 162 18 U.S.C. § 922(g), 157 18 U.S.C. § 924(c)(1), 160 crime of violence, 160 drug trafficking crime, 160 18 U.S.C. § 930, 161 18 U.S.C. §§ 3121 et seq

tra p and trace device, 236 18U.S.C. § 3282 statute of limitations, 297



### 2

21 U.S.C. § 812, 167

controlled substances schedules, 167 21 U.S.C. § 841, 169 penalty, 170 21 U.S.C. § 844, 168 penalty, 170 21 U.S.C. § 846, 37 drug conspiracy, 37



### 3

36 C.F.R. 2.1

Pres ervation of Natural, Cultural and Archeological Resources, 16
36 C.F.R. 2.2 Wildlife Protection, 18
36 C.F.R. 2.3 Fishing, 20
36 C.F.R. 2.31 Trespassing, Tampering and Vandalism, 23_______________ Index iii 36 C.F.R. 2.34 Disorderly Conduct, 23

36 C.F.R. 3.5 Inspections, 29
36 C.F .R. 3.6 Prohibited Operations, 24

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



### 4

42 U.S.C. § 1983, 435 43 U.S.C. § 1733(c) bureau of land management jurisdiction, 8 43 U.S.C. § 373b

bureau of reclamation arrest authority, 12 jurisdiction, 8 43 U.S.C. §§ 1733(c)( 1) and (2) bureau of land management arrest authority, 11



### A

abandoned government property, 183 abandoned property REP, 313 absolute immunity, 441 Federal Tort Claims Act, 448 FTCA, 448 accessory after the fact 18 U.S.C. § 3, 52 actual border, 407 actual po ssession controlled substances, 169 adjudicated mentally defective

firearms prohibited person, 158 administrative search, 400 airport, 403 security checkpoint, 403, 404 border, 404 actual, 407 extended, 409 functional equivalent, 407

non

- routine, 406

routi ne, 405 business inspection, 401 general crime checkpoint, 401 information checkpoint, 401 license checkpoint, 400 sobriety checkpoint, 400 admissible evidence, 96 Federal Rules of Evidence, 96 advocating imminent lawlessness freedom of speech, 67, 89, 90 agency specific jurisdiction bureau of land management, 8 bureau of reclamation, 8 DOD land management officers, 9 land management, 8 national park service, 8 tennessee valley authority, 9
US fish and wildlife/national marine fisheries service, 9 US park p olice, 8 USDA forest service, 8 Aguilar confidential informants, 332, 334 aiding and abetting 18 U.S.C. § 2(b), 51 aircraft overflights, 315 airport search, 403 security checkpoint, 403, 404

amendments Constitution, 65 Bill of Rights, 65 bail, 77

confront witnesses, 76 double jeopardy, 73 due process of law, 75 freedom of assembly, 69 freedom of religion, 66 freedom of speech, 67, 79 fundamental rights, 78 grand jury indictment, 75 informed of charges, 76 right to counsel, 76 searches and seizures, 70

self

- incrimination, 74 speedy trial, 75
venue, 77 witness compulsory process,

76 anonymous tip basis of knowledge, 319 reliability, 318 anticipatory search warrant, 367_______________ Index iv anything of value bribery, 151, 152, 153, 154 apartment REP, 310 apparent authority, 394

com puters, 458 Archaeological Resources Protection

Act 16 U.S.C. §§ 470aa, 28 arguable probable cause, 438 arraignment, 274 waiver, 274 arrest, 316 authority, 345 citizen’s arrest authority, 345

de facto , 321

federal warrant execution, 346 foreign nationals, 269 consular access, 270 mandatory notification, 269 requested notification, 269 juvenile, 271 initial appearance, 272 Miranda, 272 members of congress, 271 breach of peace, 271 felony, 271 peace officer status, 345 pointing weapon, 511 probable cause, 325 speedy trial act, 299

state warrant execution, 346 statutory authority, 345 warrant, 342 criminal complaint, 342 entering a home, 347 execution, 343, 344 form, 343 indictment, 342 information, 342 no knock warrants, 354 return, 344 suspect’s home, 347

thi rd party’s home, 348 warrantless, 348 felonies, 348 misdemeanors, 348 arrest authority bureau of land management, 11 bureau of reclamation, 12 citizen’s arrest, 14 cross designation, 12, 14 DOD land management officers, 12 national marine fisheries, 11

nat ional park service, 10 peace officer status, 13 state offenses, 13 citizen’s arrest authority, 14 peace officer status, 13 tennessee valley authority, 11 US fish and wildlife service, 11 US park police, 12 USDA forest service, 11
arrest warrant, 257, 342

c riminal complaint, 259, 342 execution, 343, 344 entering a home, 347 suspect’s home, 347 third party’s home, 348 federal, 346 form, 343 indictment, 259, 342 information, 260, 342 no knock warrants, 354 return, 344 state, 346 assault, 147 18 U.S.C. § 111, 1 48, 149, 150 attempt, 147, 149, 150 civil liability, 447 deadly weapon, 150 forcibly, 148, 149 present apparent ability, 147,

149 intentional tort, 447 offensive touching, 147, 150 offer, 147, 149 official duties, 148, 149, 150 penalty, 150 deadly weapon, 150 present apparent ability, 147, 149 simple, 150 threat, 147, 149 Assimilative Crimes Act, 13, 143, 145,

146 18 U.S.C. § 13, 146_______________ Index v jurisdiction, 13, 145 concurrent, 146 exclusive, 146 proprietary, 146 assumption of risk negligent torts defenses, 453
attemp t to commit a crime, 50 attempted assault, 147, 149, 150 attorney

- client privilege, 108, 109



### B

bagging and tagging evidence, 114

bail Bill of Rights, 77 conditional release, 263 eighth amendment, 77 pretrial release, 263 bail jumping, 264 18 U.S.C. § 3146, 264 Bald Eagle Protection Act 16 U.S.C. §§ 668

- 668d, 28 basis of knowledge anonymous tip, 319 confidential informants, 334 informant, 319 battery, 147, 148, 150 bodily injury, 150 civil liability, 447 intentional tort, 447 offensive touching, 147, 150

bes t evidence rule, 116 computer evidence, 125 digital evidence, 125 duplicate, 117 original, 117 bias, 104 Bill of Rights, 65 bail, 77 confront witnesses, 76 double jeopardy, 73 due process of law, 75 freedom of assembly, 69 freedom of religion, 66

establish ment clause, 66 free exercise clause, 66 freedom of speech, 67, 79 fundamental rights, 78 grand jury indictment, 75 informed of charges, 76 right to counsel, 76 searches and seizures, 70

self

- incrimination, 74 speedy trial, 75
venue, 77 witness compulsory process, 76

Bivens analogy, 437 civil action, 436 common incidents, 437 excessive force, 439 failure to intervene, 440 false affidavit, 438 unlawful arrest, 437 unlawful search, 437

unlawful arrest arguable probable cause, 438

unlawful search arguable prob able cause, 438 bodily injury, 150 bonoculars, 314 booking questions exception Miranda warnings, 491 border search, 404 actual border, 407 extended border, 409 functional equivalent, 407

non

- routine, 406 routine, 405 Brady discovery, 289, 291 bribery, 151 18 U.S.C. § 1510, 191 anything of value, 151, 152, 153,

154 gifts, 154 directly or indirectly, 151, 152, 153 intent to influence, 151

, 152

, 153

, 154 official act, 151, 153, 154 public official, 151, 153, 154 testimony, 152 witness, 151

, 152

, 153
18 U.S.C. § 1510, 191_______________ Index vi bureau of land management arrest authority, 11 43 U.S.C. §§ 1733(c)(1) and (2),

11 jurisdiction, 8 43 U.S.C. § 1733(c), 8 subject matter jurisdiction, 11

bureau of reclamation arrest authority, 12 43 U.S.C. § 373b, 12 jurisdiction, 8
43 U.S. C. § 373b, 8 subject matter jurisdiction, 12 business inspection, 401

business records foundations, 116 hearsay, 119

self

- authentication, 118



### C

canine sniffs, 314 Carroll doctrine, 383 prerequisites, 384 rationale, 384 scope, 386 timing, 385

case in chief procedural stages criminal trial, 97 causing a crime 18 U.S.C. § 2(b), 52 cell phones inventory search, 466 search incident to arrest, 464

certification scope of employment FTCA, 452 chain of custody evidence, 114 challenging a foundation evidence, 115

cha nge of venue, 296 checks and balances, 63 chemical sprays use of force, 522, 526 examples, 528, 529, 530, 531,

532 excessive, 526, 527 reasonable, 527, 528 circuit courts of appeals, 253 en banc, 254 judges, 256 panels, 254 circumstantial evidence, 101

cit ation, 258, 288 citizen’s arrest authority, 14, 345

civil action Bivens, 436 Bivens analogy, 437 civil liability, 427, 429

Bivens arguable probable cause, 438 common incidents, 437 excessive force, 439 failure to intervene, 440 false affidavit, 438

unlawfu l arrest, 437 unlawful search, 437 intentional tort, 447, 449 assault, 447 battery, 447 conversion, 448 damage to land, 448 damage to personal property,

448 defenses, 453 emotional distress, 447 false arrest, 447 false imprisonment, 447 to property, 448

to the person, 447 negligent tort, 443, 448 defenses, 453 elements, 443 state law, 443 tort, 429 civil rights, 428 clear and present danger freedom of speech, 67, 90 clearly established right qualified immunity, 442, 443, 534 clergy

- communicant privilege, 10 8,

111 closing argument procedural stages criminal trial, 98

co

- conspirator’s statement, 43 hearsay, 121_______________ Index vii Code of Federal Regulations

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

16
36 C.F.R. 2.2 Wildlife Protection, 18

36 C. F.R. 2.3 Fishing, 20
36 C.F.R. 2.31 Trespassing, Tampering and Vandalism, 23
36 C.F.R. 2.34 Disorderly Conduct, 23

36 C.F.R. 3.5 Inspections, 29
36 C.F.R. 3.6 Prohibited Operations, 24

36 C.F.R. 4.2 State Law Applicable, 26 land management, 3, 14

collectiv e entities right to remain silent, 496

self

- incrimination, 496 collective knowledge, 318 common law, 144, 147 comparitive negligence negligent torts defenses, 453 computer evidence best evidence rule, 125 foundations, 123, 475 hearsay, 125 computer searche s, 455 computers

3 rd party possession REP, 458 consent search, 458 authority, 458 implied consent, 460 scope, 458, 459 third party consent, 459 voluntary, 458 inventory search, 465 standardized policy, 466 losing REP, 457 exposure to public, 457 plain view doctrine, 462 right to be, 462, 463 private search, 456 REP, 456

3 rd party possession, 458 losing, 457 exposure to public, 457 stolen, 457

search exigent circumstances, 461 search incident to arrest, 463 search warrant, 466 execution, 472 who, 472 indepen dent component doctrine, 467 knock and announce, 473 multiple warrants, 471

off

- site search, 469 scope, 467, 468 systems, 466 time limitations, 474 within the district, 471

stolen REP, 457 concurrent jurisdiction, 146 land management, 5

conditional release pretrial release, 263

condo REP, 310 confidential informants, 332 Aguilar, 332, 334 basis of knowledge, 334 credibility, 332 consistency between informants,

333 corroboration, 333 degree of detail, 333 face to face, 333 first hand information, 333

stateme nts against interest, 333 track record, 318, 333 reliability, 332 consistency between informants,

333 corroboration, 333 degree of detail, 333 face to face, 333 first hand information, 333_______________ Index viii statements against intere s t, 333 track record, 333

confront witnes ses Bill of Rights, 76 consensual encounter, 316

consent
defenses intentional torts, 453 consent search, 391 authority, 394 computers, 458 computers, 458 authority, 458 scope, 458, 459 voluntary, 458 implied consent computers, 460 requirements, 392

authori ty, 394 voluntary, 392 scope, 395 third party, 396 computers, 459

husband

- wife, 396
parent

- child, 396 roommate, 397 voluntary, 392 computers, 458 conspiracy, 33 18 U.S.C. § 241 elements, 430, 431 18 U.S.C. § 371, 37

co

- conspirator’s statement, 43

doctrine of merger, 43 elements, 38 complete, 38 knowledge and intent, 39 overt act, 42 the agreement, 40 two or more persons, 39 unlawful objective, 41 late joiner, 45 penalty, 38 Pinkerton Theory, 43

statute of limitations 18 U.S.C. § 3282, 46
venue, 47

withdrawa l, 45 conspiracy against rights 18 U.S.C. § 241 elements, 430 Constitution, 55 amendments, 65 Bill of Rights, 65 bail, 77 confront witnesses, 76 double jeopardy, 73 due process of law, 75 freedom of assembly, 69 freedom of religion, 66 freedom of speech, 67, 79 fundamental rights, 78 grand jury indictment, 75 informed of charges, 76 right to counsel, 76 searches and seizures, 70

self

- incrimination, 74 speedy trial, 75
venue, 77 witness compulsory process,

76 eighth, 77 fifth, 72 first, 65, 79 fourteenth, 7 8 fourth, 70 sixth, 75 checks and balances, 63 executive branch, 62 judicial branch, 63 legislative branch, 60 living document, 57 constitutional tort, 434 scope of employment, 453

Constitutional torts scope of employment FTCA, 453 constructive possession controlled substances, 169

containers REP, 310

contradiction impeachment, 105 contributory negligence negligent torts defenses, 453_______________ Index ix controlled substances 21 U.S.C. § 812, 167 21 U.S.C. § 841, 169 21 U.S.C. § 844, 168 actual possession, 169 constructive po ssession, 169 distribution, 169 intent to distribute, 169 manufacture, 169 penalty, 170 possession, 168 unlawful, 168 schedules, 167

conversion civil liability, 448 intentional tort, 448 conversion of government property,

185

convicted felon

firearms prohi bited person, 157

counsel right to sixth amendment, 76

counterfeit securities intent to defraud, 215 interstate or foreign commerce, 214 knowledge, 215

court documents arrest warrant, 257 criminal complaint, 259 indictment, 259 information, 260 citation, 2 58, 288 criminal complaint, 256, 288 initial appearance, 259 indictment, 257, 288 information, 257, 288, 289 summons, 258 initial appearance, 260 ticket, 258, 288 credibility confidential informants, 332 consistency between informants,

333 corroboration, 3 33 degree of detail, 333 face to face, 333 first hand information, 333 statements against interest, 333 track record, 318, 333 witness, 103 bias, 104 contradiction, 105 impeachment, 103 motive to lie, 105 physical or mental incapacity,

105 prior convictio n, 106 prior inconsistent statement, 105 specific instances of untruthfulness, 105

crime definition, 429 criminal act, 143, 144 criminal activity afoot, 317 criminal attempt, 50 criminal complaint, 256, 288 arrest warrant, 259 initial appearance, 259

crimi nal law, 143 act, 143, 144 common law, 144, 147 elements, 143, 144 felony, 143 defined, 145 intent, 144 jurisdiction, 13, 143, 145, 146 knowlingly, 145 misdemeanor, 143, 145 defined, 145 motive, 144 penalty, 145, 150 statutory law, 143, 144, 145

criminal t rial procedural stages, 96 case in chief, 97 closing argument, 98 defense case, 97 jury instructions, 98 opening statements, 97 rebuttal case, 97 sentencing, 98 suppression motion, 96 voir dire, 97_______________ Index x cross designation arrest authority, 14 arrest authority, 12 subject matter jurisdiction, 14 subject matter jurisdiction, 12

cross

- examination, 135, 136 badgering, 137 compound questions, 138 conflicting testimony, 139 friendly defense counsel, 139 mistakes, 138, 140 possibilities, 139 pretrial discussions, 137 previous lies, 140 prior inconsistent statement, 140 rapid fire questions, 138 repetitive questions, 137 testifying for the witness, 136 twisting prior testimony, 139 volunteering information, 137 yes or no answer, 136 current federal employee, 148, 150

cu rtilage REP, 311 custody

Miranda warnings, 484 incarcerated person, 486 intent to arrest, 486 police station, 486 search warrant, 486 Terry stop, 485 traffic stop, 485

tantamount to formal arrest

Miranda warnings, 485



### D

damage to land civil liability, 448 intentional tort, 448 damage to personal property civil liability, 448 intentional tort, 448 deadly force, 512 agency policy, 522 defined, 512 examples, 517 unarmed suspect, 517, 519, 520 reasonableness, 513 fear for life, 515 lesser forms, 516

offense l evel, 516 retreat, 516 Scott v. Harris, 513, 515 Tennessee v. Garner, 514, 515 verbal warning, 516 warning shots, 516 deadly weapon, 150 deception knock and announce, 353 Miranda waiver, 488 voluntary statements, 480

defendant’s statement hearsay, 121

defe nse case procedural stages criminal trial, 97 defense discovery, 289 Brady, 289, 291 continuing duty, 295 Giglio, 289, 292, 293 Jencks Act, 289, 293 reciprocal, 291 Rule 16, 289, 290 Rule 26.2, 289, 294 sanctions, 295

defense of others

defenses

intentional torts, 453

defenses Federal Tort Claims Act, 453 FTCA, 453

intentional torts consent, 453 defense of others, 453 Federal Tort Claims Act, 453 FTCA, 453 necessity, 454

self

- defense, 453 negligent torts assumption of risk, 453 comparative negligence, 453

co ntributory negligence, 453 Federal Tort Claims Act, 453 FTCA, 453 demonstrative evidence, 96_______________ Index xi deportation proceedings right to remain silent, 497

self

- incrimination, 497 deprivation of rights 18 U.S.C. § 242 elements, 432, 433 specific intent, 434

under co lor of law, 432, 433 42 U.S.C. § 1983, 435 under color of law, 436 civil action, 435 criminal action, 432 specific intent, 434 under color of law, 432, 433, 436 destruction of evidence, 389 computers, 462 destructive device, 163 detention hearing pretrial release, 263 bail jumping, 264 digital evidence best evidence rule, 125 foundations, 123, 124, 475 hearsay, 125 diplomatic immunity, 266 diplomatic security command center, 266 incident reports protective liaison division, 268 traffic incidents, 267 verify ing status, 266 diplomatic security command center, 266 direct evidence, 101 direct examination, 135 directly or indirectly, 151, 152, 153 discovery, 289 Brady, 289, 291 continuing duty, 295 Giglio, 289, 292, 293 Jencks Act, 289, 293 reciprocal, 291

Rule 1 6, 289, 290 Rule 26.2, 289, 294 sanctions, 295 dishonorably discharged

firearms prohibited person, 158 distribution controlled substances, 169 district court, 255 felony trials, 255, 256 doctrine of merger conspiracy, 43

documents right to remain silent, 496 third parties, 497

self

- incrimination, 496 third parties, 497 DOD land management officers arrest authority, 12 jurisdiction, 9 subject matter jurisdiction, 12 dog sniffs, 314 domestic relations restraining order

firearms prohibited person, 158

domesti c violence misdemeanor

conviction

firearms prohibited person, 159 double jeopardy, 73 dual sovereignty, 73 mistrial, 73 nolle prosequi, 73 remand, 74 driver’s license checkpoint, 400 drug offenses, 167 drug user

- addict

firearms prohibited person, 158 drugs 21 U.S.C. § 812, 167 21 U.S.C. § 841, 169 21 U.S.C. § 844, 168 21 U.S.C. § 846 conspiracy, 37 actual possession, 169 constructive possession, 169 distribution, 169 intent to distribute, 169 manufacture, 169 penalty, 170 possession unlawful, 168 schedules, 167 dual sovereignty, 73_______________ Index xii due process of law Bill of Rights, 75 identification procedures, 503

line

- ups, 503, 504 photo arrays, 503, 504

show

- ups, 503, 505



### E

eighth amendment bail, 77 Constitution, 77 electronic communications, 220 defined, 221

electronic communications privacy act of 1986, 220 stored access communications act,

240 electronic law and evidence, 217 electronic pagers search incident to arrest, 464 electronic tracking devices 18 U.S.C. § 3117, 232 installation, 232 government property, 233

veh icles, 233 warrants, 235 monitoring, 234 no REP, 234 REP area, 234 warrants, 235

warrants FRE 41, 235 elements, 143, 144 conspiracy, 38 complete, 38 knowledge and intent, 39 overt act, 42 the agreement, 40 two or more persons, 39 unlawful objective, 41

neg ligent tort, 443 breach of duty, 445 causation, 446 damages, 446 duty, 444 embezzlement of government property, 183 emergency scene, 390 crime scene, 391 murder scene, 391

emotional distress civil liability, 447 intentional tort, 447 enabling legislation land management, 3, 14 Endangered Species Act 16 U.S.C. §§ 1531

– 1543, 27 enhanced penalties firearms, 161 brandishing, 161 discharging, 161 possessing, 161 entrapment, 171 affirmative defense, 172 inducement, 172 permitted, 173 prohibited, 173 predispos ition, 172, 173, 174 course of similar conduct, 174 excessive amounts of money,

175 extreme appeals to emotion, 175 previously formed intent, 174 ready response, 175 threats, 175

establishment clause religion first amendment, 66 evidence, 93 admissibility, 96 Federal Rules of Evidence, 96 bagging and tagging, 114

best evidence rule computer evidence, 125 digital evidence, 125 duplicate, 117 original, 117 chain of custody, 114 circumstantial, 101 demonstrative, 96 direct, 101 expert testimony, 102_______________ Index xiii forms, 95 circumstantial, 101 demonstrative, 96 direct, 101 real, 95 testimonial, 95 foundations, 113 best evidence rule, 116 business records or public documents, 116 challenge, 115 computer evidence, 123, 475 digital evidence, 124 laying, 114

self

- authenticati on, 118 lay person testimony, 102 emotional condition, 103 handwriting, 103 voice, 103 real, 95 relevant, 98 other crimes or acts, 99 identity, 100 impeachment, 100 intent, 99 knowledge, 100 modus operandi, 100 motive, 99 opportunity, 100 plan or preparati on, 100 predisposition, 101 testimonial, 95, 481 evidentiary foundations, 113 best evidence rule, 116 computer evidence, 125 digital evidence, 125 duplicate, 117 original, 117 business records or public documents, 116 challenge, 115 computer evidence, 123, 475 digital evidence, 124 laying, 114

self

- authentication, 118 business records, 118 public documents, 118 excessive force

Bivens civil liability, 439 civil liability Bivens, 439

excited utterance hearsay exception, 121 exclusionary rule, 334 exceptions foreign searches, 336 good faith, 336 impeachment, 335 inevitable discovery, 339 miscellaneous, 340 no standing, 335 exclusive jurisdiction, 146 land management, 5 executive branch, 62 exigent circumstance computers, 461 destruction of evidence, 389

compu ters, 462 emergency scene, 390 crime scene, 391 murder scene, 391 hot pursuit, 388 immediate or continuous, 388 PC, 388 public place, 389 serious crime, 388 expert opinion, 102 expert testimony, 102 expungement or pardon, 159 extended border, 409

extraditi on, 297 extraterritorial jurisdiction 18 U.S.C. § 1512, 194, 196 18 U.S.C. § 1513, 196



### F

failure to intervene

Bivens civil liability, 440 civil liability Bivens, 440

false affidavit

Bivens civil liability, 438_______________ Index xiv civil liability Bivens, 438

false arrest

civi l liability, 447 intentional tort, 447 false imprisonment civil liability, 447 intentional tort, 447 false statements, 177 18 U.S.C. § 1001, 177 elements, 177 exculpatory no, 179 federal matter, 177 judicial proceeding, 178 legislative branch, 178

intent t o decieve, 179 material fact, 179 federal circuits, 253 federal communications act of 1934,

219

federal court circuit courts of appeals, 253 en banc, 254 judges, 256 panels, 254 district, 252 district court, 255 felony trials, 255, 256

documents

arrest war rant, 257 criminal complaint, 259 indictment, 259 information, 260 citation, 258, 288 criminal complaint, 256, 288 initial appearance, 259 indictment, 257, 288 information, 257, 288, 289 summons, 258 initial appearance, 260 ticket, 258, 288 magistrate cour t, 255 felony cases, 255 misdemeanor trials, 255, 256 supreme court, 253

federal rules of criminal procedure, 253 justices, 256 writ of certiorari, 253 federal court procedures, 249 arraignment, 274

classification of offenses felony, 254 misdemeanor, 254

p etty offense, 254 defense discovery, 289 detention hearing, 263 extradition, 297 formal charging documents, 287 grand jury, 275 identity hearing, 265 initial appearance, 259 jurisdiction, 295 preliminary hearing, 272 removal, 296 removal hearing, 265

sente ncing, 300 pre sentence investigation(PSI),

300 pre sentence report(PSR), 300

U.S. Probation and Pretrial Services Office, 300 speedy trial act, 297, 299 arrest, 299 statute of limitations, 297 18 U.S.C. § 3282, 297 continuing offenses, 299 defined, 297

to lling formal charging, 297 fugitive, 298 transfer, 296
venue, 295 change, 296 federal districts, 252 federal employee, 148 18 U.S.C. § 1114, 148, 149 assault, 147, 148, 149, 150 current, 150 former, 148, 149 federal facility firearms, 161
Federal Good Sama ritan Act Federal Tort Claims Act, 450 FTCA, 450 federal privileges, 108 Federal Rules of Evidence, 96_______________ Index xv Federal Tort Claims Act, 448 absolute immunity, 448 administrative remedies, 452 Constitutional torts, 453 defenses, 453 federal agency, 448

Federal Goo d Samaritan Act, 450 government employee, 448 intentional torts, 449 defenses, 453
consent, 453 defense of others, 453 necessity, 454

self

- defense, 453 investigative or law enforcement officer, 449 lawsuit, 452 negligent torts, 448 defenses, 453 assumption of risk, 453 comparitive negligence, 453 contributory negligence, 453 scope of employment, 449 certification, 452 government vehicles, 451 sovereign immunity, 448

federal warrant

arrest execution, 346 felony, 143, 254 defined, 145 warrantless arrest, 348 fifth amendment, 503 Constitution, 72 double jeopardy, 73 dual sovereignty, 73 mistrial, 73 nolle prosiqui, 73 remand, 74 due process identification procedures, 503

line

- ups, 503, 504 photo arrays, 503, 504

show

- ups, 503, 505 due process of law, 75 grand j ury indictment, 75 privilege, 108

self

- incrimination, 74 Fifth Amendment, 477, 482 fighting words, 67, 86 contempt of cop, 87

firearms 18 U.S.C. § 922(a)(4), 162 registration, 162 18 U.S.C. § 930, 161 federal facility, 161 definition, 157

destructive devic e, 163 enhanced penalties, 161 brandishing, 161 discharging, 161 possessing, 161 federal facility, 161 machine gun, 163 mandatory penalties 18 U.S.C. § 924(c)(1), 160 crime of violence, 160 drug trafficking crime, 160 prohibited persons, 157 18 U.S.C. § 92 2(g), 157 adjudicated mentally defective,

158 convicted felon, 157 dishonorably discharged, 158 domestic relations restraining order, 158

domestic violence misdemeanor conviction, 159 drug user

- addict, 158 fugitive from justice, 158 illegal or non

- permanen t resident alien, 158 pardon or expungement, 159 renounced citizenship, 158 registration destructive device, 163 machine gun, 163

short

- barrel rifle, 163

short

- barrel shotgun, 162 silencer, 163

short

- barrel rifle, 163

short

- barrel shotgun, 162 silencer, 16 3 tracing, 164 information gained, 165 required information, 164_______________ Index xvi first amendment Constitution, 65, 79 freedom of assembly, 69 freedom of religion, 66 freedom of speech, 67, 79 advocating imminent lawlessness, 67, 89, 90 clear and present danger, 67, 90

c ontent based restrictions, 82 content neutral restrictions, 83 expression, 80 fighting words, 67, 86 fraud, perjury, libel, and slander,

69 government action, 79

non

- public forums, 83 obscenity, 68, 91 permits, 84 public forums, 83, 84 true threats, 69, 87 , 88 unprotected conduct, 84 unprotected speech, 85

fish and wildlife service arrest authority, 11 16 U.S.C. § 668dd(g), 11 subject matter jurisdiction, 11
fish and wildlife/national marine

fisheries service jurisdiction, 9 16 U.S.C. §§ 472b, 668dd (g),

33 75b, 9 flashlights search, 315 foreign nationals appointment of guardian mandatory notification, 270
arrest, 269 consular access, 270 mandatory notification, 269 requested notification, 269

death mandatory notification, 270 ship or aircraft accident

mandat ory notification, 271

vienna convention on consular relations, 268 appointment of guardian, 270
arrest, 269, 270 death, 270 ship or aircraft accident, 271 foreign searches exclusionary rule exception, 336

forest service arrest authority, 11 16 U.S.C. § 559 , 11 jurisdiction, 8 16 U.S.C. §§ 559, 559c, 559d, 8 subject matter jurisdiction, 11 formal charging documents, 287 criminal complaint, 288 indictment, 288 information, 288, 289 former federal employee, 148, 149

foundations

best evidence rule computer evid ence, 125 digital evidence, 125 duplicate, 117 original, 117 computer evidence, 123, 475 digital evidence, 124 evidence, 113 best evidence rule, 116 business records or public documents, 116

self

- authentication, 118 business records, 118 public documents, 118

fourteenth amendment Constitution, 78 fundamental rights, 78

fourth amendment Constitution, 70 searches and seizures, 70 Fourth Amendment, 301, 305 administrative search, 400 border, 404 driver’s license checkpoint, 400 general crime control, 401

arres t, 321, 325, 344 pointing weapon, 511 arrest warrant, 342 Carroll Doctrine, 383 consent search, 391 computers, 458 exclusionary rule, 334_______________ Index xvii exigent circumstance, 353, 387 computers, 461 government action, 305, 456 inventory search, 397 cell phones, 466

comp uters, 465 knock and announce, 349 mobile conveyance exception, 383 plain view doctrine, 340 computers, 462 private conduct, 310 probable cause, 331 protective sweep, 355

reasonable use of force, 508 reasonable expectation of privacy,

306 computers, 456

re asonable suspicion, 317 search, 306 search incident to arrest, 357 cell phones, 464 computers, 463 electronic pagers, 464 PDAs, 465 search warrant, 362 computers, 466 seizure, 315 Terry frisk, 321 Terry stop, 317

use of force factors, 509

use of race DOJ g uidance, 326

fraud lulling letters, 205 scheme to defraud, 204 fraud statutes, 201 fraud, perjury, libel, and slander freedom of speech, 69

FRE 41 electronic tracking devices warrants, 235 free exercise of religion clause, 66 freedom of assembly, 69

freedo m of religion, 66 establishment clause, 66 free exercise clause, 66 freedom of speech, 67, 79 expression, 80 government action, 79 government regulation advocating imminent lawlessness, 67, 89, 90 clear and present danger, 67, 90 content based, 82

content neutral, 83 fighting words, 67, 86 fraud, perjury, libel, and slander,

69

non

- public forums, 83 obscenity, 68, 91 permits, 84 public forums, 83, 84 true threats, 69, 87, 88 unprotected conduct, 84 unprotected speech, 85 FTCA, 448 absolute immunity, 448

adm inistrative remedies, 452 Constitutional torts, 453 defenses, 453 federal agency, 448 Federal Good Samaritan Act, 450 government employee, 448 intentional torts, 449 defenses, 453
consent, 453 defense of others, 453 necessity, 454

self

- defense, 453

investi gative or law enforcement officer, 449 lawsuit, 452 negligent torts, 448 defenses, 453 assumption of risk, 453 comparative negligence, 453 contributory negligence, 453 scope of employment, 449 certification, 452 government vehicles, 451 sovereign immunity, 448 fugitive from justice

firearms prohibited person, 158 functional equivalent of the border,

407_______________ Index xviii fundamental rights Bill of Rights, 78 fourteenth amendment, 78



### G

garbage REP, 313
Gates totality of the circumstances probable cause, 334 general crime che ckpoint, 401 gifts, 151, 154 Giglio discovery, 289, 292, 293 good faith exclusionary rule exception, 336
Good Samaritan Act Federal Tort Claims Act, 450 FTCA, 450 government checks and balances, 63 executive branch, 62 judicial branch, 63 legislative branc h, 60 government action, 305, 456 government employees right to remain silent, 497

self

- incrimination, 497 government property abandoned, 183 conversion, 185 embezzlement, 183 receipt of stolen, 186 steals, 183 theft, 181, 182 government vehicles scope of employment Federal Tort Claims Act, 451 government workplace defined, 412 REP, 413 job position, 418 openness and accessibility, 417 practices and procedures, 416 prior notice, 415 waiver, 419 search, 411 criminal evidence, 423 dual purpose, 424 employee misconduct, 421 justified at inception, 422

non

- investigatory purpose, 421 permissible scope, 423 plain view, 423 reasonableness, 420, 422 scope, 423

work

- related purpose, 421 government workplaces REP, 312 government

- informant privilege, 108,

112
Graham v . Conner reasonable force, 508 grand jurors qualifications, 276 selection, 275 grand jury, 275

access another grand jury, 285 AUSAs, 285 civil matters, 285 Jencks Act, 285 law enforcement, 285 mixed information, 287 Patriot Act, 285 Rule 6(e) list, 286

acc usatory, 275 grand jury matters, 284

indictment no bill, 278 sealed, 278 true bill, 275, 278 investigatory, 275

members qualifications, 276 selection, 275 post indictment powers, 278 process, 276 secret, 276 target, 277 purpose, 275 accusatory, 275

indictm ent, 275 investigatory, 275_______________ Index xix secrecy, 276, 283 access, 285 AUSA, 284 court order, 284 exceptions, 284 private citizen, 284 rule 6(e), 283 subpoena, 279 ad testificandum, 280 duces tecum, 280 items and things, 280 limitations, 281 obtaining, 283 quashing, 2 80 relevance, 280 requirements, 280 service, 280 witness, 280 target, 277 grand jury indictment Bill of Rights, 75 infamous crimes, 75



### H

handcuffing

use of force reasonableness, 511 hearsay, 119 business records, 119

co

- conspirator’s statement, 121 compute r evidence, 125 defendant’s statement, 121 digital evidence, 125 exceptions, 121 excited utterance, 121 medical diagnosis, 122 public documents, 119 statement, 120 trial, 120 truth of matter asserted, 120

homes REP, 309 hot pursuit, 388

immediate or contin uous, 388 PC, 388 public place, 389 serious crime, 388

hotel room REP, 310 husband

- wife privilege, 108, 110



### I

identification procedures due process, 503

line

- ups, 503, 504 photo arrays, 503, 504

show

- ups, 503, 505 identity hearing, 265 illegal or non

- perma nt resident alien

firearms prohibited person, 158 immunity, 441, 495 absolute, 441 Federal Tort Claims Act, 448 FTCA, 448 qualified, 442, 532, 533, 534 clearly established right, 442, 443, 534 examples, 535 sovereign, 441 Federal Tort Claims Act, 448 FTCA, 448 transactional, 496 use, 495 impeachment, 103, 135 bias, 104 contradiction, 105 exclusionary rule exception, 335 motive to lie, 105

other crimes or acts relevant evidence, 100 physical or mental incapacity, 105 prior conviction, 106 prior inconsistent statement, 105 specific instances of untruthfulness,

105 implied consent computers, 460 incriminating statements, 481 indentity

other crimes or acts relevant evidence, 100 independent component doctrine, 467_______________ Index xx indictment, 257, 288 arrest warrant, 259

gra nd jury true bill, 275 no bill, 278 sealed, 278

sixth amendment counsel, 499 true bill, 275, 278

inducement entrapment, 172 permitted, 173 prohibited, 173 inevitable discovery exclusionary rule exception, 339

infamous crimes grand jury indictment, 75

infor mant basis of knowledge, 319 Miranda warnings, 483 reliability, 318 consistency between informants,

333 corroboration, 333 degree of detail, 333 face to face, 333 first hand information, 333 statements against interest, 333 track record, 318, 333

sixth ame ndment counsel, 501 information, 257, 288, 289 arrest warrant, 260

sixth amendment counsel, 499 information checkpoint, 401 informed of charges Bill of Rights, 76 initial appearance, 76, 259 criminal complaint, 259 defendant’s rights, 261 federal judge, 25 9 identity hearing, 265 juvenile, 272

location adjacent district, 265 district of the arrest, 264 district of the crime, 264 magistrate judge, 259 pretrial detention, 262 options, 263 pretrial services report, 262 pretrial release, 262 bail, 263

conditiona l, 263 detention hearing, 263 options, 263 own recognizance, 263 pretrial services report, 262 pretrial services report, 262 purpose, 261 removal hearing, 265

sixth amendment counsel, 499 state or local judge, 260 timing, 261 warrantless arrest, 259

crimin al complaint, 259 without unnecessary delay, 261 inspection authority land management, 29 national park service 36 C.F.R. 3.5, 29 intent, 144

other crimes or acts relevant evidence, 99

intent to defraud counterfeit securities, 215 interstate transport of s tolen property, 213 ITSP, 213, 215 National Stolen Property Act, 213,

215

intent to distribute controlled substances, 169 intent to influence, 151, 152, 153, 154 intentional tort, 447, 449 conversion, 448 defenses, 453 to property, 448 land, 448 personal, 448 to the person, 447 assault, 447 battery, 447 emotional distress, 447 false arrest, 447 false imprisonment, 447_______________ Index xxi internal government investigations right to remain silent, 497

self

- incrimination, 497 interrogations, 479 McDade amendment, 502

Miranda warn ings, 483

non

- custodial, 494 immunity, 495 testimonial, 495 transactional, 496 use, 495 subpoenas to testify, 494 perjury, 496 represented parties, 502

sixth amendment counsel, 498 offense specific, 500 interstate or foriegn commerce, 210,
212, 214

counter feit securities, 214 interstate transport of stolen property, 210 ITSP, 210, 212, 214 travel fraud, 212 interstate transport of stolen property,

209 intent to defraud, 213 interstate or foreign commerce, 210 knowledge, 211 securities, 213 transport, transf er, transmit, 210 value, 211 venue, 215 inventory search, 397 cell phones, 466 computers, 465 standardized policy, 466 justification, 398 location, 399 requirements, 398 lawful impoundment, 398 standardized policy, 398 scope, 399 investigative detention, 3 16, 317 duration, 320 reasonable suspicion, 317 anonymous tip, 318 collective knowledge, 318 informant, 318 justifying factors, 319 totality of the circumstances, 318 use of force, 320 vehicles, 323 duration, 325 permissible actions, 324 pretextual stop, 3 25 ITSP, 209 counterfeit securities, 213 intent to defraud, 213, 215 interstate transport of stolen property, 209 knowledge, 211, 215 securities, 213 travel fraud, 212 venue, 215



### J

Jencks Act discovery, 289, 293 grand jury matters, 285 grand jury testimony , 277 judicial branch, 63 judicial officers and jurors

obstruction 18 U.S.C. § 1503, 190 jurisdiction, 13, 143, 145, 146 bureau of land management, 8 bureau of reclamation, 8 concurrent, 5, 146 defined, 295 DOD land management officers, 9 exclusive, 5, 146 land management agency specific, 8 special maritime and territorial, 4, 6 subject matter, 10 territorial, 4
concurrent, 5 exclusive, 5 proprietary, 5 national park service, 8 proprietary, 5, 146 statutes applicable to designated lands, 6 statutes of gener al application, 6 tennessee valley authority, 9_______________ Index xxii US fish and wildlife/national marine fisheries service, 9 US park police, 8 USDA forest service, 8 jurors and judicial officers

obstruction 18 U.S.C. § 1503, 190 jury instructions procedural stages

criminal trial, 98 justice for all act 18 U.S.C. § 3771, 199 juvenile arrest, 271 initial appearance, 272 Miranda, 272



### K

Katz REP, 307, 457 knock and announce, 349 authority and purpose, 351 breaking, 350 computers, 473 exclusionary rule, 354 exigent circumstances, 353 danger to officers, 353 deception, 353 destruction of evidence, 353 hot pursuit, 353 useless gesture, 353 knock, 351 no knock warrants, 354 purposes, 350 refusal, 351 evidence destruction, 352 flight, 352 gunfire, 352 silence, 352 verbal refusal, 352 knowingly, 145

possess drugs, 145 knowledge counterfeit securities, 215 interstate transport of stolen property, 211 ITSP, 211, 215 National Stolen Property Act, 211,

215

other crimes or acts relevant evidence, 100



### L

Lacey Act

16 U.S.C. §§ 3371

- 3378, 26

l and management, 1 authority and jurisdiction, 2 Code of Federal Regulations, 3,

14 enabling legislation, 3, 14 inspection authority, 29 jurisdiction agency specific, 8 special maritime and territorial, 4, 6 subject matter, 10 territorial, 4
concurrent, 5

e xclusive, 5 proprietary, 5 late joiner conspiracy, 45 lay person opinion, 102 emotional condition, 103 handwriting, 103 voice, 103 lay person testimony, 102 emotional condition, 103 handwriting, 103 voice, 103 laying a foundation evidence, 114 legislative branch, 60

line

- ups fifth amendment due process, 503, 504

sixth amendment counsel, 499 living document Constitution, 57 lulling letters scheme to defraud, 205



### M

machine gun, 163_______________ Index xxiii magistrate court, 255 felony cases, 255 misdemeanor trials, 255, 256

mail REP, 314 mail fraud, 203 18 U.S.C. § 1341, 203
venue, 215 venue, 215 mandatory penalties 18 U.S.C. § 924(c)(1), 160

firearms crime of violence, 160 drug trafficking crime, 160

manufacture controlled substances, 169

Marine Mammal ProtectionAct 16 U.S.C. §1377, 27 McDade amendment, 502 no contact rule, 502 represented parties, 502 medical diagnosis hearsay exception, 122 members of congress
arrest, 271 breach of peace, 271 felony, 271 mentally defective

firearms prohibited person, 158

Miranda juvenile, 272 rights , 491 counsel, 492 ambiguous request, 493

contact re

- initiation, 493 offense general, 492 silence, 492 waiver, 487 affirmative, 488 form, 488 intelligent and knowing, 487 voluntary, 487 deception, 488 warnings, 482 exceptions, 490 booking questions, 491

pu blic safety, 490 violations, 489 intentional, 490 unintentional, 489 when required, 483 custody, 484 incarcerated person, 486 informant, 483 intent to arrest, 486 known law enforcement, 483 police station, 486 questioning, 483 search warrant, 486

stale wa rnings, 489 Terry stop, 485 traffic stop, 485 undercover agent, 483

Miranda rights, 491 counsel, 492 ambiguous request, 493

contact re

- initiation, 493 offense general, 492 silence, 492 Miranda v. Arizona, 482

Miranda warnings, 482 exceptions, 490 booking q uestions, 491 public safety, 490 stale, 489 violations, 489 intentional, 490 unintentional, 489 when required, 483 custody, 484 search warrant, 486 Terry stop, 485 traffic stop, 485 incarcerated person, 486 informant, 483 intent to arrest, 486

known law en forcement, 483 police station, 486 questioning, 483 stale warnings, 489 undercover agent, 483 misdemeanor, 143, 145, 254 defined, 145 warrantless arrest, 348 misprision of a felony 18 U.S.C. § 4, 53_______________ Index xxiv mistrial double jeopardy, 73 mobile conveyance exception, 383 prerequisites, 384 rationale, 384 scope, 386 timing, 385 modus operandi

other crimes or acts relevant evidence, 100 motive, 144

other crimes or acts relevant evidence, 99 motive to lie, 105 murder, 144 18 U.S.C. § 1111, 144



### N

national marine fisheries arrest authority, 11 subject matter jurisdiction, 11
national marine fisheries/fish and

wildlife service jurisdiction, 9 16 U.S.C. §§ 472b, 668dd (g), 3375b, 9 national park service arrest authority, 10 16 U.S.C. § 1a

- 6(b)(3), 10 inspection authority
36 C .F.R. 3.5, 29 jurisdiction, 8 16 U.S.C. § 1a

- 6, 8 subject matter jurisdiction, 10 National Stolen Property Act, 209 18 U.S.C. § 2314, 209
venue, 215 counterfeit securities, 213 intent to defraud, 213, 215 interstate transport of stolen property, 209

knowle dge, 211, 215 securities, 213 travel fraud, 212
venue, 215 necessity

defenses intentional torts, 454 negligent tort, 443, 448 defenses, 453 elements, 443 breach of duty, 445 causation, 446 damages, 446 duty, 444 no standing exclusionary rule exception, 33 5 nolle prosiqui double jeopardy, 73

non

- custodial interrogations, 494 immunity, 495 testimonial, 495 transactional, 496 use, 495 perjury, 496 subpoenas to testify, 494

non

- deadly force, 508 chemical sprays, 522, 526 examples, 528, 529, 530, 531,

532

exces sive, 526, 527 reasonable, 527, 528 striking instruments, 522 examples, 523 gratuitous blows, 522

non

- public forums freedom of speech, 83



### O

obscenity freedom of speech, 68, 91 obstruction of justice, 189 18 U.S.C. § 1503 judicial officers and jurors, 190

1 8 U.S.C. § 1510 criminal investigations, 191 18 U.S.C. § 1512 witness intimidation, 192 18 U.S.C. § 1513 witness retaliation, 195 offensive touching, 147, 150 offer assault, 147, 149 officer liability, 427 officer safety use of force, 512 official act, 151 , 153, 154_______________ Index xxv official duties, 148, 149, 150 engaged in, 148, 150 on account of, 148, 149, 150

omnibus crime control and safe

streets act of 1968 18 U.S.C. § 2510 et seq, 219 open fields REP, 311 opening statements procedural stages criminal trial, 97 opinion expert, 102 lay person, 102 emotional condition, 103 handwriting, 103 voice, 103 opportunity

other crimes or acts relevant evidence, 100 oral communications, 220 defined, 221

overt act conspiracy elements, 42 own recognizance pretrial release, 263



### P

pardo n or expungement, 159 park police arrest authority, 12 16 U.S.C. § 1a

- 6, 12 jurisdiction, 8 subject matter jurisdiction, 12 parties to crimes, 51 accessory after the fact, 52 aiding and abetting, 51 causing a crime, 52 misprision of a felony, 53 principal, 51

Patriot Act grand jury matters, 285

PDAs search incident to arrest, 465 peace officer status, 13, 345 pen register 18 U.S.C. §§ 3121 et seq, 236 court order, 238 defined, 236 regulation, 237 penalty 21 U.S.C. § 841, 170 21 U.S.C. § 844, 170 drugs, 1 70 penalty, 145 assault, 150 deadly weapon, 150 conspiracy, 38 perjury, 496 permits freedom of speech, 84 permitted inducements, 173 petty offense, 254 photo arrays

fifth amendment due process, 503, 504 physical or mental incapacity, 105 Pinkerton Theory

c onspiracy, 43 plain touch doctrine, 323 plain view doctrine, 340 computers, 462 government workplace search, 423 incriminating nature, 341 right to be, 340 computers, 462, 463 right to seize, 341 plan or preparation

other crimes or acts relevant evidence, 100 pointing weapon

use of force reasonableness, 511 possession

controlled substances unlawful, 168 predisposition course of similar conduct, 174 entrapment, 173 excessive amounts of money, 175 extreme appeals to emotion, 175

other crimes or acts

relevant evidence, 101_______________ Index xxvi previously formed intent, 174 ready response, 175 threats, 175 preliminary hearing, 272 petty offenses, 272 procedure, 273 results, 273 timing, 273 waiver, 273 present apparent ability, 147, 149 pretextual stop vehicles, 325 pretrial release bail, 263 bail jumping, 264 conditional, 263 detention hearing, 263 own recognizance, 263 pretrial services report initial appearance, 262 principal parties to crimes, 51 prior conviction impeachment, 106 prior inconsistent statement, 105 private conduct computer search, 456 search, 306 private search, 306, 310 computers, 456 privileges, 106 federal, 108 attorney

- client, 108, 109 clergy

- communicant, 108, 111 fifth amendment, 108 government

- informant, 108, 112

husband

- wife, 108, 110 psychotherapist

- patient, 108,

111 holder, 107

non

- federal, 108 waiver, 107 probable cause, 331 arguable, 438 arrest, 325 confidential informants, 332 Aguilar, 332, 334 basis of knowledge, 334 credibility, 332 defined, 331 establishing, 332 totality of the circumstances, 331,

334 Gates, 334 procedural stages criminal trial, 96 case in chief, 97 closing argument, 98 defense case, 97 jury instructions, 98 opening statements, 97 rebuttal case, 97 sentencing, 98 suppression motion, 96 voir dire, 97 prohibited inducements, 173 prohibite d persons 18 U.S.C. § 922(g), 157

firearms adjudicated mentally defective,

158 convicted felon, 157 dishonorably discharged, 158 domestic relations restraining order, 158

domestic violence misdemeanor conviction, 159 drug user

- addict, 158 fugitive from jus tice, 158 illegal or non

- permanent resident alien, 158 pardon or expungement, 159 renounced citizenship, 158 proprietary jurisdiction, 146 land management, 5 statutes applicable to designated lands, 6 statutes of general application, 6 protective sweep, 35 5 automatic, 356 extended, 357 scope, 355 areas, 355 arrest outside home, 357 timing, 356 psychotherapist

- patient privilege, 108,

111 public documents_______________ Index xxvii foundations, 116 hearsay, 119

self

- authentication, 118 public forums freedom of speech, 83, 84 public off icial, 151, 153, 154 public safety exception Miranda warnings, 490



### Q

qualified immunity, 442, 532, 533, 534 clearly established right, 442, 443,

534 examples, 535



### R

racial profiling constitutional standard, 326 DOJ guidance, 326 border security, 329, 330

c riminal organization, 329 generalized stereotypes, 327 national security, 329, 330 routine actions, 327 specific investigations, 327 specific suspect description, 328 real evidence, 95 reasonable expectation of privacy,

306 computers, 456

3 rd party possess ion, 458 stolen, 457 reasonable force, 508 “officer safety”, 512 factors, 509 handcuffing, 511 pointing weapon, 511 reasonable suspicion, 317 anonymous tip, 318 collective knowledge, 318 criminal activity afoot, 317 informant, 318 justifying factors, 319

T erry frisk, 321 justifying factors, 322 plain touch doctrine, 323 vehicles, 324 totality of the circumstances, 318 rebuttal case procedural stages criminal trial, 97 receipt of stolen government property,

186 knowledge, 187 reciprocal discovery, 291

re

- dir ect examination, 135 refreshing recollection, 122 registration firearms, 162 destructive device, 163 machine gun, 163

short

- barrel rifle, 163

short

- barrel shotgun, 162 silencer, 163 relevant evidence, 98 other crimes or acts, 99 identity, 100 impeachment, 100 intent, 99 knowledge, 100 modus operandi, 100 motive, 99 opportunity, 100 plan or preparation, 100 predisposition, 101 reliability anonymous tip, 318 confidential informants, 332 consistency between informants,

333 corroboration, 333 degree of detail, 333 face to face, 333 first hand information, 333 statements against interest, 333 track record, 333 informant, 318 consistency between informants,

333 corroboration, 333 degree of detail, 333 face to face, 333 first hand information, 333 statements agains t interest, 333 track record, 318, 333

remand double jeopardy, 74_______________ Index xxviii removal hearing, 265 renounced citizenship

firearms prohibited person, 158

REP abandoned property, 313 apartment, 310 body, 308 computers, 456

3 rd party possession, 458 stolen, 457 condo, 31 0 containers, 310 curtilage, 311 garbage, 313 government workplaces, 312 homes, 309 hotel room, 310 Katz, 307, 457 mail, 314 open fields, 311 test, 307 vehicles, 308 owner, 308 passenger, 309 VIN, 308 right to counsel Bill of Rights, 76 right to remain sil ent, 477, 494 collective entities, 496 deportation proceedings, 497 documents, 496 third parties, 497 government employees, 497 internal government investigations,

497 perjury, 496

Rule 16 discovery, 289, 290

Rule 26.2 discovery, 289, 294 Rule 6(e) list

gr and jury matters, 286



### S

schedules drugs, 167 scheme to defraud, 151, 204 lulling letters, 205 scope of employment

certification Federal Tort Claims Act, 452

Constitutional torts Federal Tort Claims Act, 453 Federal Tort Claims Act, 449 government vehicles, 451 FTCA, 449 government vehicles, 451 scope of search
computers consent, 458, 459
Scott v. Harris deadly force, 513, 515

sealed indictment, 278

search administrative, 400 airport, 403 security checkpoint, 403, 404 border, 404 actual, 407 extended, 409

fu nctional equivalent, 407

non

- routine, 406 routine, 405 business inspection, 401 general crime checkpoint, 401 information checkpoint, 401 license checkpoint, 400 sobriety checkpoint, 400 aircraft overflights, 315 airport, 403 security checkpoint, 403, 404 border, 404 actual, 407 extended, 409 functional equivalent, 407

non

- routine, 406 routine, 405 business inspection, 401 canine sniffs, 314 Carroll doctrine, 383 prerequisites, 384 rationale, 384 scope, 386 timing, 385_______________ Index xxix computers

consent voluntary, 458

con sent, 391 computers, 458 authority, 458 voluntary, 458 implied computers, 460 requirements, 392 authority, 394 voluntary, 392 scope, 395 computers, 458, 459 third party, 396 computers, 459

husband

- wife, 396
parent

- child, 396 roommate, 397 voluntary, 392

de fined, 306 dog sniffs, 314 exigent circumstance, 387 computers, 461 destruction of evidence, 389 computers, 462 emergency scene, 390 crime scene, 391 murder scene, 391 hot pursuit, 388 immediate or continuous, 388 PC, 388 public place, 389 serious crime, 3 88 general crime checkpoint, 401 government workplace, 411 criminal evidence, 423 defined, 412 dual purpose, 424 employee misconduct, 421 justified at inception, 422

non

- investigatory purpose, 421 permissible scope, 423 plain view, 423 reasonableness, 420, 422 REP, 413 job position, 418 openness and accessibility,

417 practices and procedures, 416 prior notice, 415 waiver, 419 scope, 423

work

- related purpose, 421 information checkpoint, 401 inventory, 397 computers, 465 standardized policy, 466 justificati on, 398 location, 399 requirements, 398 lawful impoundment, 398 standardized policy, 398 scope, 399 license checkpoint, 400 mobile conveyance exception, 383 prerequisites, 384 rationale, 384 scope, 386 timing, 385 private conduct, 306 computers, 456

reason able expectation of privacy,

306 computers, 456 REP, 306 abandoned property, 313 apartment, 310 body, 308 computers, 456 condo, 310 containers, 310 curtilage, 311 garbage, 313 government workplaces, 312 homes, 309 hotel room, 310 Katz, 307, 457 mail, 314

o pen fields, 311
test, 307, 457 vehicles, 308 owner, 308 passenger, 309 VIN, 308 sensory enhancements, 314 sobriety checkpoint, 400_______________ Index xxx Terry frisk, 321 justifying factors, 322 plain touch doctrine, 323 vehicles, 324

vehicles Carroll doctrine, 383 prerequisites , 384 rationale, 384 scope, 386 timing, 385 mobile conveyance exception,

383 prerequisites, 384 rationale, 384 scope, 386 timing, 385 warrant, 362 affidavit, 365 false statements, 371
nexus, 366 particularity, 368 items to be seized, 369 person, 369 place, 368 vehicle, 369 staleness, 367 anticipatory, 367 computers, 466 execution, 472 independent component doctrine, 467 multiple warrants, 471

off

- site search, 469 scope, 467, 468 systems, 466 time limitations, 474 execution, 374 answering the phone, 377

deta ining persons, 378 frisking persons, 380 inventory, 382, 383 notice, 377 property damage, 382 return, 383 searching persons, 380 seizing weapons, 378 use of force, 377 when, 376 who, 375 neutral and detached magistrate,

365 no knock warrants, 354

outside t he district, 364 scope, 380 containers, 381 place, 381 vehicles, 381 stored email, 364, 471 telephonic, 371 exigent circumstances, 372 requirements, 372, 374 who can issue, 372 terrorism investigations, 364 tracking devices, 365 who may issue, 363 who may request, 362 within the district, 364 computers, 471 search incident to arrest, 357 cell phones, 464 computers, 463 electronic pagers, 464 PDAs, 465 rational, 358 requirements, 358 scope, 359 lunging distance, 359 the person, 359 vehicles, 360 recent occup ant, 361 search warrant, 362 affidavit, 365 false statements, 371
nexus, 366 particularity, 368 items to be seized, 369 person, 369 place, 368 vehicle, 369 staleness, 367 anticipatory, 367 computers, 466 execution, 472 who, 472 independent component

doctri ne, 467 multiple warrants, 471

off

- site search, 469_______________ Index xxxi scope, 467, 468 systems, 466 time limitations, 474 execution, 374 answering the phone, 377 detaining persons, 378 frisking persons, 380 inventory, 382, 383 Miranda warnings, 486 notice, 377 property damag e, 382 return, 383 searching persons, 380 seizing weapons, 378 use of force, 377 when, 376 who, 375 Miranda warnings, 486 neutral and detached magistrate,

365 no knock warrants, 354 outside the district, 364 scope, 380 containers, 381 place, 381 vehicles, 381 stored email, 364, 471 telephonic, 371 exigent circumstances, 372 requirements, 372, 374 who can issue, 372 terrorism investigations, 364 tracking devices, 365 who may issue, 363 who may request, 362 within the district, 364 computers, 471 searchlights search, 315

securities interstate transport of stolen property, 213 ITSP, 213 National Stolen Property Act, 213

seizure arrest, 316, 325 authority, 345 citizen’s arrest authority, 345

de facto , 321 no knock warrants, 354 peace officer status, 345 pointing weapon, 511 statutory authority, 345 warrant, 342 criminal complaint, 342 entering a home, 347 execution, 343, 344 federal, 346 form, 343 indictment, 342 information, 342
return, 344 state, 346 suspect’s home, 347 third party’s home, 348 warrantless, 348 felonies, 348 misdemeanors, 348 consensual encounter, 316 defined, 315 incarcerated person Miranda warnings, 486

intent to arrest Miranda warnings, 486 investigative detention, 316, 317 reasonable suspicion, 317, 318 police citizen encounters, 316 police s tation Miranda warnings, 486 Terry stop, 316, 317 Miranda warnings, 485 reasonable suspicion, 317 anonymous tip, 318 collective knowledge, 318 duration, 320 informant, 318 justifying factors, 319 totality of the circumstances,

318 use of force, 320

vehicle s, 323

vehicles duration, 325 permissible actions, 324 pretextual stop, 325 traffic stop Miranda warnings, 485_______________ Index xxxii vehicles, 323 permissible actions, 324 voluntary contact, 316

self

- authentication, 118 business records, 118 public documents, 118

self

- defense

defenses intentional torts, 453

self

- incrimination, 477 Bill of Rights, 74 collective entities, 496 deportation proceedings, 497 documents, 496 third parties, 497 government employees, 497 internal government investigations,

497 perjury, 496 sensory enhanc ements binoculars, 314 flashlights, 315 searchlights, 315 telescopes, 314 thermal imaging, 315 sentencing, 300 pre sentence investigation(PSI),

300 pre sentence report(PSR), 300 procedural stages criminal trial, 98
U.S. Probation and Pretrial

Services Offi ce, 300 serious physical injury defined, 512

short

- barrel rifle, 163

short

- barrel shotgun, 162

show

- ups fifth amendment due process, 503, 505 silencer, 163 simple assault, 150

sixth amendment confront witnesses, 76 Constitution, 75 counsel, 498 attachment, 499 critical stages attachment, 499 interrogations, 498

line

- ups, 499 informant, 501 interrogations offense specific, 500 invocation, 500, 501 undercover agent, 501 waiver, 500 informed of charges, 76 right to counsel, 76 speedy trial, 75
venue, 77

witn ess compulsory process, 76 Sixth Amendment, 477 sobriety checkpoint, 400 sovereign immunity, 441 Federal Tort Claims Act, 448 FTCA, 448 special maritime and territorial jurisdiction 18 U.S.C. § 7, 7 land management, 4, 6 specific instances of untruthfulnes s impeachment, 105 speedy trial Bill of Rights, 75 speedy trial act, 297, 299 arrest, 299 spontaneous statements, 484

state offenses arrest authority, 13 Assimilative Crimes Act, 13, 145 citizen’s arrest authority, 14 peace officer status, 13 subject matte r jurisdiction, 13

state warrant

arrest execution, 346

statements incriminating, 481 interrogations, 479, 483 McDade amendment, 502

non

- custodial, 494 perjury, 496 represented parties, 502_______________ Index xxxiii spontaneous

Miranda warn ings, 484 testimonial, 481 voluntary, 479 deception, 480 totality of circumstances, 479,

480 deception, 480

volunteered

Miranda warnings, 484 statute of limitations, 297 18 U.S.C. § 3282, 46 18U.S.C. § 3282, 297 continuing offenses, 299 defined, 297 tolling formal charging, 297 fugitive, 298

stat utes applicable to designated

lands jurisdiction, 6 statutes of general application jurisdiction, 6 statutory law, 143, 144, 145 stealing government property, 183 stolen computers REP, 457 stored access communications act,

240

stored electronic communicati ons, 240 basic subscriber information, 240 defined, 240 subpoena, 242 notice to subscriber, 242 contents, 240 court order, 244 notice to subscriber, 244 defined, 241 subpoena, 244 notice to subscriber, 245 warrant, 243, 244 notice to subscriber, 243, 244

m ethods of obtaining § 2703(d) court order, 242 court order, 242, 244 multi jurisdictional warrant, 246 notice to subscriber, 242, 243, 244, 245 extensions, 244, 245 preservation order, 245 subpoena, 242, 244 warrant, 242, 243, 244 transactional records, 24 0 court order, 242 notice to subscriber, 243 defined, 241 striking instruments use of force, 522 examples, 523 gratuitous blows, 522 subject matter jurisdiction bureau of land management, 11 bureau of reclamation, 12 cross designation, 12, 14
DOD land mana gement officers, 12 land management, 10 national marine fisheries, 11 national park service, 10 state offenses, 13 citizen’s arrest authority, 14 peace officer status, 13 tennessee valley authority, 11 US fish and wildlife service, 11 US park police, 12

US DA forest service, 11 subpoena administrative, 283 grand jury, 279 duces tecum, 280 limitations, 281 obtaining, 283 quashing, 280 requirements, 280 service, 280 witness, 280 IG, 283 IG Act, 283
summons, 258 initial appearance, 260 suppression motion proced ural stages criminal trial, 96 supreme court, 253 federal rules of criminal procedure,

253 justices, 256 writ of certiorari, 253_______________ Index xxxiv



### T

tantamount to formal arrest custody

Miranda warnings, 485 telephonic search warrant, 371 exigent circumstances, 372 requireme nts, 372, 374 who can issue, 372 telescopes, 314
Tennessee v. Garner deadly force, 514, 515 tennessee valley authority arrest authority, 11 16 U.S.C. § 831c

- 3(b)(2)(A), 11 jurisdiction, 9 16 U.S.C. § 831c (3) (c), 9 subject matter jurisdiction, 11

territor ial jurisdiction
concurrent, 5 exclusive, 5 land management, 4 proprietary, 5 Terry frisk, 321 justifying factors, 322 plain touch doctrine, 323 vehicles, 324 Terry stop, 316, 317 Miranda warnings, 485 reasonable suspicion, 317 anonymous tip, 318

collectiv e knowledge, 318 duration, 320 informant, 318 justifying factors, 319 totality of the circumstances, 318 use of force, 320 vehicles, 323 duration, 325 permissible actions, 324 pretextual stop, 325 vehicles, 323 permissible actions, 324

testimonial evidence , 95, 481 testimonial immunity, 495 testimonial statements, 481 testimony, 127, 152 audible answers, 132 cop talk, 133 cross

- examination, 135, 136 badgering, 137 compound questions, 138 conflicting testimony, 139 friendly defense counsel, 139 mistakes, 13 8, 140 possibilities, 139 pretrial discussions, 137 previous lies, 140 prior inconsistent statement, 140 rapid fire questions, 138 repetitive questions, 137 testifying for the witness, 136 twisting prior testimony, 139 volunteering information, 137

yes or no answer, 136 direct examination, 135 good attitude, 131 hearsay, 119 defendant’s statement, 121 exceptions, 121 excited utterance, 121 medical diagnosis, 122 statement, 120 trial, 120 truth of matter asserted, 120 I don’t know, 134 I don’t recall, 134

im partial, 129 impeachment, 135 just the facts, 133 listen, think, answer, 132 memorized, 134 Miranda rights, 140 mistakes, 131 objection rulings, 133 positive and definitive answers, 134 prepared, 129 prior criminal history, 140 privileges, 106 attorney

- cli ent, 108, 109 clergy

- communicant, 108, 111 federal, 108 fifth amendment, 108 government

- informant, 108, 112 holder, 107

husband

- wife, 108, 110

non

- federal, 108_______________ Index xxxv psychotherapist

- patient, 108,

111 waiver, 107 proper demeanor, 131 properly attired, 130

prosec utorial assistance, 133

re

- direct examination, 135 refreshing recollection, 122 respectful, 129 serious, 131 speak to the jury, 134 speaking to the judge, 133 suppressed evidence, 141 truthful, 129 volunteered information, 132 theft of government property, 181, 182 abandoned, 183 felony, 182 misdemeanor, 182 thermal imaging search, 315 third party consent, 396 computers, 459

husband

- wife, 396
parent

- child, 396 roommate, 397 threat, 147, 149 ticket, 258, 288 title III, 219, 220

court order application DOJ ap proval, 223 application contents 18 U.S.C. § 2518, 224, 225,

226 identity of applicant, 224 identity of suspects, 224 minimization statement, 226 necessity statement, 225 previous applications, 226 statement of facts, 224 time period, 225

electronic commun ications AUSA approval, 223 DOJ approval, 223

enumerated crimes 18 U.S.C. § 2516, 222 electronic communications,

223 oral communications, 223 wire communications, 223 how obtained, 222

oral communication DOJ approval, 223 when required, 220 who can apply

1 8 U.S.C. § 2510(7), 222

who can issue 18 U.S.C. § 2510, 227

wire communication DOJ approval, 223 electronic communications, 220 defined, 221 electronic communications privacy act of 1986, 220, 240 exempt devices public communications, 232 tone only pagers, 231 tracking devices, 231 video only surveillance, 231 exemptions consent, 229 18 U.S.C. § 2511, 229 AUSA advice, 230 device in a fixed location, 231 device on a person, 231 high visibility cases, 230 no REP, 228

wire and electronic communications, 229

wi re and electronic

communications 18 U.S.C. § 2511, 229

federal communications act of
1934, 219 intercepts, 220 defined, 221

device defined, 221

omnibus crime control and safe streets act of 1968, 219 oral communications, 220 defined, 221

wire communication s, 220 defined, 221
tort, 429 civil lawsuit, 429_______________ Index xxxvi civil liability, 429, 443 intentional, 447, 449 defenses, 453 negligent, 443, 448 defenses, 453 constitutional, 434 scope of employment, 453 definition, 429 intentional, 447, 449 assault, 447 battery, 447

c onversion, 448 damage to land, 448 damage to personal property,

448 defenses, 453 emotional distress, 447 false arrest, 447 false imprisonment, 447 to property, 448 to the person, 447 negligent, 443, 448 defenses, 453 elements, 443 state law, 429, 443

tota lity of circumstances voluntary statements, 479, 480 deception, 480 totality of the circumstances probable cause, 334 Gates, 334 tracing firearms, 164 information gained, 165 required information, 164 traffic stop Miranda warnings, 485

transactional immuni ty, 496 transfer, 296 trap and trace device 18 U.S.C. §§ 3121 et seq, 236 court order, 238 defined, 237 regulation, 237

travel fraud interstate or foreign commerce, 212 value, 213

true threats freedom of speech, 69, 87, 88 

### U

under color of law 18 U.S.C. § 242, 432, 433 42 U.S.C. § 1983, 436 undercover agent Miranda warnings, 483 sixth amendment counsel, 501

unlawful arrest

Bivens civil liability, 437 civil liability Bivens, 437 unlawful possession controlled substances, 168

unlawful search

Bivens

civil liab ility, 437 civil liability Bivens, 437 unprotected conduct freedom of speech, 84 unprotected speech advocating imminent lawlessness, 67, 89, 90 clear and present danger, 67, 90 fighting words, 67, 86 fraud, perjury, libel, and slander, 69 freedom of speech , 85 obscenity, 68, 91 true threats, 69, 87, 88
US fish and wildlife service arrest authority, 11 subject matter jurisdiction, 11
US fish and wildlife/national marine

fisheries service jurisdiction, 9 16 U.S.C. §§ 472b, 668dd (g), 3375b, 9 US park police

a rrest authority, 12 jurisdiction, 8 subject matter jurisdiction, 12
USDA forest service arrest authority, 11 jurisdiction, 8 16 U.S.C. §§ 559, 559c, 559d, 8 subject matter jurisdiction, 11 use and fruits immunity, 495_______________ Index xxxvii use of force, 507 agency policy, 522 deadly, 512 defined, 512 reasonableness, 513 fear for life, 515 lesser forms, 516 offense level, 516
retreat, 516 verbal warning, 516 warning shots, 516 Scott v. Harris, 513, 515 Tennessee v. Garner, 514, 515 examples, 517 unarmed suspect, 517, 519, 520

no n

- deadly, 508 chemical sprays, 522, 526 examples, 528, 529, 530, 531,

532 excessive, 526, 527 reasonable, 527, 528 striking instruments, 522 examples, 523 gratuitous blows, 522 reasonableness, 508 “officer safety”, 512 factors, 509 Graham v. Conner, 508

ha ndcuffing, 511 pointing weapon, 511 serious physical injury defined, 512

use of race DOJ guidance border security, 329, 330 criminal organization, 329 generalized stereotypes, 327 national security, 329, 330 routine actions, 327 specific investigations, 32 7 specific suspect description, 328 profiling constitutional standard, 326 DOJ guidance, 326



### V

value 18 U.S.C. § 2311, 211 interstate transport of stolen property, 211 ITSP, 213 travel fraud, 213

vehicles REP, 308 owner, 308 passenger, 309

VIN REP, 308

ve nue, 295 18 U.S.C. § 3237, 215 Bill of Rights, 77 change, 296 conspiracy, 47 defined, 295, 296 ITSP, 215 mail fraud, 215 National Stolen Property Act, 215 sixth amendment, 77 wire fraud, 215 victim and witness protection act, 189,

197 restitution, 198

vide o only surveillance REP area, 238 warrant, 239

vienna convention on consular relations, 268, 269, 270, 271

VIN REP, 308

voir dire procedural stages criminal trial, 97 voluntary Miranda waiver, 487 deception, 488 voluntary contact, 316 voluntary statements, 479 deception, 480 totality of circumstances, 479, 480 deception, 480 volunteered statements, 484



### W

waiver Miranda, 487 affirmative, 488 form, 488_______________ Index xxxviii intelligent and knowing, 487 voluntary, 487 deception, 488 privileges, 107 warning shots, 516

warrant

arrest , 257, 342 criminal complaint, 259, 342 entering a home, 347 execution, 343, 344 form, 343 indictment, 259, 342 information, 260, 342 no knock warrants, 354 return, 344 suspect’s home, 347 third party’s home, 348

execution Miranda warnings, 486 search, 362 affidavit, 365 false statements, 371
nexus, 366 particularity, 368 items to be seized, 369 person, 369 place, 368 vehicle, 369 staleness, 367 anticipatory, 367 computers, 466 execution, 472 independent component doctrine, 467 multiple warrants, 471

off

- si te search, 469 scope, 467, 468 systems, 466 time limitations, 474 execution, 374 answering the phone, 377 detaining persons, 378 frisking persons, 380 inventory, 382, 383 Miranda warnings, 486 notice, 377 property damage, 382 return, 383 searching persons, 380 sieizing weapons, 378 use of force, 377 when, 376 who, 375 neutral and detached magistrate,

365 no knock warrants, 354 outside the district, 364 scope, 380 containers, 381 place, 381 vehicles, 381 stored email, 364, 471 telephonic, 371 exigent circums tances, 372 requirements, 372, 374 who can issue, 372 terrorism investigations, 364 who may issue, 363 who may request, 362 within the district, 364 computers, 471 stored electronic communications, 242, 243, 244 multi jurisdictional, 246 tracking devices, 365 video only surveillance, 239 warrantless arrest, 348 wire communications, 220 defined, 221 wire fraud, 207 18 U.S.C. § 1343, 207
venue, 215 venue, 215

withdrawal conspiracy, 45 without unnecessary delay initial appearance, 261 witness, 151, 152, 153

bi as, 104 bribery 18 U.S.C. § 1510, 191

characteristics good attitude, 131 impartial, 129 mistakes, 131, 138, 140 prepared, 129 proper demeanor, 131 properly attired, 130_______________ Index xxxix respectful, 129 serious, 131 truthful, 129 compulsory process sixth amendment, 76

confr ont sixth amendment, 76 contradiction, 105 credibility, 103 bias, 104 contradiction, 105 impeachment, 103 motive to lie, 105 physical or mental incapacity,

105 prior conviction, 106 prior inconsistent statement, 105 specific instances of untruthfulness, 10 5

cross

- examination, 135, 136 badgering, 137 compound questions, 138 conflicts between witnesses, 139 friendly defense counsel, 139 mistakes, 138, 140 possibilities, 139 pretrial discussions, 137 prior inconsistent statement, 140 prior lies, 140 rapid fire questions, 138 repetitive questions, 137 testifying for the witness, 136 twisting prior testimony, 139 volunteering information, 137 yes or no answer, 136 direct examination, 135 expert, 102 hearsay, 119 defendant’s statement, 121 exceptions, 121

excited utterance, 121 medical diagnosis, 122 statement, 120 trial, 120 truth of matter asserted, 120 impeachment, 103, 135 lay person, 102 emotional condition, 103 handwriting, 103 voice, 103 motive to lie, 105 opinion expert, 102 lay person, 102

emotional condit ion, 103 handwriting, 103 voice, 103 physical or mental incapacity, 105 prior conviction, 106 prior inconsistent statement, 105 privileges, 106 attorney

- client, 108, 109 clergy

- communicant, 108, 111 federal, 108 fifth amendment, 108 government

- informant, 1 08, 112 holder, 107

husband

- wife, 108, 110

non

- federal, 108 psychotherapist

- patient, 108,

111 waiver, 107

re

- direct examination, 135 refreshing recollection, 122 retaliation, 195 18 U.S.C. § 1513, 195

skills audible answers, 132 cop talk, 133 I don’t know, 134 I don’t recall, 134 just the facts, 133 listen, think, answer, 132 memorized testimony, 134 objection rulings, 133 positive and definitive answers,

134 prosecutorial assistance, 133 speak to the jury, 134 speaking to the judge, 133 volunteering inform ation, 137 specific instances of untruthfulness,

105 tampering 18 U.S.C. § 1512, 192_______________ Index xl testimony, 127 Miranda rights, 140 prior criminal history, 140 suppressed evidence, 141 volunteered information, 132 witness and victim protection act, 189,

197

restitu tion, 198 witness compulsory process Bill of Rights, 76_______________ Contributors i 

### Contributors

John Besselman is Branch Chief, Advance Programs, of the Legal Division. Prior to that, he served as Branch Chief, Basic Programs. He graduated from Kent State University with a B.S. in Criminal Justice, Ohio State University Col lege of Law with a J.D., and Georgia Southern University with a Masters in

Public Administration. He has served as a Prosecuting Attorney and also an attorney with the Office of Chief Counsel, U. S.

Customs Service where he trained Customs Service law

enf orcement personnel and served as Attorney

- Advisor to agents and inspectors in the field. He has been a Senior Legal Instructor at the Federal Law Enforcement Training Center since 1997. During that time, he served as Editor of The Quarterly Review , Edito r of the Legal Division Student

Handbook  ̧ and Editor of the Legal Issues Source Book

. Mr. Besselman can be contacted at (912) 267

- 2693 or john.besselman@dhs.gov

.

T

. K

. Caldbeck is a graduate of the University of Texas (B

. A

. ), Oklahoma City University (J

. D

. ), the Army Judge Advocate General’s School (LL

. M

. ). He served in the Navy, the Marine Corps, and the Army and is a former Assistant Professor at the United States Military Academy. He has prosecuted and

de fended cases in both state and federal courts. Mr. Caldbeck

can be contacted at (912) 267

- 3021 or thomas.caldbeck@dhs.gov

.

Jeff Fluck served o n active duty as an Army judge advocate. Assignments included pro secutor, 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 a t Forts McClellan and Leonard Wood. He is a graduate of Haverford College and Washington and Lee University Law School. Mr. Fluck can be contacted at (912) 554

- 4218 or jeff.fluck@dhs.gov

._______________ Contributors ii Keith Hodges is a gradu ate of Furman University (B.A.) and the University of South Carolina (J.D.). He served as a commander, prosecutor, defense counsel, Staff Judge Advocate, and Military Judge in the U.S. Army

, retiring as a Colonel in 2000. For two years while at FLETC, Keit h was detailed to the Department of Defense as the Clerk of Court for the Military Commissions at Guantanamo Bay, Cuba. Mr. Hodges can be contacted at (912)

554

- 4757 or keith.hodges@dhs.gov

.

Keith Hunsucker was an attorney with the United States Department of Justice for over ten years. He was awarded the 1994 Commissioner’s Award for Immigration and Naturalization Attorney of the Year. He is a graduate of the University of Akron and the University of Akron Sch ool of Law. Mr.

Hunsucker can be contacted at (912) 267

- 2596 or keith.hunsucker@dhs.gov

.

J im King was an Assistant United States Attorney for 11 years in Detroit, Michigan, specializing in drug related

homic ide/multiple defendant drug conspiracy prosecutions. Prior to that, he spent 1 year as a Special Agent with the Internal Revenue Service before serving the Drug Enforcement Administration for 20 years in that capacity. Mr. King

continues to teach at the Drug Unit Commanders Academy for

DEA and is the co

- author of the 6th Circuit Criminal Handbook, published annually by Lexis Law Publishing Co. Mr. King can be contacted at (912) 267

- 29 54 or ejames.king@dhs.gov

.

Stephen Knerly is a special agent detailed from the U.S. Department of Health and Human Service, Office of Inspector General, where he has served for 8 years, including a 4

- year detail as instructor to the Inspector General Criminal Investigator Academy. He also served for 9 years as a special agent with the Internal Revenue Service, Criminal Investigation Division, and engaged in the private practice of law for 6 years.

He is a magna cum laude graduate of the University of Miami (J.D.) and the University of South Florida (B.A., M.Acc.) and is a

Certified Public Accountant. Mr. Knerly can be contacted at (912) 554

- 4645 or stephen.knerly@dhs.gov

._______________ Contributors iii Brad Lawrence has served 12 years in state and federal law

enforc ement. He spent three years as a police officer at the University of Oklahoma, and then joined the Immigration and Naturalization Service (INS) as an Immigration Inspector in 1991. In 1992, he joined the U.S. Park Police (USPP)

, graduating first in his US PP class at FLETC. He attended and graduated from the University of San Francisco Law School while assigned to the USPP’s San Francisco Field Office, and

was admitted to the California Bar in 2000. He also served a five year tour of active duty in the U. S. Air Force, where he was a JAG attorney and officer at Lackland AFB, Texas. Mr.

Lawrence can be contacted at (912) 267

- 2729 or brad.lawrence@dhs.gov

.

Phil Lindley served in the Army as a MP and a special age nt with Army CID . As an Army Judge Advocate, he prosecuted and defended criminal cases and served nine years in special operations, including the Joint Special Operations Task Force invading Panama in 1989. Following his Army retirement Phil

worked a s a M EDICAID fraud investigator for the Florida Attorney General, a prosecuting attorney for the Florida Second Judicial Circuit, and as a legal advisor and special agent with the Florida Department of Law Enforcement. He has also served

as an Assistant General Counsel with the DoD Inspector General. He is a graduate of Florida State University (B.S.) and the University of South Dakota (J.D.)

. Mr. Lindley can be reached at (912) 267

- 3198 or philip.lindley@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

._______________ Contributors iv Jim McAdams retired from the DoJ in 2006 after a 25 year career with the United States Attorney ’s Office in the Southern District of Florida. During that time, he served as an AUSA, the Chief of the Narcotics Division, Executive AUSA , Acting USA, Managing AUSA of the West Palm Beach Branch Office, and Senior Litigation Counsel. In 1994 Attorney Gen eral Janet Reno appointed h im to be co

- chair of a Joint Intelligence Community and Law Enforcement Working Group. In June 1995 Attorney General Reno appointed h im as her Counsel for Intelligence Policy. In that position, he served as liaison with

the var ious components of the Intelligence Community and also oversaw all submissions of wiretap and physical search applications by the FBI and NSA to the Foreign Intelligence

Surveillance Court.

John Seaman is a graduate of Augusta State University (A.A.,

B .A.) and Georgia State University (J.D.). Prior to joining the Legal Division, he served as an attorney with the United States Department of Justice and Department of Homeland Security for ten years where he represented the government in immigration matter s before the Executive Office of Immigration

Review. He also served in the United States Army as a staff judge advocate. Mr. Seaman can be contacted at (912) 267

- 2557 or john.seaman@dhs.gov

.

Jenna Solari receive d a B.A. in Psychology and Criminal Justice from the University of Richmond, and a J.D. from the University of Georgia, graduating #1 in her class. She worked as a law clerk for the Hon. Gerald B. Tjoflat in the U.S. Court of Appeals for the 11th Circuit. She was then commissioned as a Naval Officer and served three years as a military prosecutor at Naval Air Station Jacksonville, FL. After fulfilling her military service obligation, she served as an NCIS Special Agent in the Washington, D.C. field offic e, where she participated in counterintelligence investigations and counterespionage operations. Ms. Solari can be contacted at (912) 267

- 3408 or Jennifer.solari@dhs.gov

._______________ Contributors v 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. H e also trained and supervis ed assistant solicitors, train ed police an d code enforcement officers, and address ed community complaints. He assisted the City of Atlanta Council and Mayor’s office s with drafting proposed city ordinances and participated in strategy development sessions with various city officials. He is a

gra duate 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 a n 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 an d city ordinance

offenses. Ms. Story can be reached at (912) 554

- 4447 or michelle.story@dhs.gov

.

Ted Weber is a Captain in the United States Air Force and is the Staff Judge Advocate and Instructor at USAFSIA (AFOSI Academy), detailed to the Legal Divisi on. Captain Weber received a B.A. in Criminal Justice and History from Indiana University and a J.D. from the Indiana University School of

Law

- Bloomington. He served 4 years as a police officer with the Indiana University Police Department. After that, he served as a Special Agent with the U.S. Customs Service and as a Special Agent with Immigration and Customs Enforcement. In 2004, he entered active duty as a Judge Advocate and has served as a prosecutor, defense counsel, and instructor.

Scott Wright graduated Cum Laude from Case Western Reserve University School of Law in 1998 and went on to work as a legal editor for Shepards / Lexis

- Nexis before being hired as a Speci al Agent with the United States Secret Service in

1999. He served for three years in the Detroit Field Office_______________ Contributors vi before coming to the Legal Division in September 2002. He is also a veteran of Operation Desert Storm and a former firefighter with the City of Huntsville, Alabama. Mr. Wright can be contacted at (912) 261

- 4112 or scott.wright@dhs.gov

.